Compensation for injurious affection — Part I of Land Compensation Act 1973 — Noise nuisance — Highways built by developer and later adopted by highway authority — Whether references statute-barred — Whether road became public highway maintainable at public expense within three years of opening to public traffic — Whether compensating authority estopped — Whether claims excluded under s19(3)of 1973 Act — Whether section 3 duty under Human Rights Act 1998 applied
Residential and other development was to take place on some 45ha of land. The developer agreed with the highway authority to construct two sections (A-B and C-D) of a distributor road at its expense. Those sections were adopted as public highways, maintainable at public expense, on 7 September 2000. Section B-C was constructed by the highway authority. The claimants owned dwelling-houses close to section C-D. On 1 April 1997, claim forms were served on their behalf seeking compensation for noise nuisance under Part I of the Land Compensation Act 1973. Notices of reference were made to the Lands Tribunal on 28 March 2003. Under section 19(2A) of the 1973 Act, the six-year period of limitation expires six years after the first claim day, which is the first claim day is the first anniversary of the relevant date. The relevant date is the day upon which a highway is first opened to public traffic. The compensating authority contended, for the purposes of the statutory provisions, that the highway was section C-D, and that that section was first opened to public traffic in September 1994, or on 8 November 1995 at the latest. Accordingly, the claims became statute-barred no later than 8 November 2002. The authority also relied upon section 19(3) of the 1973 Act; this provided that no claim could be made where a highway was not maintainable at public expense and had not become so maintainable within three years of being opened to public traffic. The claimants contended that the entire distributor road constituted the highway for the purposes of the provisions, and that because the last section had been opened on 1 April 1996, the references were not statute-barred; if they were, the compensating authority were estopped from relying upon the Limitation Act 1980. The tribunal ordered the hearing of preliminary issues.
Decision: The claims were dismissed.
(1) The concept of the scheme, as developed in cases on compensation for compulsory acquisition, does not have any direct relevance to the quite different set of statutory provisions under the 1973 Act. The question to be asked when determining the relevant date is when that part of the highway from which the noise arises was first opened to public traffic. Since the claims were based upon section C-D, that section constituted the highway for the purposes of the 1973 Act. It was not necessary to treat the entire distributor road as the highway, because the traffic on sections A-B and B-C, actual or reasonably anticipated, could be taken into account in assessing any compensation for depreciation in value attributable to noise from section C-D. If some of the claimants had claims in respect of section B-C, the same principles would apply. Davies v Mid Glamorgan County Council (1979) 38 P&CR 727 did not apply. (2) Section C-D was first opened to public traffic on 8 November 1995, and section B-C on 26 January 1996. (3) Since the notices of reference had been given on 28 March 2003, more than six years after 8 November 1996 (or 26 January 1997, if that date applied), they were statute-barred: Bateman v Lancashire County Council [1999] 2 EGLR 203 followed. (4) The compensating authority were not estopped from contending that the road had first been opened to public traffic before April 1996 or from asserting that section C-D was the highway rather than the entire distributor road. (5) Since section C-D (and A-B) of the distributor road had not become maintainable at public expense until 7 September 2000, more than three years after first being opened to public traffic, section 19(3) of the 1973 Act applied and excluded the claims. That provision would also have excluded claims if the highway consisted of the entire distributor road. In such a case, section 19(3) would apply if there were a time during which the entirety of such a highway was not maintainable. The tribunal’s duty under section 3 of the Human Rights Act 1998 could not be applied retrospectively in respect of an allegation that section 19(3) breached Article 8(2) of the European Convention on Human Rights. In any event, the provision sought to balance the interests of the claimants with those of the wider community.
The following cases are referred to in this report.
Bateman v Lancashire County Council [1999] 2 EGLR 203; [1999] RVR 125, LT
Bell (John T) & Sons Ltd v Newcastle upon Tyne City Council (1971) 220 EG 1771, 220 EG 1900, (1972) 221 EG 39, LTDavies v Mid Glamorgan County Council (1979) 38 P&CR 727; [1993] RVR 7, LT
Hillingdon London Borough Council v ARC Ltd (No 1) [1999] Ch 139; [1998] 3 WLR 754; [1998] 3 EGLR 18; [1998] 39 EG 202; [1998] RVR 242, CA
Marcic v Thames Water Utilities Ltd; sub nom Thames Water Utilities Ltd v Marcic [2002] EWCA Civ 64; [2002] QB 929; [2002] 2 WLR 932; [2002] 2 All ER 55
R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213; [2000] 2 WLR 622; [2000] 3 All ER 850, CA
Wilson v Liverpool Corporation; sub nom Wilson (Personal Representatives of FW Wilson) v Liverpool City Council [1971] 1 WLR 302; [1971] 1 All ER 628; (1971) 22 P&CR 282, CA
This was the hearing of preliminary issues in references made by Mr and Mrs Price and 10 other claimants for the determination of compensation payable by the compensating authority, Caerphilly County Borough Council, under Part I of the Land Compensation Act 1973.
John Bates (instructed by Hugh James, of Merthyr Tydfil) appeared for the claimants; Barry Denyer-Green (instructed by the solicitor to Caerphilly County Borough Council) represented the defendants.
Giving the decision of the tribunal, Mr George Bartlett QC, president said:
Decision on preliminary issues
[1] The claimants in these references seek compensation under Part I of the Land Compensation Act 1973 for depreciation caused by the use of a new highway. At all potentially material dates, they owned and occupied houses at Maes Watford, Watford Park, Caerphilly. The compensating authority are the successors, as from 1 April 1996, to Mid Glamorgan County Council (the county council), which, as highway authority, procured the construction of the road to which the claims relate, namely the Caerphilly western distributor road. The preliminary issues, which I ordered to be determined on the application of the compensating authority, are intended to resolve the question as to whether the claimants will be entitled to compensation if they can show, in due course, that their houses have reduced in value as a result of noise from the new road. Following the hearing, I received written closing submissions between 11 and 14 May 2003.
[2] The issues were stated to be whether:
(a) the reference made by the claimants is statute-barred under section 19(2A) of the Land Compensation Act 1973; if not
(b) the road in respect of which the claimants are claiming compensation under Part I of the 1973 Act became a public highway maintainable at public expense within three years of the opening of the said highway to public traffic;
(c) the claimants have valid claims for compensation (save as to quantum) under Part I of the 1973 Act, having regard to section 19(3) thereof. |page:158|
Factual background
[3] Planning permission for residential development at Maes Watford was first granted on appeal in October 1980. In April 1983, permission was granted for road works, sewers and the layout of 21 building plots, and, in December 1983, permission was granted for 13 houses. In July 1983, the Caerphilly Basin local plan was adopted by Rhymney Valley District Council (the district council). In the section on housing, proposals H1(a) and H1(b) stated that residential development would take place at Cwm Farm and Cwm Rawlin Farm, a total of 45ha. A note to proposal H1(a) said that the precise developable area would be delineated in a development brief. The development brief was approved in October 1983. In July 1989, following the completion of complex section 52 and highway agreements, outline planning permission was granted for residential, shopping, education and public house/hotel uses, together with related open-space provision and highways in accordance with proposals H1(a) and H1(b). A masterplan was submitted in January 1990, which showed the disposition of the proposed land uses and the layout of the principal roads, including a peripheral road on the south of the area to be developed, and, in July 1991, reserved matters in respect of the principal roads and sewerage were approved.
[4] The peripheral road became the Caerphilly western distributor road. It runs in an elevated position above the land now developed, from Watford Road on the east to the Pen Rhos roundabout on the B4600 Nantgarw Road to the west. There is access to the developed area at two points along the road.
[5] Among the agreements entered into by the prospective developers was an agreement made on 9 August 1994, pursuant to section 11 of the Local Government Act 1972 and sections 1 and 38 of the Highways Act 1980, between the county council and Cofton Land and Property (Caerphilly) Ltd, relating to highway works. Included in the highway works that the developer was required to carry out was the construction of two sections of the distributor road: (i) section A-B from point A at Pen Rhos roundabout at the western end to point B, the junction of one of the two access roads; and (ii) section C-D, from point D on a realigned Watford Road at the eastern end to point C, the junction of the second access. Both sections were constructed by Cofton in fulfilment of the agreement. They were adopted as a highway maintainable at public expense on 7 September 2000. The section of road between them, namely B-C, was constructed by a contractor, Walters Group, employed directly by the county council. The Maes Watford houses lie close to, and at a lower level than, section C-D, and it is from this section that the traffic noise that they say has reduced the value of their houses comes.
[6] Claim forms were served on the compensating authority by The William Ricketts Partnership on behalf of the claimants, on 1 April 1997. Notices of reference to the tribunal were given on 28 March 2003.
Statutory provisions
[7] The relevant provisions of Part I of the 1973 Act, as amended, are
Right to compensation
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 the 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”).
(2) The physical factors mentioned in subsection (1) above are noise, vibration, smell, fumes, smoke and artificial lighting and the discharge on the land in respect of which the claim is made of any solid or liquid substance.
(3) The public works mentioned in subsection (1) above are-
(a) any highway;
…
(4) The responsible authority mentioned in subsection (1) above is, in relation to a highway, the appropriate highway authority and, in relation to other public works, the person managing those works
…
(9) Subject to section 9 below, “the relevant date” in this part of this Act means –
(a) in relation to a claim in respect of a highway, the date on which it was first open to public traffic;…
Claims
3. -(1) A claim under this Part of this Act shall be made by serving on the responsible authority a notice containing particulars of-
(a) the land in respect of which the claim is made;
(b) the claimant’s interest and the date on which, and the manner in which, it was acquired;
(c) the claimant’s occupation of the land (except where the interest qualifies for compensation without occupation);…
…
(2) Subject to the provisions of this section and of sections 12 and 14 below, no claim shall be made before the expiration 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”…
Assessment of compensation: general provisions
4. -(1) The compensation payable on any claim shall be assessed by reference to prices current on the first claim day.
(2) In assessing depreciation due to the physical factors caused by the use of any public works, account shall be taken of the use of those works as it exists on the first claim day and of any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date…
Information for ascertaining relevant date
15. -(1) The responsible authority in relation to a highway or other public works shall keep a record and, on demand, furnish a statement in writing of
(a) the date on which the highway was first open to public traffic, or was first open to public traffic after completion of any particular alterations to the carriageway of the highway; …
Interpretation of Part I
19. -(1) In this Part of this Act
…
“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…
(2A) For the purposes of the Limitation Act 1980, a person’s right of action to recover compensation under this Part of this Act shall be deemed to have accrued on the first claim day.
(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 defined above-
(a) references to its being open to public traffic shall be construed as references to its 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.
Issues
[8] The questions raised by the parties in relation to the preliminary issues are:
(i) What is the “highway” for the purposes of the application of the statutory provisions? Is it, as the claimants assert, the whole of the distributor road, or is it, as the compensating authority contend, only section C-D?
(ii) When was the highway, as identified in (i), first open to public traffic (the relevant date for the purposes of the claims)?
(iii) Was the date of the opening to public traffic more than six years before the date upon which notices of reference to this tribunal were given (the limitation period)? Are the claims therefore, in the absence of estoppel, statute-barred?
(iv) If the period between the dates in (iii) was more than six years, are the compensating council nevertheless estopped, as the claimants contend, from asserting that the date of opening was more than six years before the notices of reference?
(v) If the highway is the whole of the distributor road, are the claims ruled out by section 19(3) in view of the fact that sections A-B and B-C did not become maintainable at the public expense within three years of the relevant date, whenever that might be? |page:159|
[9] On question (v), Mr John Bates, who appeared for the claimants, said that if the claimants failed on this question they would wish to pursue their claim elsewhere on the basis that section 19(3) was incompatible with the European Convention on Human Rights (ECHR).
Evidence
[10] For the compensating authority, Mr Barry Denyer-Green called four witnesses. His first witness, Mr Thomas David Hadley, said that, prior to local government reorganisation on 1 April 1996, he had been employed as the chauffeur to the chairman of the district council. Part of his duties was driving the chairman to civic functions. He said that he recalled that, on 29 March 1996, he drove the then chairman, Councillor Graham Evans, to the official opening of the western distributor road. The opening was performed by Councillor Luther, the chairman of the county council. He said that he recalled this official function because it was the last official working day of the district council before reorganisation. He rejected the suggestion that the opening had taken place on 1 April 1996, the date of reorganisation.
[11] Mr Martin Huw Sprackling Jones said that he was now employed by Caerphilly County Borough Council, the compensating authority, and that, prior to 1 April 1996, he had been employed as a technician with the county council since 1987. He said that he had reviewed the files relating to the road and had made his statement on the basis of these. He produced documents from the councils’ records. He said that inquiries had been made of Glamorgan Engineering Consultancy, an agency of the county council, and Walters Group, the company that had constructed section B-C of the road. The Walters Group records showed as the commencement date 27 August 1995, as the date of substantial completion, 26 January 1996, and as the date of the maintenance certificate, 26 January 1997.
[12] Mr Mark Andrew James MRICS said that he had been employed as a senior valuer with the compensating authority since 1 April 1996, and that before then he had been employed by the district council. He said that Glamorgan Engineering had written to him on 7 July 1999, saying that section B-C had opened on 26 January 1996. He had told Mr William Ricketts, the claimants’ agent, of this soon afterwards. He also stated it in a letter to Mr Ricketts dated 7 January 2002. Mr James said that he lived in the Caerphilly area, and he knew from his own knowledge that the entire road had been open prior to the official opening. He said that he did not know about dates. He was given the date of 26 January 1996 and saw no reason to question it. He agreed that he could not say that it was still not open on 15 March 1996, as another witness, Mr Hart, had stated. Other claims had been settled on the basis that 26 January 1996 was the opening date. He had understood that the official opening took place on 1 April 1996, and he believed that, initially, he had thought that that was the relevant date. However, as information came to light, it became clear that they were talking of 26 January 1996 as the date, and then about different dates for different sections.
[13] Mr Maurice John King said that he was a director of Cofton Ltd, the operating company of the Cofton Group, and managing director of Cofton Land & Property. Cofton Land & Property (Caerphilly) Ltd was a wholly-owned subsidiary of Cofton Ltd, and had acquired the land known as Cwm Farm, Caerphilly, in 1993. It had entered into agreements with housebuilding companies, Westbury, Ideal Homes and McAlpine, to develop neighbourhoods within the site. Cofton agreed to put in place roads, sewers and services to enable the residential development to take place. It entered into agreements with the county council and agreed to construct section C-D of the road before any residential development began on site. It was also agreed that, within 15 months of the start of construction of section C-D, section A-B would also be constructed. Section C-D was completed to base-coat tarmac on 2 September 1994, and this road, together with other roads in the development, was open to public traffic for the viewing of show homes on 30 September 1994. Section A-B was completed to base-coat stage on 28 July 1995. By letter dated 8 November 1995, the county council confirmed that the roads between D1 and D2 and C had been completed to wearing-course standard, and this letter was effectively a completion certificate for the purpose of the agreement. They also confirmed, in a letter of 10 November 1995, that the bond covering the construction of section C-D had been reduced to what was effectively a residual level. Cofton received confirmation from the compensating authority by letter dated 13 September 2000 and an acceptance certificate dated 7 September 2000, that sections A-B and C-D had been adopted.
[14] As far as section B-C was concerned, Mr King said that he himself had driven along it on numerous occasions after 26 January 1996, and so had other people. He disagreed with the claimants’ witness Mrs Pamela Evans, who said that on the day – 1 March 1996 – that she moved into her new house on the estate, section B-C was still blocked with concrete blocks. He said that occasionally, when work was being done to it, a road might be blocked for the whole or part of a day, and he could not say that there were not times when concrete blocks were not placed across the road. As managing director, he visited the site approximately every two to three weeks, and after 26 January 1996 and before 1 April 1996 he drove two or three times along the full length of the road from Pen Rhos roundabout to point D2. Other cars also traversed the road. There was a junction on section B-C with Blackbrook Road to the south and it was necessary for people to drive along section B-C in order to gain access to Blackbrook Road.
[15] Mr Christopher George Brown said he had been employed by Gloucestershire County Council in their transportation planning unit since February 1998. Before then, he had been employed by the compensating authority in their highways department as a highways liaison officer, and prior to local government reorganisation on 1 April 1996, he had been employed in the same capacity by the county council. He had written the letter of 8 November 1995 to Cofton that Mr King had referred to, and he said that he could confirm that it was the practice of the former county council to issue a letter, as opposed to a formal certificate, to evidence the completion of highway works.
[16] Mr Martin Lennon BSc MRICS said that he had been employed as a senior valuer in the property division of the compensating authority since 1 April 1996 and that, prior to that date, he had been employed by the county council from 1991. He referred to the statement of Mr Kenneth John Cooper FRICS on behalf of the claimants, and he said that he recalled that he had had a conversation with the late William Ricketts in January 1996. He was asked by Mr Ricketts what was to be the date of the opening of the road. Mr Lennon said that he had made enquiries of someone in the engineers department, who advised him that the entire road was already open but that the official opening ceremony was to take place on 1 April 1996, to coincide with local government reorganisation. He called Mr Ricketts back within around 15 minutes to tell him this. He said that the first time that he was asked to recall this conversation was on 29 April 2004, but he did recall it because of the reference to the official opening of a road that was already open.
[17] For the claimants, Mr John Bates called six witnesses. Mr Darren Mallet said that he had lived at 12 Heol Ynys Ddu in the new development and, before moving in, on 7 July 1995, he had taken a video, showing Ffordd Traws Cwm (the new estate road running northwards from point C), Heol Ynys Ddu and the building plot of his property. He showed this video. He said that, at the time, there was no construction work taking place on the middle section of the bypass.
[18] Mr David Wilkes, of 25 Maes Watford, one of the claimants, said that he and his wife had lived at the address since October 1984, when the house was first built. He said that he was aware when he bought the house that planning permission has been granted in 1980 and 1983 for residential development, and he produced a local land charges search of June 1984. In answer to the question “Have the Council approved any proposals by themselves for (i) the construction of a new road…?” the certificate stated: “Yes a proposed route under consideration for the proposed Western Peripheral Road lies adjacent to the south of the property.” Mr Wilkes said that, in 1990, he had been involved in a number of meetings with the district council at which the plans for Cwm Farm were discussed. It was clear from the proposal then being advanced that the western distributor road would run very close to the back of his house and would be elevated above the level of his garden. He signed a petition from the residents of Maes Watford against the |page:160| proximity of the road and, in particular, its elevation. On 17 June 1994, he was sent a letter by Mr Ricketts, of The William Ricketts Partnership, enclosing a partially completed claim form, and, on 16 December 1996, he was sent a letter by Mr Cooper, of The William Ricketts Partnership, saying that since the new road had officially opened on 1 April 1996, a claim on his behalf would be submitted a year and a day after that. Mr Wilkes said that he was in contact with the compensating authority in 2000 about the delay in dealing with his claim, and, on 27 June 2000, the chief engineer wrote saying, inter alia, that he hoped that by early autumn, they would be in a position to consider firm offers of compensation. This, however, did not happen.
[19] In June 1994, Mr Wilkes complained to the Local Government Ombudsman about the county council’s conduct over the road. The ombudsman later rejected the complaint. The council’s observations to the ombudsman and the documents annexed to these made clear, Mr Wilkes said, that the western distributor road was a single scheme. The 1983 development brief had stated:
Access to the site will be gained via a western peripheral road commencing at Penrhos roundabout and terminating in Watford Road in the vicinity of the former reservoir.
And an officer’s report to the development services committee meeting of 27 February 1990 said:
The peripheral route is seen as an important contribution to the highway hierarchy serving Caerphilly, especially if the M4 at Thornhill is constructed. Extraneous traffic from and to the Caerphilly Mountain will be able to travel along the Caerphilly By Pass and the peripheral road as a more convenient route than the present involving St Cenydd Road, Lon-y-Llin and Watford Road (Hill).
Mr Wilkes said that he thought Mr King was mistaken in saying that he had driven down the road many times after 26 January 1996.
[20] Ms Catherine Elizabeth White, of 10 Clos y Pant, Caerphilly, said that she moved into her house on 1 March 1996, having exchanged contracts on 23 February 1996. The house lies to the north of section B-C of the road. She had made a claim for compensation and had been made an offer, but no compensation had been paid because of the question of when the road had opened. Ms White said that a couple of weeks prior to completing, she had viewed the house from the new road and could remember standing near blocks painted red and white that prevented traffic from moving along the stretch of road. The blocks were approximately one-third of the way along section B-C from point C, to the east of the Blackbrook Road junction. The road itself was finished. There was a bench in the garden of her house and it was quiet sitting there until the road opened. If the barrier had not been there, it would have been possible to see traffic moving along the road, and she would soon have become aware of it had the barrier not been there.
[21] Ms White said that, before she moved in, she had lived elsewhere in Caerphilly and that she worked in Cardiff. On her way back from work, she used to visit her mother, who also lived in Caerphilly. There was always a traffic jam by the industrial estate to the north of the Watford Road junction, and she would have been aware had the new road been open to traffic because this would have been a convenient way of avoiding it.
[22] Ms Pamela Susan Evans, of 5 Clos y Pant, Caerphilly, said that she moved into her house on 1 March 1996, having exchanged contracts on 22 December 1995. This house, too, lies to the north of section B-C. Ms Evans said that she had made a claim for compensation and had been paid because she had exchanged contracts prior to 26 January 1996. At the time the house was being built, it had been possible to drive up the new road from the Pen Rhos roundabout to access Blackbrook Road, but the road was not finished. It was not possible to reach her house along the road until after she had moved in. The road had been stopped up by concrete blocks. She said she could see the blocks through the trees outside her house. The road had not been surfaced at the time she moved in on 1 March 1996. By Easter, which was on 7 April 1996, the new road was open, and Ms Evans said that she recalled telling her mother at that time to come to the house along it since that was now the direct route.
[23] Mr Neil Griffiths Hart said that he was a principal engineer with the development group at the Vale of Glamorgan Council. Prior to 1 April 1996, he was employed as an engineer by the county council. Part of his role had been to oversee the construction of new roads associated with new housing developments within the Rhymney Valley district. He had been involved in the estate roads relating to the housing development at Cwm Farm, where Cofton constructed the infrastructure and then sold off areas of land to various housing developers. He had attended the development site on several occasions. According to his work diary, his last visit to Rhymney Valley prior to local government reorganisation was on 15 March 1996. At no time during any of his site visits to the development was the bypass road open to public traffic. Mr Hart said that he had driven along the road as a representative of the county council and Mr King also would have been able to do so as a representative of the contractor, but the public was not allowed to use it. Each time he visited the site there were blocks across the road and site traffic only could use the road west of point C. Mr Hart said that he used to visit the development at least once a week. When he visited it on 15 March, he said that the wearing course was not on section B-C of the new road. He accepted that an e-mail of 19 January 2004 from the Walters Group, the contractor for section B-C, which stated that the date of substantial completion of section B-C was 26 January 1996, suggested that the road would, at that stage, have had a finished surface, although he thought that one could have substantial completion without a wearing course. Substantial completion, however, did not necessarily mean open to the public. The letter of Glamorgan Engineering Consultancy of 7 July 1999 to the compensating authority, stating that section B-C was opened on 26 January 1996, he accepted, suggested that the finished surface was on the road at that date, and it also suggested, he agreed, that it was open to public traffic. He himself had never seen traffic using the road.
[24] Mr Cooper said that he was a chartered surveyor and sole principal in The William Ricketts Partnership. His firm had written to the owners of houses that it thought might be affected by the Caerphilly western distributor road, saying that the firm specialised in obtaining compensation for owners of dwellings the value of which had fallen as a result of a new or improved road coming into use. His firm had been instructed by 133 claimants in relation to claims for depreciation caused by the new road. The road was, he said, effectively a bypass scheme because, once completed, it would allow traffic to access the A468 and the A470 without having to travel through Caerphilly town centre. Mr Cooper said that he had been in partnership with Mr William Ricketts until Mr Ricketts’ death on 21 May 1999. He said that he distinctly recalled having had a conversation with his late partner, during which Mr Ricketts conveyed to him information that he had received from the county council concerning the title of the road scheme and the road opening date. He believed that this conversation took place in January 1996. Mr Ricketts had told him that he had been informed by the county council that the scheme, originally known as the Caerphilly bypass, should now be referred to as the Caerphilly western distributor road and that the road opening date was to coincide with the local government reorganisation, due to take place on 1 April 1996. To the best of Mr Cooper’s recollection, that information had been given to Mr Ricketts during a telephone conversation he had had with Mr Lennon of the former county council. Following his conversation with Mr Ricketts, Mr Cooper said, he had given instructions for the name of the scheme to be changed on the computer system, and the computer database showed that this had been done on 22 January 1996.
[25] Mr Cooper said that, in January 1996, he went to investigate properties that might be clients, and he saw, at point C, a timber barrier. He paid another visit in March 1996, taking the same route as before from D to C. The same timber beam was there, preventing access to section B-C. He said that he did not know the date upon which the conversation between Mr Ricketts and Mr Lennon had taken place. His understanding was that the gist of the conversation was that there had been an estimate of when the opening date would be. He said that he |page:161| saw no need to check later the date of actual opening because a defined date had been given, the date of local government reorganisation. He recalled that there had been an official opening of the road around that time. In view of the information that had been given, he saw no need to ask for a section 15 certificate on the date of opening.
[26] Mr Cooper sent 131 claim forms under cover of a letter sent by recorded delivery on 27 March 1997. The letter said that the forms were due for submission on 1 April 1997, and each form referred to the works concerned as the Caerphilly western distributor road and gave as the relevant date 1 April 1996. A further claim form, similarly completed, was submitted on 6 August 1997, in respect of the houses with which the present references are concerned. Having submitted these forms, Mr Cooper said, he heard nothing from the compensating authority in response to suggest that the date was wrong. It was not until almost three years later that he received a letter from them suggesting that the date was wrong. In that letter, dated 7 May 1999, the writer, Mr James, said that he had discovered from a conversation with Glamorgan Engineering Consultancy that the relevant date was 26 January 1996, the date upon which the consultancy had issued a certificate of substantial completion and upon which the road was first opened to public traffic. Mr Cooper said that he thought that a claim that wrongly stated the relevant date was invalid, notwithstanding that there was no requirement for the relevant date to be specified in the claim.
[27] Mr Cooper said that he had meetings with Mr James on 19 September 2000, 16 August 2001 and 23 August 2001, and it was not until this last meeting that Mr James suggested that there might have been different opening dates for different sections of the road. On 5 October 2001, the compensating authority wrote giving the date of the opening of section C-D to public traffic as 6 September 1994. On 17 and 18 February 2003, he said, he and Mr James carried out joint inspections of the properties affected by the central section of the road, and, on 27 February 2003, he met Mr James again and negotiated settlements in respect of 42 claims. Such claims would, Mr Cooper said, have been statute-barred when they were settled. Mr James was not concerned about the effect of the different relevant dates in relation to the Maes Watford premises. His concern was simply with the three-year adoption period, which had originally been raised in the letter of 5 October 2001.
[28] Mr Cooper said that, subject to reviewing his files, he thought that most of the claims that concerned noise, vibration, lighting and fumes, related to section C-D, although he thought that there were some who were affected by both section C-D and section B-C.
Conclusions
Issue (i): What is the highway?
[29] The compensating authority contended that the highway for the purposes of the statutory provisions was section C-D, the part of the distributor road that was the source of the noise and other physical effects of which the Maes Watford residents complained. That section had been opened to public traffic on 30 September 1994, or, at the latest, on 8 November 1995. The claimants said that the entire distributor road was the highway for the purposes of the provisions. Mr Bates submitted that the evidence showed that section C-D had been constructed as part of a scheme, and he referred to Wilson (Personal Representatives of FW Wilson) v Liverpool City Council [1971] 1 WLR 302 and John T Bell & Sons Ltd v Newcastle upon Tyne City Council (1971) 220 EG 1771, (1971) 220 EG 1900 and (1972) 221 EG 39. He relied upon Davies v Mid Glamorgan County Council (1979) 38 P&CR 727 as showing that a scheme is not complete for the purposes of a Part I claim until all elements of it are complete. He submitted that, for compensation purposes, the entire road ought to be taken to be the scheme because the traffic on the bypass affected the claimants more than the traffic using section C-D before section B-C was opened.
[30] I do not think that the concept of the scheme as developed in cases on compensation for the compulsory acquisition of land can have any direct relevance to the quite different set of statutory provisions that apply in the present case, although, in some circumstances, it might provide a useful analogy. In Davies, this tribunal (Mr JH Emlyn Jones FRICS) relied upon the concept of the scheme in holding that various works at Cardiff (Rhoose) Airport should be treated together for the purposes of claims under Part I. I do not find that case to be of assistance in the quite different circumstances of the present case. The works consisted of runway and apron alterations, and they were carried out in three phases over a four-year period. All consisted of works to, or associated with, the existing runway. The tribunal held that the alterations were completed when the third of the phases was finished, since the works for the purposes of the claim consisted of the totality of the works. It rejected the compensating authority’s contention that each phase constituted separate works. In my view, it was plainly right to do so. I do not, however, think that the same considerations necessarily apply to a highway that is completed in stages.
[31] It is, of course, the case with any road that, although a houseowner will be affected by traffic only on a particular limited section of highway, the volume of traffic, and, hence, the degree of disturbance, will depend upon the nature of the highway system as a whole. As parts of the system are altered, the volume of traffic might change. Part I of the 1973 Act, as it applies to highways, gives a right to compensation for depreciation caused by noise, etc, arising from the use of a highway, and this must mean, it seems to me, the use of that part of the highway network from which the noise, etc, arises. “Highway”, as defined, includes part of a highway, and thus the question to be asked when determining the relevant date is when that part of the highway from which the noise arises was first open to public traffic. In relation to those of the present claims that are founded upon the use of section C-D and the noise, etc, arising from it, it is that section and not the road as a whole that constitutes the highway for the purposes of these provisions.
[32] That conclusion by itself does not mean that compensation arising out of the claims could not reflect depreciation suffered as a result of the use of the western distributor road as a whole, as Mr Bates suggested. On the contrary, it seems clear that, if the claims can be validly made, the compensation would reflect such depreciation. This is because, under section 4(2), in assessing depreciation owing to physical factors caused by the use of the highway, account is to be taken of the use of the highway as it exists on the first claim day and of any intensification that might then be reasonably expected of the use of the highway in the state in which it was on that date. I conclude below that the relevant date for section C-D was 8 November 1995. By the first claim day for that section, a year after the relevant date (see section 3(2)), that is, 8 November 1996, the entire distributor road was open, and the use of section C-D for the purpose of assessing depreciation would be its use as at that date as part of the distributor road. Moreover, any increase in traffic that could reasonably be expected at that date would also fall to be taken into account. I would add that even if, as the compensating authority contended, the relevant date for section C-D had been 30 September 1994, with the first claim day therefore being 30 September 1995, before section B-C was open, depreciation would still have fallen to be assessed, taking account of the future use of the distributor road, since, on the first claim day, such use could reasonably have been expected. It is thus not necessary to treat the entire distributor road as the highway for the purposes of these claims in order to ensure, in relation to any valid claim, that compensation reflects the use, or the use reasonably to be expected, of the distributor road as completed.
[33] Although there is no clear evidence on this, it appears possible that some of the claimants might be affected to some extent by the use of section B-C, as well as by the use of section C-D. If so, they would have separate claims in relation to the two sections. There would be obvious attractions in treating, as the highway for the purpose of such claims, the entire distributor road, rather than the separate sections. However, as I conclude below, no claim could be brought in relation to section C-D alone or were the whole road to be treated as the highway, since section 19(3) excludes such claims where the highway is not adopted within three years of opening. The consequence of treating the entire road as the highway would thus be to deprive of compensation those who were affected by traffic on section B-C. |page:162|
[34] Mr Bates contended that the compensating authority were estopped from asserting that the highway was other than the whole of the distributor road. I will deal with this contention in section (iv) below.
Issue (ii): When was the highway first open to public traffic?
[35] I take section C-D first. The compensating authority contended, on the basis of information supplied by Cofton and given in Mr King’s evidence, that section C-D was open to public traffic no later than 30 September 1994. They do not themselves have any record of the date of opening, and they are thus in breach of section 15(1)(a) of the 1973 Act, which requires them to keep such a record and furnish it on demand. I do not accept that the information supplied by Cofton, and given by Mr King, shows that section C-D was open to public traffic on 30 September 1994. The evidence is that the road was completed to base-coat tarmac on 2 September 1994 and was open for the viewing of show homes on 30 September 1994. It was thus open for a limited purpose only, and although at the base-coat stage it was still a road in the course of construction. It was not a road that was open to the public for all purposes. The agreement with the highway authority, however, made specific provision for its becoming a highway. That part of the agreement dealing with this section of the road provided as follows:
9.B Part 2 Certificate:
ON completion of the Part 2 Works to the satisfaction of the Proper Officer in all respects the Proper Officer shall issue his Part 2 Certificate to the Developer and from the date thereof:
…
(b) the Road or Roads shall become a highway or highways and remain forever open for use by the public at large…
The letter of 8 November 1995, according to the evidence of Mr Brown, which I accept, constituted the Part 2 certificate for section C-D, and I find as a fact that it was then, and not before, that it became open to public traffic.
[36] I have concluded that the highway for the purposes of the present claims is section C-D and not the entire distributor road, and that it was first open to public traffic on 8 November 1995. The claimants’ contention, however, was that the highway was the distributor road as a whole, and much of the evidence was directed towards the question of when section B-C, the last section to be completed, was open to public traffic. For completeness, therefore, I will state my finding on this question of fact. The question is not an easy one. The compensating authority have failed to comply with their statutory duty to maintain records of opening, and the claimants’ agent failed to establish the date by making a demand for that purpose under the statute before serving claim notices. The witnesses called to give evidence were seeking to recall a changing state of affairs at a period of time that is now eight years ago, and for which no contemporaneous notes of observation exist. There is a conflict of recollection between them. Having heard the witnesses, I think it is more likely than not that the road was open to public traffic on 26 January 1996, and that there was an official opening on 29 March 1996, which, as a Friday, was the last working day before local government reorganisation on Monday 1 April 1996. The evidence for 26 January 1996 is that the certificate of substantial completion was issued on that date. Glamorgan Engineering Consultants’ schedule, “Monitoring of construction: as at 4th March 1998”, records against “Caerphilly Western” as the date of the completion certificate “26/01/96”, and an e-mail from the Walters Group, the contractor, states that its records show for the contract: commencement date, 27/08/95, substantial completion date, 26/01/96, and date of maintenance certificate, 26/01/97. Mr Bates said that this did not amount to evidence of the road being open on that date, but merely implied it. The implication is, however, in the circumstances, sufficiently compelling, in my judgment. Mr Hart agreed that since, contrary to the recollection he had earlier expressed that, on 15 March 1996, the road did not have its wearing course, it appeared that it was complete on 26 January 1996, this suggested that it was open to public traffic from that date. I think it improbable that the road was completed but was kept closed to public traffic for more than two months. I accept Mr Lennon’s evidence that he had been told in January 1996, by someone in the engineers department at the county council that the road was already open, but that it would be officially opened on 1 April 1996, and that he had relayed this information to Mr Ricketts. I accept the evidence of Mr King that he drove along the road, as did other traffic, on a number of occasions on his visits to the development area prior to 1 April 1996, and although I accept that there was a barrier on section B-C, I think that the recollection of the claimants’ witnesses that this remained in place after 26 January 1996 is unsound.
Issue (iii): Limitation
[37] The case for the compensating authority is that the claims are statute-barred. Under section 19(2A) of the 1973 Act, for the purposes of the Limitation Act 1980, a person’s right to recover compensation under Part I is deemed to have accrued on the first claim day. As I have noted, the first claim day is a year after the relevant date, and the relevant date is the date upon which the highway was first open to public traffic. The right to make reference to the Lands Tribunal in relation to a claim under Part I becomes statute-barred six years after the first claim day: see Bateman v Lancashire County Council [1999] 2 EGLR 203, applying Hillingdon London Borough Council v ARC Ltd [1999] Ch 139*. Mr Bates did not contend that Bateman had been wrongly decided in this respect, but he said that he reserved the right to argue the point elsewhere.
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* Editor’s note: Also reported at [1998] 3 EGLR 18; [1998] 39 EG 202
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[38] The notices of reference relating to these claims were given on 28 March 2003. The highway (section C-D see above) was first open to public traffic on 8 November 1995, and the first claim day, therefore, was, in each case, 8 November 1996, more than six years before notices of reference were given. Even if the claimants were right in saying that the highway constitutes the whole of the distributor road, I have found that this became open to public traffic on 26 January 1996, so that the first claim day would be 26 January 1997, again, more than six years before the notices of reference. Subject to the claimants’ contentions on estoppel, therefore, the claims in this tribunal are statute-barred.
Issue (iv): Estoppel
[39] The claimants contend that the compensating authority are estopped from contending that the road was first open to public traffic prior to 1 April 1996 and thus from taking the limitation point. They also contend that the compensating authority are estopped from asserting that the highway, for the purposes of the claims, is section C-D rather than the entire distributor road. My conclusion is that there is no estoppel in either respect.
[40] In submitting that the compensating authority are estopped from contending that the road was first open to public traffic prior to 1 April 1996, Mr Bates relied upon the telephone conversation in January 1996 between Mr Ricketts and Mr Lennon. It was, he said, on the basis of this that claim forms were sent to the authority on 27 March 1997 and the compensating authority accepted them as valid. I have said that I accept Mr Lennon’s recollection of the conversation, in which, on the basis of information he had been given by the engineering section, he drew the distinction between the opening of the road and its official opening. I do not accept that the conversation gave rise to the understanding upon which Mr Bates based his submission. In any event, after Mr Ricketts had been given the prospective date of the official opening, neither he nor Mr Cooper had checked later to ascertain when in fact the road had been opened. Nor had they asked for a section 15 certificate giving the authority’s formal statement of the date. It is not necessary under the 1973 Act to submit a claim form on the first claim day. It can be submitted from then onwards. Nor is there any requirement to state the relevant date in making a claim. Nevertheless, since interest is payable, under section 18 of the 1973 Act, from the date of service of the claim or, if that is before the first claim day, from the first claim day, it is obviously advisable to serve a claim on or before the first claim day. Mr Ricketts and Mr Cooper understandably attached importance to |page:163| submitting claims on or before the first claim day, and it seems to me surprising that they did not seek to establish formally the date upon which the road was first open to public traffic. My conclusion is that they chanced their arm on 1 April 1996, hoping that the compensating authority would not question it and enabling them to make claims on behalf of those who had bought their houses before that date.
[41] Mr Bates said in the alternative that a convention had arisen between the parties that the relevant date was 1 April 1996. It appears from Mr James’s evidence that those in the compensating authority dealing with the claims did not focus on the question of the relevant date or the fact of different opening dates for different sections for some long time. A letter from Mr James dated 7 May 1999 said: “I have discovered that the relevant date for this road scheme is the 26 January 1996 and not the 1 April 1996.” That tends to suggest that, up until then, the compensating authority had been treating 1 April 1996 as the relevant date. But given the knowledge that Mr Ricketts and Mr Cooper had about the different sections of the road and the doubt about the opening date, I do not think that there was the convention that Mr Bates suggests. In any event, it was clear from May 1999 that the compensating authority were saying that 1 April 1996 was not the relevant date.
[42] Mr Bates argued that by adopting the convention that the relevant date was 1 April 1996, the compensating authority deprived the claimants of at least two months’ interest, since, if it had been accepted that the relevant date was 26 January 1996 (or some earlier date), claim forms would have been lodged earlier. In the circumstances, he said, it would be unfair or unjust to allow the compensating authority to go back on their acceptance of 1 April 1996. Mr Denyer-Green’s submission, which I accept, was that, if there were an estoppel, it could operate only to prevent the prejudice that the claimants would otherwise suffer were the compensating authority allowed to resile from the convention. There could be an argument of estoppel against a denial of interest on compensation or in relation to changes of ownership during the affected period. But there was no reason why, for other purposes, the compensating authority could not have resiled from the convention from May 1999. It was clear to the claimants from then on that the compensating authority were contending that 26 January 1996 was the date, so that the claimants had plenty of time to give notices of reference before the end of the limitation period.
[43] The claimants, as I have said, also contended that the compensating authority are estopped from asserting that the highway, for the purposes of the claims, is section C-D rather than the entire distributor road. The basis of this contention was that: (i) the conversation between Mr Ricketts and Mr Lennon in January 1996 had been concerned with the whole of the road and not particular sections of it; (ii) the claims had been submitted in relation to the western distributor road; (iii) correspondence referred to the road and not sections of it; and (iv) Mr Cooper had not been told until 5 October 2001 that the road had been opened in sections. In the circumstances, said Mr Bates, at all times between January 1996 and October 2001, the parties had been operating under a convention that the claims had been made in respect of the whole road and not sections of it. This affected the service of the claims and the date of service, and it would be unfair and unjust to allow the compensating authority to contend that the claims should be treated as claims relating to a particular section of the road.
[44] In evidence, Mr Cooper said that, in January 1996, he had gone to investigate properties that might produce clients, and he had seen, at point C, a timber barrier. He visited again in March, drove from C to D and again saw the timber barrier. Although I have found that his recollection about what he said he saw in March is unsound, his evidence shows that he was aware that the road had been opened in sections. The relevance of this ought to have been clear to him as a professional offering expert advice and services in relation to Part I claims. The council’s reliance upon this sequential opening, which was stated in the letter of 5 October 2001, was, therefore, not the first time that he had become aware of the sequential opening, and it was clear from that date that they were indeed saying that there were different relevant dates for the different sections. I conclude that the authority are not estopped from asserting that the highway for the purposes of the claims is section C-D.
Issue (v): Exclusion in section 19(3)
[45] Section 19(3) of the 1973 Act provides that no claim may be made if the relevant date falls at a time at which the highway was not maintainable at the public expense and the highway does not become so maintainable within three years of that date. Section C-D (and section A-B also) did not become maintainable at the public expense until 7 September 2000. The claimants accepted that if, as I have concluded, the highway for the purposes of these claims is section C-D, the claims are excluded by this provision. On the face of it, the provision would similarly exclude claims if the highway were the distributor road as a whole. Just as “the date on which the highway was first open to public traffic” (see sections 15(1)(a), 6(9)(a), 19(3)(a)) must mean the date upon which the whole of what constitutes the highway for the purposes of the provisions was so open, so “a time when the highway was not maintainable at the public expense” in section 19(3) must mean a time when the whole of such a highway was not so maintainable. Mr Bates, however, argued that if the highway were the entire distributor road, since part of it (section B-C) had been adopted within the three-year period, the words of the exclusion should, pursuant to section 3 of the Human Rights Act 1998 (HRA), be so construed as not to exclude the claims. He based his argument upon Article 8 of the ECHR. Article 8(1) provides that “Everyone has the right to respect for… his home”. Article 8(2) provides:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the economic wellbeing of the country.
Mr Bates referred to R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622 and to the decision of the Court of Appeal in Marcic v Thames Water Utilities Ltd (No 1) [2002] EWCA Civ 64; [2002] QB 929.
[46] Mr Denyer-Green submitted that the duty on the tribunal under section 3 of the HRA cannot be applied retrospectively. The highway was constructed and open to public traffic before the HRA came into force. I accept that contention. Accordingly, it is not appropriate to adopt the construction for which Mr Bates contended, which would require giving to the words of the exclusion a meaning that they do not naturally bear. In the circumstances, there is no need for me to consider the other arguments addressed to me. I would add, however, that I see considerable force in Mr Denyer-Green’s submission that, in making specific provision for roads that are constructed and initially maintained privately, the legislation is seeking to balance the interests of claimants and those of the wider community; and, in enabling parts of highways to be treated separately for the purposes of the provisions, it permits the distinction to be drawn between those parts of a road that have been adopted and those that have not, and, in consequence, there is no need to adopt the construction for which Mr Bates contended.
Decision
[47] The above conclusions mean that the claimants do not have valid claims and that the claims must therefore be dismissed. The parties are now invited to make submissions on costs, and a letter on this accompanies this decision. The decision will not take effect until the issue of costs has been dealt with.Addendum
[48] In submissions made following the decision, the claimants asked for clarification of the position of the claimant, Ms Williams. Ms Williams sold her house on 22 September 1998, and it is suggested, in the light of para 42 of the decision, that she was prejudiced by the change in the compensating authority’s position as set out in their letter of 7 May 1999 and, therefore, impliedly, that she can rely upon estoppel to make good her claim. The answer to this is that she cannot rely upon estoppel because there was no convention that 1 April 1996 was the relevant date: see para 41. Her claim would in any event fail because of the effect of section 19(3) of the 1973 Act (see para 45) since the |page:164| highway for the purposes of the claims in section C-D (see para 36) and the compensating authority are not estopped from contending that it is section C-D: see para 44.
[49] The compensating authority ask for their costs. The claimants contend not only that the authority should not have their costs but that the authority should pay the claimants’ costs. They say that the costs arose solely out of the failure of the compensating authority to carry out their statutory duty to keep a record of the relevant date as required by section 15 of the 1973 Act. Even if the claimants’ surveyor had made a demand under the section, they say, the compensating authority would not have been in a position to furnish a statement in writing, and it was therefore necessary that evidence should be called and that voluminous documentation should be considered in order that a difficult issue of fact might be determined.
[50] I do not consider that there is any sufficient reason to deprive the compensating authority, as the successful party, of any part of their costs. In particular, it is not right, in my view, to say that the costs arose solely out of the failure of the compensating authority to keep a record of the relevant date under section 15 of the 1973 Act. The claimants failed in their contention that the highway was the whole of the distributor road, rather than section C-D, and on the application of section 19(3). These failures were fatal to their claims. The evidence, both of the witnesses and documentary, was directed at the issue of when section B-C had first been open to public traffic, an issue that was not determinative of the compensating authority’s success, although they succeeded on it. Although it may be that if the necessary record had been kept under section 15, this issue would not have arisen for decision, it is, in my view, equally the case that had the claimants’ professional advisers requested a statement in writing of the date of opening prior to serving the claims, it is likely that the date of 26 January 1996 would have been established. They did not seek to establish the date in this way, and the conclusion that I expressed at the end of para 40 was that they had chanced their arm on 1 April 1996 being the date.
[51] The claimants must accordingly pay the compensating authority’s costs, such costs, if not agreed, to be subject to detailed assessment by the Registrar on the standard basis.
Claims dismissed.
