Compensation for depreciation — Part I of Land Compensation Act 1973 — New highway — Section 19(3) three-year time limit — Highway not adopted within three years — Claim for compensation excluded under Act — Section 3 of Human Rights Act 1998 — European Convention on Human Rights — Articles 6 and 8 — Article 1 of First Protocol — Whether section 19(3) of 1973 Act requiring interpretation not excluding compensation claim — Whether compensation excluded by section 19(3) — Whether highway constructed on behalf of highway authority
By an agreement made in November 1997, pursuant to section 106 of the Town and Country Planning Act 1990 and other provisions, a consortium of developers agreed with the compensating authority, as the highway authority, to construct and complete the Calne northern distributor road (NDR) in connection with a substantial development scheme. The affected landowners were also parties to the agreement. The agreement provided for the adoption of the NDR as a highway maintainable at public expense. In 1999, the developers, but not the landowners, made a further agreement with the district council and the highway authority for the accelerated construction of the NDR (the acceleration agreement). The NDR was first opened to public traffic on 20 January 2000. The claimants made a claim for compensation under Part I of the Land Compensation Act 1973 in respect of depreciation in the value of their property caused by noise arising from the NDR. The compensating authority resisted the claim on the ground that section 19(3) of the 1973 Act applied.
Under section 19(3), no claim for compensation for depreciation under Part I can be made where a highway is first opened to public traffic at a time when it is not maintainable at public expense and does not become so maintainable within three years of that date. Because of difficulties in relation to certain drainage works, the NDR had not been adopted as a highway maintainable at public expense within the three-year period following the date of its opening to public traffic. The claimants contended that section 19(3) should be interpreted in accordance with section 3 of the Human Rights Act 1998. Under section 3, a statute must be read and given effect to in a way that is compatible with the European Convention on Human Rights. The relevant Convention rights were those in Article 1 of the First Protocol (protection of private property), Article 6 (right to a fair trial) and Article 8 (respect for home). Section 19(3) of the 1998 Act should therefore be interpreted as containing the additional qualification that a highway authority had not agreed that a highway would become a highway maintainable at public expense. An additional issue raised by the tribunal was whether, by reason of the acceleration agreement, the NDR had been constructed by the highway authority, and was therefore a highway maintainable at public expense from the date upon which it first opened to public traffic.
Decision: The claim was dismissed. The possibility of a breach of Convention rights does not place any burden on the highway authority to establish the reasonableness or justification for the compensation provisions of the 1973 Act. Those provisions are not part of the rights required to be safeguarded by Article 1 of the First Protocol and Article 8. The statutory provisions that permit the interferences (noise nuisance) do not therefore include section 19(3) of the 1973 Act. In respect of Article 6, section 19(3) does not create a procedural bar to an established right; it defines and thereby limits the extent of the rights created by parliament in 1973; Article 6 is not engaged. The effect of the acceleration agreement was that although the NDR was expressed as having been constructed by the highway authority, the authority were actually constructing it for the benefit of the developers. The NDR had therefore been constructed by the highway authority under section 24(2) of the Highways Act 1980, and was therefore not a highway constructed by a highway authority within the meaning of section 36(2)(a) of the 1980 Act; it was not maintainable at public expense from the date of its opening.
The following cases are referred to in this report.
Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411; [2005] 1 P&CR 18; [2004] 2 EGLR 132; [2004] HLR 46Hatton
v United Kingdom 36022/97 (2003) 37 EHRR 28
Marcic v Thames Water Utilities Ltd; sub nom Thames Water Utilities Ltd v Marcic [2003] UKHL 66; [2004] 2 AC 42; [2003] 3 WLR 1603; [2004] 1 All ER 135
Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163; [2003] 2 WLR 435; [2003] 1 All ER 689
Wilson v First County Trust Ltd (No 2); sub nom Wilson v Secretary of State for Trade and Industry [2003] UKHL 40; [2004] 1 AC 816; [2003] 3 WLR 568; [2003] 4 All ER 97
This was the hearing of a preliminary issue in a reference of a claim by the claimants, Amelia O’Connor and Paul O’Connor, for compensation under Part I of the Land Compensation Act 1973 against the compensating authority, Wiltshire County Council.
Robert Weir (instructed by Hugh James, of Merthy Tydfil) appeared for the claimants; Timothy Straker QC and Paul Stinchcombe (instructed by the legal department of Wiltshire County Council) represented the compensating authority.
Giving his decision,
Decision
[1] This was the hearing of a preliminary issue to determine whether the claimants had a valid claim under Part 1 of the Land Compensation Act 1973 (the 1973 Act), having regard to the proper interpretation of section 19(3) of that Act.
[2] On 20 January 2000, the Calne northern distributor road (NDR), a bypass road round Calne, in Wiltshire, was opened to traffic. The claimants own and live in a dwelling known as 55 Braemore Road, in Calne, and they claim that the value of their interest in that property has been depreciated by noise caused by the use of this highway. On |page:82| 21 January 2001, they accordingly made a claim against Wiltshire County Council, as highway authority, for compensation under Part 1 of the 1973 Act. The council, however, claimed that the road was not, at the date upon which it opened, a highway maintainable at the public expense, as defined in section 329 of the Highways Act 1980 (the 1980 Act), and did not become so within three years of that date. Accordingly, the council relied upon the provisions of section 19(3) of the 1973 Act, and denied the claimants’ entitlement to any compensation under that Act.
[3] By an agreement, made, among other powers, under section 106 of the Town and Country Planning Act 1990, and dated 26 November 1997, a consortium of developers (to whom I shall refer as “the developers”) agreed to complete the NDR in step with the residential development of a planned area for the extension of Calne. They were required to complete the highway works, which were the NDR, and to remedy any defects to the satisfaction of the council within 12 months of the opening of the highway. By para 14 of the fifth schedule to the section 106 agreement, the highway authority were bound, upon being satisfied as to a number of matters there set out, to issue the final certificate of completion. By para 15, it was provided that:
The County Council shall from the date of the Final Certificate of Completion… adopt the [NDR] as part of the highway maintainable at the public expense.
[4] Section 38(3) of the 1980 Act provides that:
A local highway authority may agree with any person to undertake the maintenance of a way –
…
(b) which is to be constructed by that person… and which he proposes to dedicate as a highway
and where an agreement is made under this subsection the way to which the agreement relates shall on such date as may be specified in the agreement, become… a highway maintainable at the public expense.
(Emphasis added.)
The developers, however, failed to procure the adoption of the drainage works for the highway by the appropriate authority, in accordance with para 14.7 of the schedule to the agreement, because, apparently, of some resistance by one of the landowners. Accordingly, the conditions for the issue of the final certificate remain unsatisfied and it has not been issued. Accordingly, the date specified in the agreement for the adoption of the highway has not been reached, although it was duly dedicated upon being opened for traffic. The developers have, accordingly, remained responsible under the terms of the section 106 agreement to continue to maintain the highway, and section 38(3) of the 1980 Act has not operated to make it a highway maintainable at the public expense.
[5] The claimants have made this reference to the Lands Tribunal in order to contend that the provisions of section 19(3) of the 1973 Act should, none the less, be interpreted in accordance with section 3 of the Human Rights Act 1998 (the HRA) so as not to exclude their claim. The relevant words of the subsection are:
no claim shall be made if the relevant date [which means the date on which the highway was first open to the public] falls at a time when the highway was not so maintainable [that is at the public expense] and the highway does not become so maintainable within three years of that date.
The claimants’ statement of case, dated 4 May 2005, claimed that it should be read as if certain additional words had been added to the subsection, which not only would have made it irrelevant whether the highway ever became or was even agreed to become maintainable but none the less also would not have entitled the claimants to compensation in their particular circumstances. The statement of case was, however, amended, without objection, on the second day of the hearing to claim that:
In order to avoid any incompatibility between the claimants’ rights and section 19(3) LCA, this section should be read and given effect so that it reads:
“and no claim shall be made if the relevant date falls at a time when the highway was not maintainable and when the highway authority had not agreed that the highway would become so maintainable and the highway does not become so maintainable within three years of that date.”
[6] The compensating authority do not dispute that a provision in such form would be fairer than one that leaves the entitlement to compensation for depreciation in the value of one’s home by noise from a newly opened highway to such chance as has operated in this case. The reading contended for, however, depends upon section 3 of the HRA being satisfied. This requires:
So far as it is possible to do so, [the Act] must be read and given effect in a way which is compatible with the Convention rights.
It will be convenient first to consider the Convention rights with which this unfairness is said to be incompatible and, second, on the assumption of such incompatibility, whether the reading contended for is “possible” within the meaning of the section.
[7] I do not think that it is material to those questions whether the section, read literally, could be abused by a highway authority wishing to avoid compensation by agreeing with a developer a date for adoption under section 38(3) of the Highways Act 1990 more than three years after the opening of the highway. I am inclined to accept Mr Timothy Straker’s submission on behalf of the compensating authority that this might well involve conduct undertaken for an improper or ulterior motive, which would be capable of judicial review. It might otherwise be treated as maladministration if complaint were made to the local government ombudsman. In the present case, however, no suggestion is made that the council have acted otherwise than properly and in good faith, and I do not, therefore, propose to consider such questions.
[8] Mr Robert Weir, for the claimants, relied upon three Convention rights. It is convenient to consider those arising under Article 1 of the First Protocol (to which I will refer merely as Article 1) and Article 8 together, and before the rights provided by Article 6. Both these rights are what are called in the jargon “qualified rights”. Article 1 provides under the heading:
Protection of property
Every natural… person is entitled to the peaceful enjoyment of his possessions. No person shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
Article 8 provides:
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 interests of national security, public safety or the economic well-being of the country,…
[9] Mr Weir’s submissions on these articles can, I think, be expressed in the following propositions:
(1) The Articles are engaged because:
(i) the value of the claimants’ property has been reduced and thus they have been deprived of the peaceful enjoyment of their possessions (Article 1);
(ii) the claimants’ enjoyment of their home has been adversely affected by the noise associated with the NDR (Article 8).
(2) The highway authority therefore have the burden of establishing that the statutory provision (presumably that permits these interferences) pursues a legitimate aim and there is a reasonable relationship between the means employed and the aim sought.
(3) The aim of the “three-year clause” is to limit compensation to those cases in which there is an expectation that the highway authority will subsequently adopt the highway.
(4) The clause is disproportionate because highway authorities that have agreed before the opening of the highway to adopt such highway can escape liability to pay compensation under the 1973 Act.
[10] Although the language of “engagement” is part of the standard jargon of this jurisprudence (see, for example, per Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816 in [39], at p836), I think that its adoption in this |page:83| case has proved misleading. The issue is whether what Mr Weir called the three-year clause is incompatible with the Convention rights relied upon, unless read as he proposed. He set out those rights by reference to the effect of the noise from the highway upon the claimants’ property or home. Only if the permitting of the use of the highway without compensation involves a breach of those rights can a statutory provision for compensation that does not benefit the claimants be incompatible with their enjoyment of these rights. It is accepted that, in the absence of statutory compensation, the claimants are left uncompensated because there can be no effective claim in nuisance against the developers.
[11] Mr Weir’s submission, however, in my judgment, misapplies the considerations that led the House of Lords in Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557*, to reinterpret para 2(2) of Schedule 1 to the Rent Act 1977 so as to grant a right to succeed to the tenancy of the home granted to the claimant’s deceased partner to the survivor of a homosexual couple in the same way as would be enjoyed by the survivor of a heterosexual couple. They accepted that the absence of such right would not of itself be incompatible with Article 8, which, as Lord Nicholls said in [6], “does not require the state to provide security of tenure for members of a deceased tenant’s family”. The incompatibility upon which the majority of the House based its decision was with Article 14, which provides for:
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground…
Accordingly, it being agreed, as Lord Nicholls set out in [12], that the issue concerned “a provision that falls within the ‘ambit’ of the right to respect for a person’s home guaranteed by Article 8”, it was also “common ground that Article 14 is engaged in the present case”. Although the provisions of the three-year clause may work unfairly, Mr Weir has been unable to rely upon any breach of Article 14 in such interference with the claimants’ rights under Articles 1 and 8 as he has identified.
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* Editor’s note: Also reported at [2004] 2 EGLR 132
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[12] I accept, on the authority of the decision of the European Court of Human Rights in Hatton v United Kingdom 36022/97 (2003) 37 EHRR 28, in para 96, that:
There is no explicit right in the Convention to a clean and quiet environment but, where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Art 8.
In that case, the claimants failed because the court was not satisfied that the noise pollution arising from the scheme to regulate night flying from Heathrow Airport imposed by the government caused such serious interference with the enjoyment of their homes as to involve a violation of their Article 8 rights. If the council have, by permitting the opening of the NDR, acted in a way that is incompatible with the Convention rights relied upon, section 7 of the HRA gives to the victims of such unlawful act a right to begin proceedings. The qualified nature of the Article 8 rights would, however, as Mr Weir acknowledged, make any such proceedings hopeless, except, possibly, in the most extreme case. That does not, however, mean that the limit of provision as to compensation becomes incompatible with the rights that, for these reasons, are not relied upon as having been breached.
[13] I accept that noise pollution could so affect a property as also to involve a breach of the owner’s rights under Article 1. That was accepted in relation to flooding by sewage in Marcic v Thames Water Utilities Ltd [2003] UKHL 66; [2004] 2 AC 42: see [37]. In so far as this noise pollution arises from the acts of the highway authority, that involves the authority in having the burden of justifying such pollution. If it were such that it could be justified only on the basis that the victim was compensated, the availability of compensation would determine whether the authority had acted lawfully. But Mr Weir accepted that he could not submit that interference with a person’s peaceful enjoyment of his property by highway works involved a breach of his rights under Article 1 unless he was compensated. In my judgment, therefore, any claim under section 7 of the HRA would again fail, as did that of Mr Marcic, but without consideration of the fairness of any compensation scheme.
[14] This is made clear, in my judgment, by Mr Weir’s acceptance of the limits of the scope of Article 1. Article 1 is concerned with the enjoyment of “possessions”. Mr Weir expressly related the right so granted to the claimants’ property at 55 Braemore Road, rather than to any inchoate right to compensation arising out of the 1973 Act. That is because he accepted the view of the authors of Clayton and Tomlinson:The Law of Human Rights, in para 18.63:
There is no general rule that interference with the substance of ownership or hindering the enjoyment of property requires the payment of compensation.
It seems to me, however, that once that is conceded, the whole edifice of his submissions falls. The possibility of a breach of the Convention rights, which is what Mr Weir means by saying that they are “engaged”, does not place any burden upon the highway authority to establish the reasonableness or justification for the compensation provisions of the 1973 Act. Those provisions are not part of the rights required to be safeguarded by these Articles of the Convention, so there can be no question of their being incompatible with the Convention rights secured by Articles 1 and 8. The statutory provisions to which Mr Weir’s second proposition, as set out in [9] above, refers, do not therefore include section 19(3) of the 1973 Act.
[15] Although, at first reading, Article 6 is still further removed from incompatibility with section 19(3), Mr Weir has persuaded me that there is, in fact, a more substantial case for its consideration. Article 6 is, by its heading, concerned with the “Right to a fair trial”. Its scope is, however, wider. The first sentence provides:
In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Thus, if the claimants are entitled to the civil right of compensation for depreciation in the value of their interest in 55 Braemore Road resulting from noise caused by the use of the highway, they are entitled to a hearing of their claim, rather than having it barred by the three-year clause.
[16] Mr Weir relied upon the speech of Lord Hoffmann in Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163, at p1178, where he said:
If the purpose of [the challenged legislation] had been to give the [public authority] a discretionary power to swoop down and prevent people with claims… from bringing them before the courts, I would agree [that this is incompatible with Article 6].
He emphasised that one must look at the substance, not the form of the obstacle to access to the courts:
What matters is whether the effect is to give the executive a power to make decisions about people’s rights which under the rule of law should be made by the judicial branch of government.
[17] Mr Weir put the case that this was the effect of section 19(3) succinctly in his skeleton argument, as follows:
In this case the Land Compensation Act gave the claimants a right to compensation. His right accrued on the first claim day (see section 19(2A)). Any damages [he should have said depreciation] are assessed by reference to the value of their property on that day. The failure of Wiltshire County Council to adopt the highway by 20 January 2003 was to impose a procedural bar on that established right.
If that had accurately set out the right that was in fact granted by section 1 of the 1973 Act, I would agree with him.
[18] Section 1(1) does indeed say that:
Where the value of an interest in land is depreciated by physical factors caused by the use of public works… compensation shall, subject to the provisions of this Part of this Act, be payable to the person making the claim…. |page:84|
Subsection (3) defines “public works” to include “any highway”, and section 3(2) provides that no claim is to be made before the “first claim day”, which, in the case of a highway, is a year and a day after the highway opens for traffic: see section 1(9)(a). But it is wrong to say in the case of the NDR that “the right accrued” on that day. “Highway” is defined by section 19(1) to mean “a highway maintainable at the public expense as defined in section 329(1) of the Highways Act 1980”. Thus, the NDR was not, in accordance with the section 106 agreement, at the date of opening as a highway a “highway” within the meaning of section 1(3) for the purpose of being “public works” for whose use compensation is payable. Accordingly, the three-year clause is not a bar to a claim that accrued on the first claim day, but, although expressed negatively, in fact an extension of the right to make a claim if the highway becomes maintainable within three years of opening.
[19] In my judgment, therefore, section 19(3) does not create a procedural bar to an established right, but section 19(1) defines, and thereby limits, the extent of the right created by parliament in 1973. Accordingly, following the distinction made in Matthews, Article 6 is not engaged.
[20] The hypothetical question as to whether, had I found section 19(3) non-compliant with Convention rights, section 3 of the HRA requires it to be read as Mr Weir proposed in the amended statement of case, is not easily answered, because such conclusion as to non-compliance arises only if the subsection already means something different from what I hold to be its true meaning. If, however, section 19(3) was part of the definition of the right that accrues on the first claim day, it would itself be a proviso to the definition of “highway” in section 19(1), which would therefore, in effect, read:
“Highway” means a highway maintainable at the public expense or, if not so maintainable at the relevant date, becomes so maintainable within three years of that date.
If that had been the provision, to read “becomes” to include “has been agreed to become” would seem to me to be within the scope of an interpretative provision as explained by the majority of the House of Lords in Ghaidan. I add this, however, only out of respect to the full and helpful argument that I heard, on both sides, as to the meaning and effect of section 3 of the HRA.
[21] At the outset of the hearing, I drew it to the attention of the parties that, according to the evidence filed on behalf of the council, the NDR had not been constructed as originally intended under the section 106 agreement. After it had been executed on 26 November 1997, the various local authorities concluded that its timing, phased with the residential development of a new area for completion in 2007, would not provide sufficiently early relief to the Calne town centre. Accordingly, they entered into an “acceleration agreement” dated 20 May 1999. By this, the district and town councils advanced the funds for early construction of the NDR, subject to repayment by the developers at the date upon which they would otherwise have had to construct the road. For that purpose, it was agreed, at clause 4.1 of the accelerated agreement, that:
The Consortium will construct the NDR in accordance with the Accelerated Programme as agent for the County Council and for that purpose the Consortium will as principal enter into the Road Contract.
(Emphasis added.)
It appears from the definition of “road contract” at clause 5.1 that the developers had in fact already “concluded the Road Contract”, which, no doubt explains their being “the principal” under it. I suggested that this provision would appear to mean that the NDR was “a highway constructed by a highway authority” within the meaning of section 36(2)(a) of the 1980 Act and, accordingly, was a highway maintainable at public expense from the date upon which it was opened for traffic as a highway.
[22] By unopposed amendment of the statement of case, the claimants adopted this contention. Mr Straker made submissions on behalf of the compensating authority, upon this way of supporting the claim during the hearing as originally fixed, but, by agreement, he was given leave, if so advised, to add to his submissions at an adjourned hearing. He did so. He also produced evidence to explain that the reason why the council undertook to construct the road was that the district council wished to finance the acceleration of the programme and were advised that they could make a contribution towards the expenses under section 274 of the 1980 Act only if they were expenses “incurred or to be incurred by a highway authority”. For this reason, the acceleration agreement, as executed, provided for the district council to pay to the county council £3.5m as a contribution towards the cost of the roadworks pursuant to section 274: see clause 5.1. By clause 4.2, the developers agreed to construct the NDR (by reason of clause 4.1, as agents for the council) in accordance with the accelerated programme, and the council would be liable to meet the cost under the road contract. By clause 6.1, the developers were to pay to the council sums set out in a schedule of repayments over a period extending to 2008, amounting to almost £4.5m, which, by clause 6.2, the county council agreed to pay to the district council, although by what power the agreement does not make clear.
[23] Mr Straker relied upon the full definition of highways that are made maintainable at the public expense by section 36(2)(a):
a highway constructed by the highway authority otherwise than on behalf of some other person who is not a highway authority.
(Emphasis added.)
Clause 4.1 of the acceleration agreement has the effect, he accepted, that the NDR was a highway constructed by the highway authority, albeit through the agency of the developers. Mr Straker, however, submitted that it was so constructed on the developers’ behalf, and, of course, the developers are not a highway authority.
[24] The acceleration agreement recites the section 106 agreement, but, save that it advances the date by which the NDR is to be constructed, it does not vary its terms. It is by para 18 of the fifth schedule to the section 106 agreement that the developers agree to dedicate the NDR as a highway from the date of its opening for public use. Thus, the power that the highway authority exercised under section 38(3) of the 1980 Act to agree with the developers to maintain the highway from a date specified in the section 106 agreement remains, for that power is exercisable not only as set out in [4] above but also in respect of “a way… (b) which is to be constructed by [the other party to the agreement], or by a highway authority on his behalf, and which he proposes to dedicate as a highway” (emphasis added).
[25] Mr Straker accepted that it is a matter of fact whether the council, on a proper construction of the agreements, did indeed construct the NDR on the developers’ behalf. Mr Weir submitted that these words mean exclusively for the benefit of the person who is not a highway authority. I reject that submission because the highway authority would have no power to undertake the construction unless they were “satisfied that it will be of benefit to the public”: see section 278 of the 1980 Act, which appears to be the only source of power for the highway authority to make agreements as to the execution of highway works. The question, therefore, appears to me to resolve itself into an enquiry as to whether the council were exercising their power to construct a highway under section 24(2) of the 1980 Act or under section 278.
[26] The council could not have constructed the NDR under section 24 of the 1980 Act on land that they neither owned nor acquired except with the agreement of the owners. They did not obtain that agreement because the landowners, although parties to the section 106 agreement, were not joined in the acceleration agreement. The council relied upon the developers’ agreements to construct the road and to dedicate it. It is, I think, for this reason that the acceleration agreement was right to rely upon section 106 of the Town and Country Planning Act 1990 to bind the developers to carry out their obligations under the agreement: see clause 3.2. The obligation to make the payment of the sums set out in the repayment schedule were included within that clause, but the agreement continued:
3.3 Further and in consideration of the county council’s advancement of the NDR (access from which highway will be to the benefit of the [developers’] |page:85| Land) the [developers] agree to pay the sums set out… pursuant to sections 38 and 278 of the Highways Act 1980.
Thus, in my judgment, the council’s agreement to construct the NDR was an agreement to execute works on terms that the other party to the agreement (the developers) pays the costs on the basis that the works are executed for the developers’ benefit. The benefit is not only that which is recited but also that the construction of the road enables the developers to fulfil their obligations under the section 106 agreement to complete and dedicate the NDR.
[27] Mr Weir seeks to contradict that conclusion by saying that it is impossible for the principal to an agreement, as the council are, by virtue of clause 4.1, also to be the agent of their agent, which the developers are by virtue of that same clause. I do not need to consider whether there is, indeed, necessarily an impossibility either in law or in logic: certainly, it is not easy to think of circumstances in which such a circular arrangement of agency would arise. The phrase in section 36(2)(a) and section 38(3)(b), however, is “on his behalf”. I accept that an agent is always acting on behalf of its principal. It does not follow that one cannot act on behalf of another person in the sense of “for his benefit” without being his agent. Indeed, it seems to me that an agreement under section 278 is the only route by which a highway authority could construct a way “on behalf of” a person who proposes to dedicate the way on its completion, as provided for by section 38(3)(b), and there is no reason why the agreement that the highway authority made under section 278 should constitute the authority as agents of the person upon whose behalf they carried out the work.
[28] Accordingly, this alternative basis for the claimants to be eligible to claim compensation under Part 1 of the 1973 Act also fails, and the claimants’ claim must be dismissed.
[29] The parties are now invited to make submissions as to costs, and a letter relating to this accompanies this decision. This decision will take effect when, but not until, the question of costs has been determined.
Addendum on costs
[30] The parties have agreed that the claimants will pay the compensating authority’s costs of the preliminary issue to be assessed by the Registrar if not agreed and, by consent, I so order.
Claim dismissed.