Decision Nº LCA 354 2009. Upper Tribunal (Lands Chamber), 29-07-2010
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Milwyn Jarman QC |
| Date | 29 July 2010 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LCA 354 2009 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2010] UKUT 268 (LC)
LT Case Number: LCA/354/2009
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
COMPENSATION--whether the 3 year time limit provided by section 19(3) of the Land Compensation Act 1973 for making a claim for compensation in respect of depreciation in value of interest in land caused by the use of a highway is incompatible with the claimants’ Convention rights under article 1 of the First Protocol and/or article 6 of the European Convention of Human Rights and if so whether the section can be interpreted under section 3 of the Human Rights Act 1998 so as to be compatible
IN THE MATTER OF A NOTICE OF REFERENCE
and
Bridgend County Borough Council Compensating
Authority
Re: Hendre Relief Road Pencoed Bridgend
Before: HH Judge Jarman QC
Sitting at: Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ET
on 12 July 2010
Mr Peter Weir QC, instructed by Hugh James Solicitors, Cardiff for the Claimants
Mr Paul Stinchcombe, instructed by Bridgend County Borough Council
The following cases are referred to in argument:
O’Connor v Wiltshire County Council LCA/73/2005
O’Connor v Wiltshire County Council [2007] EWCA Civ 426
J. A. Pye (Oxford) Ltd v UK (2008) 46 EHRR 45
Antonetto v Italy (2003) 36 EHRR 10
Marcic v Thames Water Utilities Ltd [2004] 2 AC 42
Capital Bank AD v Bulgaria (2007) 44 EHRR 48
Raynor v UK (1987) 9 EHRR 375
Mathews v Ministry of Defence [2003] 1 AC 1163
Wilson v First Country Trust (No 2) [2004 1 AC 816
R (Kehoe) v DWP [2006] 1 AC 42
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Mrs Thomas and the other claimants in these consolidated references own and live in dwellings near to a highway known as Hendre Relief Road Pencoed Bridgend (the road) which was first opened for public use on 9 July 2002 and adopted by Bridgend County Borough Council (the council) on 29 June 2006.
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The road was built by Redrow Homes South Wales Ltd (the developer) pursuant to an agreement dated 5 April 2002 with the council under section 278 of the Highways Act 1980 and other enabling statutory provisions. The agreement contained the following relevant provisions:
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That the council would adopt the road upon the issue of a letter of acceptance following a 12 month maintenance period after substantial completion to the reasonable satisfaction of the council inspector.
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That the developer would provide a bond in the sum of £554,270 so that should the developer default in its obligation to construct the road in accordance with the terms of the agreement then the council may carry out the works and call upon the bond for reimbursement.
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That the developer would indemnify the council in respect of compensation claims under the Act.
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In the present case, however, the developer did not complete works to the road to enable such a letter to be issued for over 3 years, despite being pursued by the council to do so.
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The claimants allege that the values of their homes have been diminished as a result of noise and other nuisance caused by use of the road. They wish to claim compensation from the council under the Land Compensation Act 1973 (the Act) but section 19(3) bars such a claim where, as here, the road is not adopted within 3 years of first being open to public traffic.
The Preliminary issues
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The claimants argue that the subsection amounts to a statutory bar on their right to compensation and as such is incompatible with their rights under article 1 of the First Protocol to and/or article 6 of the European Convention of Human Rights. The former provides that every person is entitled to the peaceful enjoyment of his possessions. The latter provides that in the determination of his civil rights everyone is entitled to a fair and pubic hearing within a reasonable time by an independent and impartial tribunal established by law. If so, the claimants further argue that the subsection can be interpreted under section 3 of the Human Rights Act 1998 so as to be compatible with their convention rights and to allow their claims for compensation to proceed.
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Accordingly by an order dated 26 March 2010 the President of this Tribunal consented to those issues being tried as preliminary issues and those issues came before me for determination. The issues as ordered to be tried also referred to article 8 of the Convention but Mr Weir QC who appeared before me on behalf of the claimants made it clear that he no longer sought to place reliance upon that article. It is to be assumed for the purposes of such determination that the values of the claimants’ homes have decreased as a result of nuisance caused by use of the road.
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The unchallenged evidence before me shows that the present references are not isolated cases of the right to compensation lapsing as a result of delays in the adoption of the relevant road. Mr Neil Stockdale, a solicitor acting for the claimants, has given details of several other schemes where the road has not been adopted within the 3 years and compensation has consequently been denied. In those cases where Mr Stockdale has been able to ascertain the detail of the agreement under which the roads were constructed, there was an indemnity provided by the relevant developer to the highway authority similar to the one given in this case.
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Indeed it is not the first time that this problem has been considered by this Tribunal. Similar arguments to those now deployed on behalf of the claimants were advanced by Mr Weir before His Honour Michael Rich QC in O’Connor v Wiltshire County Council LCA/73/2005. The judge accepted that noise pollution could so affect a property as to involve a breach of the owners’ rights under article 1. However he went on to hold that once it was conceded, as it was, that there is no general rule that interference with the enjoyment of property required compensation, the provisions for compensation in the Act were not part of the rights safeguarded by article 1. Moreover, he held that the provisions do not create a procedural bar to an established right so as to amount to a breach of article 6, but define and limit the extent of the rights created by the Act.
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Permission to appeal that rejection of Mr Weir’s arguments was given by Lord Justice Pill and the matter was fully argued before the Court of Appeal in O’Connor v Wiltshire County Council [2007] EWCA Civ 426. The Court held that on the facts of that case, the highway authority had adopted the road at the date it was first open to the public, so those claimants succeeded on that basis. Lord Justice Chadwick, with whom the other members of the Court agreed, expressly declined at paragraph 60 to make observations on whether there would be potential incompatibility in a case in which the road was not adopted when it was first open to traffic, as such views would be obiter and serve no useful purpose.
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The way is thus open for Mr Weir to repeat his arguments before me in the present references. In doing so he properly accepts that although the decision of Judge Rich is not binding upon me, it is to be accorded respect. With that respect however, he submits that the decision is wrong. Before turning in more detail to the reasons for making that submission, it may be helpful to set out the background to the passing of the Act and its relevant provisions.
The statutory scheme
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Before the Act was passed there was no right to compensation for depreciation in the value of interests in property caused by the use of new public works. In a paper entitled “Development and Compensation –Putting People First” and dated October 1972 the Secretaries of State for the Environment, Scotland and Wales identified what they referred to as a new approach to striking the right balance between ensuring essential developments are undertaken for the benefit of the whole community and the no less compelling need to protect the interest of those whose property may be injured in the process. In paragraph 2 of the paper this conflict was said to be a conflict of right with right – “the public’s undoubted right to...
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