Part 1 of the Land Compensation Act 1973 entitles 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” is defined to include any highway. However, any landowner seeking compensation under the 1973 Act in respect of a highway must be conscious of section 19(3), which prevents any claim from 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 [2011] EWCA Civ 862; [2011] PLSCS 196, a developer had built a highway pursuant to an agreement entered into with the council under section 288 of the Highways Act 1980. Because of considerable delays by the developer in completing maintenance and other works to the highway, it was not adopted until four years after it was first opened for public use. Despite that fact, the appellants – who alleged that the value of their nearby homes had diminished 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 (ECHR). They also argued that it breached their entitlement under Article 6 of the ECHR to a fair and public hearing by an independent tribunal to determine their civil rights.
The Court of Appeal began by agreeing with the first instance judge who had 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. Thereafter, the court allowed the appeal on the basis of the Article 1 issue.
Carnwath LJ pointed out that, in a case such as this, a diminution in value caused by interference with the peaceful enjoyment of possessions was sufficient to engage Article 1. Although the interference here was in the general interest, it did not meet the requirements of proportionality. The consequent breach could be corrected by reading section 19(3) pursuant to section 3 of the Human rights Act 1998 so as to entitle the appellants to compensation. That interpretation did not depart from any fundamental features of the 1973 Act, but rather gave effect to its intention that those adversely affected by noise from new roads should be compensated.
John Martin is a freelance writer
