When property is compulsorily purchased by, for example, a local authority acting in their capacity as a highway authority, the owner receives compensation. The owner is also entitled to statutory compensation under the Land Compensation Act 1973 in respect of the depreciation in value of an interest in land arising from public works. These provisions are, however, restrictive and a number of conditions have to be met before a claim can succeed.
The term “public works” includes any new or improved highway. Claims cannot be made until a year and a day after the highway has opened for traffic. In addition, a claim for compensation will be precluded if it relates to a date when the highway was not maintainable at the public expense and does not become so within the subsequent three years. The failure on the part of a developer or council to ensure that the highway becomes publicly maintainable can jeopardise potentially valid claims.
In O’Connor v Wiltshire County Council LCA/73/2005 unreported 6 February 2006, the developer failed to obtain a certificate of practical completion following the construction of a new bypass, in accordance with the provisions of an agreement completed under section 106 of the Town and Country Planning Act 1990. This meant that the bypass had not been adopted by the highway authority. Local residents who were adversely affected by the road noise were therefore unable to claim compensation. The claimants contended that the 1973 legislation was not compatible with human rights legislation and that the road was a public road because of various agreements that had been entered into prior to its construction. The arguments were rejected.
Landowners have no influence over the adoption of roads. The point of adoption is usually determined by way of a legal agreement between the developer and the council and is usually dependent upon the developer having remedied any defects during the relevant liability period. Given the number of potential obstacles that have to be overcome prior to the local authority taking responsibility for a road and its maintenance, it is not uncommon for roads to remain unadopted for several years following construction.
Meanwhile, the public is left in a state of limbo. The legislation clearly intends that landowners who are adversely affected should be compensated, since the road will be used and the land will consequently depreciate whether or not the road is adopted. Adoption is a legal technicality and should not be a bar to a claim.
The legislation is in urgent need of review. All landowners that are adversely affected by public works should be treated the same way, regardless of the status of the road in question.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
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When property is compulsorily purchased by, for example, a local authority acting in their capacity as a highway authority, the owner receives compensation. The owner is also entitled to statutory compensation under the Land Compensation Act 1973 in respect of the depreciation in value of an interest in land arising from public works. These provisions are, however, restrictive and a number of conditions have to be met before a claim can succeed.
The term “public works” includes any new or improved highway. Claims cannot be made until a year and a day after the highway has opened for traffic. In addition, a claim for compensation will be precluded if it relates to a date when the highway was not maintainable at the public expense and does not become so within the subsequent three years. The failure on the part of a developer or council to ensure that the highway becomes publicly maintainable can jeopardise potentially valid claims.
In O’Connor v Wiltshire County Council LCA/73/2005 unreported 6 February 2006, the developer failed to obtain a certificate of practical completion following the construction of a new bypass, in accordance with the provisions of an agreement completed under section 106 of the Town and Country Planning Act 1990. This meant that the bypass had not been adopted by the highway authority. Local residents who were adversely affected by the road noise were therefore unable to claim compensation. The claimants contended that the 1973 legislation was not compatible with human rights legislation and that the road was a public road because of various agreements that had been entered into prior to its construction. The arguments were rejected.
Landowners have no influence over the adoption of roads. The point of adoption is usually determined by way of a legal agreement between the developer and the council and is usually dependent upon the developer having remedied any defects during the relevant liability period. Given the number of potential obstacles that have to be overcome prior to the local authority taking responsibility for a road and its maintenance, it is not uncommon for roads to remain unadopted for several years following construction.
Meanwhile, the public is left in a state of limbo. The legislation clearly intends that landowners who are adversely affected should be compensated, since the road will be used and the land will consequently depreciate whether or not the road is adopted. Adoption is a legal technicality and should not be a bar to a claim.
The legislation is in urgent need of review. All landowners that are adversely affected by public works should be treated the same way, regardless of the status of the road in question.
Gill Castorina is an associate at Paul Hastings Janofsky & Walker (Europe) LLP
