Part 1 of the Land Compensation Act 1973 (the 1973 Act) provides a means for landowners to claim compensation for depreciation in the value of their property resulting from physical factors caused by the use of public works. “Physical factors” is defined in the 1973 Act to include noise and vibration and “public works” includes highways. However, any landowner seeking compensation under the 1973 Act in respect of a highway must be conscious of section 19(3), which prevents a claim being made in respect of a highway that is not adopted as a highway maintainable at the public expense within three years of its opening to public traffic.
In Thomas v Bridgend County Borough Council [2010] UKUT 268 (LC); [2010] PLSCS 244, a developer had built a highway pursuant to an agreement entered into with the council under section 288 of the Highways Act 1980. The developer had delayed in completing maintenance and other works to the highway, which meant that it was not adopted until four years after it was opened for public use. Despite this, the claimants, who alleged that there was a diminution in the value of their homes because of noise from the highway, nevertheless claimed compensation under the 1973 Act. They argued that section 19(3) was incompatible with their right to the peaceful enjoyment of their possessions under Article 1 of the First Protocol to the European Convention on Human Rights. They also argued that it breached their entitlement under Article 6 to a fair and public hearing by an independent tribunal to determine their civil rights.
The tribunal tried these issues as preliminary issues, and determined them in favour of the council.
Judge Jarman QC accepted that noise arising from a public highway could interfere with Article 1 rights, but pointed out that the claimants were not contending that the construction and use of the highway violated their rights. Instead, their challenge was to section 19(3), and the bar that it imposed on a compensation claim. However, he held that the compensation provided for by the 1973 Act was not a “possession” within the meaning of Article 1. Section 19(3) was therefore not incompatible with their Article 1 rights.
The judge also held that Article 6 was not engaged. Section 19(3) was determinative as to whether any landowner had a claim for compensation. If there were such a claim, it would be decided by an independent tribunal. However, here there was no claim to decide.
John Martin is a freelance writer
