O'Connor and Others v Wiltshire County Council
Jurisdiction | England & Wales |
Judge | Lord Justice Chadwick,Lord Justice Scott Baker,Lord Justice Thomas |
Judgment Date | 09 May 2007 |
Neutral Citation | [2007] EWCA Civ 426 |
Court | Court of Appeal (Civil Division) |
Date | 09 May 2007 |
Docket Number | Case No: C3/2006/0989 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
(HIS HONOUR MICHAEL RICH QC)
LCA/73/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Scott Baker and
Lord Justice Thomas
Case No: C3/2006/0989
Mr Robert Jay QC and Mr Robert Weir (instructed by Hugh James Solicitors of Martin Evans House, Riverside Court, Avenue de Clichy, Merthyr Tydfil, CF47 8LD) for the appellants
Mr Timothy Straker QC and Mr Paul Stinchcombe (instructed by Stephen Gerrard, solicitor to the Wiltshire County Council, Trowbridge, Wiltshire, BA14 8JN) for the respondent
Hearing dates: 14 and 15 February 2007
This is an appeal from an order made on 29 March 2006 in the Lands Tribunal (Member: His Honour Michael Rich QC) on a reference under section 16 of the Land Compensation Act 1973. The question referred was whether the claimants had a valid claim to compensation from the local highway authority under Part I of that Act in the events which had happened.
The claimants are the owners and occupiers of a dwelling house known as 55 Braemor Road on the north western outskirts of Calne in Wiltshire. They claim that the value of their interest in that property has been depreciated by noise caused by the use of the Calne Northern Distributor Road (“the NDR”), Wiltshire County Council is the local highway authority for the NDR. The NDR was opened to traffic on 20 January 2000. On 21 January 2001 the claimants—and 78 others in similar position—made claims for compensation. The County Council refused to entertain those claims on the basis that (as it asserts) the NDR was not a highway maintainable at the public expense at the date when it was opened to traffic and had not become so maintainable.
The Tribunal accepted the County Council's contention that the NDR was not a highway maintainable at the public expense at the date when it was opened to traffic. It was common ground that, if not then maintainable at the public expense, the NDR had not subsequently become so maintainable (within the period of three years of that date or at all). On that basis the Tribunal decided, as a preliminary issue, that section 19(3) of the 1973 Act barred any claim to compensation which the claimants might otherwise have had.
In reaching that conclusion the Tribunal rejected the submission on behalf of the claimants that (if necessary) section 19(3) of the Act could be “read down” under section 3(1) of the Human Rights Act 1998 in order to avoid potential incompatibility with their convention rights (as defined by section 1(1) of the 1988 Act).
Permission to appeal was granted by this Court (Lord Justice Pill) on 31 July 2006.
The statutory provisions
Part I of the Land Compensation Act 1973 provides for compensation in respect of depreciation caused by the use of public works. Section 1(1) of the Act is in these terms:
“1(1) Where the value of an interest in land is depreciated by physical factors caused by the use of public works, then if –
(a) the interest qualifies for compensation under this Part of this Act; and
(b) the person entitled to the interest makes a claim after the time provided by and otherwise in accordance with this Part of this Act,
compensation for that depreciation shall, subject to the provisions of this Part of this Act be payable by the responsible authority to the person making the claim (hereinafter referred to as 'the claimant').”
For the purposes of section 1(1) of the Act, section 1(2) provides that the physical factors include noise, vibration, fumes and artificial lighting; section 1(3) provides that the public works include –“(a) any highway”; and section 1(4) provides that the responsible authority, in relation to a highway, is “the appropriate highway authority”.
Section 1(1)(b) of the 1973 Act requires that a claim to compensation must be made by the person entitled to an interest in land—where the interest qualifies for compensation –“after the time provided” and otherwise in accordance with Part I. Section 2 of the Act sets out the circumstances in which an interest will qualify for compensation. Section 3(1) requires that a claim is to be made by serving on the responsible authority a notice containing particulars of the matters there set out. Section 3(2) is in these terms:
“3(2) Subject to the provisions of this section and to sections 12 and 14 below, no claim shall be made before the expiry of twelve months from the relevant date; and the day next following the expiration of the said twelve months is in this Part of this Act referred to as 'the first claim day'”.
Section 12 (“Tenants entitled to enfranchisement or extension under leasehold Reform Act 1967”) and section 14 (since repealed) have no relevance in the present case. “The relevant date”, in the context of section 3(2), is defined in section 1(9). It means –“(a) in relation to a claim in respect of a highway, the date on which it was first open to public traffic”.
As I have said, the responsible authority, in relation to a highway, is the appropriate highway authority. The appropriate highway authority, in that context, has the meaning given in section 19(1) of the 1973 Act. For present purposes the appropriate highway authority is –“(a) the highway authority who constructed the highway to which the claim relates”. “Highway” includes part of a highway and means “a highway or part of a highway maintainable at the public expense as defined in section 329(1) of the Highways Act 1980” (ibid). Section 329(1) of the 1980 Act defines a highway maintainable at the public expense as “a highway which by virtue of section 36 [of this Act] or of any other enactment (whether contained in this Act or not) is a highway which for the purposes of this Act is a highway maintainable at the public expense”.
Sections 1(9), 3(2) and 19(1) of the 1973 Act must be read in conjunction with section 19(3), which is in these terms:
“19(3) In the application of this Part of this Act to a highway which has not always since 17 October 1969 been a highway maintainable at the public expense as so defined
(a) references to its being open to public traffic shall be construed as references to it being so open whether or not as a highway so maintainable;
(b) for references to the highway authority who constructed it there shall be substituted references to the highway authority for the highway;
and no claim shall be made if the relevant date falls at a time when the highway was not so maintainable and the highway does not become so maintainable within three years of that date.”
Section 24(2) of the Highways Act 1980 gives a local highway authority power to construct new highways. Section 36(2) of the 1980 Act provides (inter alia) that “the following highways shall … for the purposes of the Act be highways maintainable at public expense: – (a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority”. Section 37 of the 1980 Act provides for a highway to become maintainable at the public expense by dedication. Section 38 gives a local highway authority power, by agreement, to adopt an existing way. On adoption the way becomes a highway maintainable at the public expense.
Section 274 of the 1980 Act provides that:
“274 A council may contribute towards any expenses incurred or to be incurred by a highway authority if, in the opinion of the council, the expenditure is or will be of benefit to the council's area.”
In that context it is pertinent to have in mind (i) that, outside Greater London, the county council will be the highway authority for all highways in the county (whether or not maintainable at the public expense) which are not highways for which (under section 1(1) of the 1980 Act) the Minister is the highway authority – section 1(2) of that Act—and (ii) that “council” is defined – by section 329(1) of the Act – in terms which include a district council.
Section 278(1) of the 1980 Act is in these terms (so far as material):
“278(1) A highway authority may, if they are satisfied it will be of benefit to the public, enter into an agreement with any person –
(a) for the execution by the authority of any works which the authority are or may be authorised to execute, or
(b) …
on terms that that person pays the whole or such part of the cost of the works as may be specified in or determined in accordance with the agreement.”
The underlying facts
The genesis for the construction of the NDR can be found in the North Wiltshire Local Plan, adopted in 1993. Paragraph 2.8 (in proposal H3 – Calne) records that:
“2.8 Land to the north of the town is proposed for residential development. A new distributor road (see Proposal T7) is required to provide satisfactory access. Ultimately this would be extended around the north side of the town to link the A4 Chippenham Road to the A3102 Oxford Road… .”
Proposal T7 (Calne Northern Distributor Road) was in these terms:
“4.7 The entire road is intended to be provided in connection with housing (Proposal H3) and employment (Proposal E4) development proposed around the northern edge of Calne. The precise alignment of this northern distributor road will need to be settled taking into account highway design, the setting of the listed buildings, and the need to serve the allocations for housing and employment. The completion of such a route will, in particular, enable the heavy goods traffic from the main industrial area...
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