All "civilised and democratic'' countries have some control over property use, a top Jamaican constitutional lawyer told the Court of Appeal yesterday.

And Dr. Lloyd Barnett said: "There is no deprivation when the legislature seeks to merely regulate the use of property -- it does not offend the Constitution.'' He was speaking on the second day of an appeal by Solicitor General William Pearce against a Supreme Court decision to overturn the controversial Act of Parliament outlawing fast food franchises with a foreign flavour.

The law was passed after Grape Bay Ltd., controlled by ex-United Bermuda Party Premier Sir John Swan and Government backbencher Maxwell Burgess, won approval to operate a McDonald's burger restaurant in Bermuda.

But Grape Bay Ltd. last year appealed to Supreme Court, claiming the firm had been deprived of their right to property -- agreements with McDonald's and others -- which are guaranteed under the Constitution and won. Puisne Judge Vincent Meerabux ruled that the agreements were property and that Grape Bay had been unfairly treated under the Prohibited Restaurants Act, pushed through Parliament by a "Rebel Five'' Government group with support from the Progressive Labout Party. Dr. Barnett, appearing with Mr. Pearce, said: "This appeal is concerned with the validity of an Act of Parliament and the exercise of legislative power and not with the exercise of executive discretion and therefore must be presumed to be expressing the will of Parliament on a public matter.'' And he added: "The Act prohibits the respondent from carrying out a particular type of business in a particular way and does not contain any other restrictions as such.

"What has been lost is the right to use property in a certain way. If we take a case of, say a fisherman, who might have a contract to supply fish to a particular exporter, but there is a law which prevents him from fishing in that particular season in which he has the contract, it's regulating his trade.'' Anti-burger law not unconstitutional -- lawyer And he said that even ownership of land is governed by a host of regulations covering the use it can be put -- but insisted that was not deprivation, but regulation.

But Court of Appeal president Sir James Astwood butted in: "He can still operate a restaurant -- but that's not the thing. They say they have rights under this contract with McDonald's and that has been taken away completely.'' And, quoting Commonwealth constitutions, he said it was recognised that it was "often essential'' for Governments "to regulate the use of property, sometimes substantially, so as to make impossible the use or development.'' But Dr. Barnett added that if Grape Bay's arguments were accepted, it would make it "impossible'' for Parliament to make laws governing land use if contractual agreements "were thereby affected.'' He said: "Accordingly, the interpretation given to the word `deprive' against the background of a history of legislative prohibitions and restrictions affecting the use or property should not result in curtailing that legislative power.'' He quoted a committee report on foreign fast food franchises, which recommended strict controls over advertising and signs.

Dr. Barnett said: "The committee said they should not be allowed to trade under a foreign company name -- we have seen letters and correspondence that that is not possible with McDonald's. It's not in their methodology.'' Grape Bay's lawyer Mark Diel said that quotes from heated House of Assembly debates had been included in bundles of documents given to the Appeal Court by mistake.

He said the offending sections had been struck out "on application by the Attorney General in a private hearing in Chambers.'' It was agreed by both sides that the documents would be amended.

RESTAURANT EAT