Compulsory purchase – Compensation – Human rights – Claimants seeking compensation for diminution in value of properties because of noise and other nuisance from new road – Road not adopted by respondent highway authority within three years of being opened to public traffic – Section 19(3) of Land Compensation Act 1973 accordingly barring compensation claim – Whether section 19(3) incompatible with Article 1 of First Protocol to and Article 6 of European Convention on Human Rights – Preliminary issue determined in favour of respondents
The claimants owned and lived in properties near a relief road that a developer had built pursuant to a agreement with the respondent council under section 278 of the Highways Act 1980. Under that agreement, dated April 2002, the respondents were to adopt the road as a highway maintainable at public expense upon the issue of a letter of acceptance, following a 12-month maintenance period after the road had been substantially completed. The road was first opened for public use in July 2002, but the developer took three years to complete the works necessary to enable a letter of acceptance to be issued. In the event, the respondents did not adopt the road until 2006.
The claimants claimed compensation from the respondents, under the Land Compensation Act 1973, for an alleged diminution in the value of their homes because of noise and other nuisance caused by the use of the road. However, section 19(3) of the Act barred such claims where the road in question had not been adopted within three years of being open to public traffic.
On references to the Lands Tribunal, the claimants contended that section 19(3) represented an unlawful interference with their right to the peaceful enjoyment of their properties, under Article 1 of the First Protocol to the European Convention on Human Rights, and breached their right under Article 6 to a fair and public hearing to determine their civil rights. That matter was tried as a preliminary issue. The claimants did not dispute that the road had been built in the public interest and that section 19(3) pursued the legitimate aim of not imposing liability on a highway authority to compensate owners whose property values had been affected by the building of a private road that the authority did not intend to adopt. However, they submitted that the means by which the Act sought to achieve that aim gave rise to an unintended gap through which deserving cases fell, such that it did not strike a fair balance between the general interest and the private rights of individuals.
Held: The preliminary issue was determined in favour of the respondents.
(1) Article 1 of the First Protocol contained three distinct rules. The first was of a general nature and enunciated the principle of the peaceful enjoyment of property. The second covered deprivation of possessions. The third recognised that contracting states were entitled to control the use of property in accordance with the general interest. In order to be compatible with Article 1, any interference with the right to peaceful enjoyment of possessions had to strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s private rights: JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2008] 1 EGLR 111 applied.
In principle, noise and other nuisance arising from the use of a public road could interfere with the first rule in Article 1. However, that did not assist the claimants since they had conceded that the road had been built in the public interest and were not contending that the building and use of the road violated their Article 1 rights. Instead, it was the effect of the 1973 Act that lay at the heart of their case for interference. However, that Act did not affect the rights that were protected by Article 1: O’Connor v Wiltshire County Council [2006] 2 EGLR 81; [2006] 18 EG 152 considered. The claimants would continue to suffer from the noise and other nuisances that emanated from the use of the road, which had been determined to be in the public interest, irrespective of whether they received compensation under the Act. Any resulting decrease in the value of their homes would likewise have been suffered regardless of the payment or otherwise of compensation. The compensation provided for by the 1973 Act to mitigate that decrease was not a possession within the meaning of Article 1.
Further, the Act did not affect the claimants’ opportunity to challenge the interference with their Article 1 rights. The scheme for compensation did not form part of the measures that interfered with the rights guaranteed by Article 1: Capital Bank AD v Bulgaria 49429/99 (2007) 44 EHRR 48 applied. Accordingly, section 19(3) of the 1973 Act was not incompatible with the claimants’ Article 1 rights.
(2) Article 6 of the Convention was not engaged. Section 19(3) was determinative as to whether a particular homeowner had a claim for compensation. If such a claim arose, it was to be determined by an independent tribunal. However, if three years elapsed between the opening of the road and its adoption, there would be no claim to determine. The highway authority’s decision on whether to adopt within that timescale did not determine rights of a party that ought to be decided by the judicial branch of government, and the rule of law did not require that decision to be made by the judicial branch: Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163 distinguished. Accordingly, section 19(3) was not incompatible with the claimants’ Article 6 rights.
Peter Weir QC (instructed by Hugh James Solicitors, of Cardiff) appeared for the appellants; Paul Stinchcombe (instructed by the legal department of Bridgend County Borough Council) appeared for the respondents.
Sally Dobson, barrister
