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[2004] EWLands LCA_43_2003 (28 June 2004)

LCA/43-52/2003

LANDS TRIBUNAL ACT 1949

COMPENSATION – Land Compensation Act 1973 Part I – highway noise – road constructed in sections – one section only maintainable at public expense – preliminary issues – date of opening to public traffic – limitation – estoppel – held highway was the relevant section of new road – held claims statute-barred

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN

MR AND MRS D R PRICE AND OTHERS Claimants

and

CAERPHILLY COUNTY

Compensating

BOROUGH COUNCIL

Authority

Re:

Dwelling Houses

Maes Watford

Watford Park

Caerphilly CF83 1LP

Before: The President

Sitting at Cardiff County Court, 2 Park Street, Cardiff CF1 1ET

on 5 and 6 May 2004

John Bates instructed by Hugh James, solicitors of Merthyr Tydfil, for the claimants

Barry Denyer-Green instructed Head of Legal Services, Caerphilly County Borough Council, on behalf of the compensating authority

The following cases are referred to in this decision:

Wilson v Liverpool City Council [1971] 1 WLR 302

Bell v Newcastle upon Tyne City Council (1971) 220 EG 1771, 1900 and 221 EG 39

Davies v Mid Glamorgan County Council (1979) 38 P & CR 727

Bateman v Lancashire County Council [1999] 2 EGLR 203

Hillingdon London Borough Council v ARC Ltd [1999] Ch 139

R v North East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622

Marcic v Thames Water Utilities Ltd [2002] QB 9

The following cases were also referred to:

Hillingdon London Borough Council v ARC Ltd (No 2) (2000) 3 EGLR 97

Owen v Highways Agency (unreported) LCA/37/2002

Dodd v Stansted Airport Ltd (unreported) REF/192/1996

R v A (No 2) [2002] AC 45

Wilson v First County Trust Ltd (No 2) [2003] 3 WLR 568

DECISION ON PRELIMINARY ISSUES

The claimants in these references seek compensation under Part I of the Land Compensation Act 1973 for depreciation caused by the use of a new highway. At all potentially material dates they owned and occupied houses at Maes Watford, Watford Park, Caerphilly. The compensating authority is the successor, as from 1 April 1996, to Mid Glamorgan County council, which as highway authority procured the construction of the road to which the claims relate, the Caerphilly Western Distributor Road. The preliminary issues, which I ordered to be determined on the application of the compensating authority, are intended to resolve the question whether the claimants will be entitled to compensation if they can show in due course that their houses have been reduced in value as a result of noise from the new road. Following the hearing I received written closing submissions between 11 and 14 May 2003.

The issues were stated to be:

(a) whether the reference made by the claimants is statute barred under section 19(2A) of the Land Compensation Act 1973; if not

(b) whether the road in respect of which the claimants are claiming compensation under part I of the Land Compensation Act 1973 became a public highway maintainable at public expense within three years of the opening of the said highway to public traffic;

(c) whether the claimants have valid claims for compensation (save as to quantum) under Part I of the Land Compensation Act 1973, having regard to section 19(3) thereof.

The factual background

Planning permission for residential development at Maes Watford was first granted on appeal in October 1980. In April 1983 permission was granted for road works, sewers and the layout of 21 building plots, and in December 1983 permission was granted for 13 houses. In July 1983 the Caerphilly Basin Local Plan was adopted by Rhymney Valley District Council. In the section on housing Proposals H1(a) and H1(b) stated that residential development would take place at Cwm Farm and Cwm Rawlin Farm, a total of 45 hectares. A note to Proposal H1(a) said that the precise developable area would be delineated in a Development Brief. The Development Brief was approved in October 1983. In July 1989, following the completion of complex section 52 and highway agreements, outline planning permission was granted for residential, shopping, education and public house/hotel uses together with related open space provision and highways in accordance with Proposals H1(a) and H1(b). A Master Plan was submitted in January 1990 and this showed the disposition of the proposed land uses and the layout of the principal roads, including a peripheral road on the south of the area to be developed, and in July 1991 reserved matters in respect of the principal roads and sewerage were approved.

The peripheral road became the Caerphilly Western Distributor Road. It runs in an elevated position above the land now developed, from Watford Road on the east to the Pen Rhos Roundabout on the B4600 Nantgarw Road to the west. There is access to the developed area at two points along the road.

Among the agreements entered into by the prospective developers was an agreement made on 9 August 1994 pursuant to section 11 of the Local Government Act 1972 and sections 1 and 38 of the Highway Act 1980 between Mid Glamorgan County Council and Cofton Land and Property (Caerphilly) Ltd relating to highway works. Included in the highway works that the developer was required to carry out was the construction of two sections of the Distributor Road – section A-B from point A at Pen Rhos Roundabout at the western end to point B, the junction of one of the two access roads, and section C-D, from point D on a realigned Watford Road at the eastern end to point C, the junction of the second access. Both these sections were constructed by Cofton in fulfilment of the agreement. They were adopted as a highway maintainable at public expense on 7 September 2000. The section of road between them, B-C, was constructed by contractors, Walters Group, employed directly by the County Council. The Maes Watford houses lie close to, and at a lower level than, section C-D, and it is from this section that the traffic noise that they say has reduced the value of their houses comes.

Claim forms were served by The William Ricketts Partnership on behalf of the claimants on the compensating authority on 1 April 1997. Notices of reference to the Tribunal were given on 28 March 2003.

The statutory provisions

The relevant provisions of Part I of the 1973 Act as amended are these:

"Right to compensation

1. (1) Where the value of an interest in land is depreciated by physical factors caused by the use of public works, then, if –

(a) the interest qualifies for compensation under this Part of this Act; and

(b) the person entitled to the interest makes a claim after the time provided by and otherwise in accordance with this part of this Act,

compensation for the depreciation shall, subject to the provisions of this Part of this Act, be payable by the responsible authority to the person making the claim (hereinafter referred to as "the claimant").

(2) The physical factors mentioned in subsection (1) above are noise, vibration, smell, fumes, smoke and artificial lighting and the discharge on the land in respect of which the claim is made of any solid or liquid substance.

(3) The public works mentioned in subsection (1) above are –

(a) any highway; …

(4) The responsible authority mentioned in subsection (1) above is, in relation to a highway, the appropriate highway authority and, in relation to other public works, the person managing those works…

(9) Subject to section 9 below, the relevant date in this part of this Act means –

(a) in relation to a claim in respect of a highway, the date on which it was first

open to public traffic; …

Claims

3. (1) A claim under this Part of this Act shall be made by serving on the responsible authority a notice containing particulars of –

(a) the land in respect of which the claim is made;

(b) the claimant's interest and the date on which, and the manner in which, it was acquired;

(c) the claimant's occupation of the land (except where the interest qualifies for compensation without occupation);…

(2) Subject to the provisions of this section and of sections 12 and 14 below, no claim shall be made before the expiration of twelve months from the relevant date; and the day next following the expiration of the said twelve months is in this part of this Act referred to as the first claim day…

Assessment of compensation: general provisions

4. (1) The compensation payable on any claim shall be assessed by reference to prices current on the first claim day.

(2) In assessing depreciation due to the physical factors caused by the use of any public works, account shall be taken of the use of those works as it exists on the first claim day and of any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date…

Information for ascertaining relevant date

15. (1) The responsible authority in relation to a highway or other public works shall keep a record and, on demand, furnish a statement in writing of –

(a) the date on which the highway was first open to public traffic, or was first open to public traffic after completion of any particular alterations to the carriageway of the highway; …

Interpretation of Part I

19. (1) In this Part of this Act – …

'highway' includes part of a highway and means a highway or part of a highway maintainable at the public expense as defined in section 329(1) of the Highways Act 1980 …

(2A) For the purposes of the Limitation Act 1980, a person's right of action to recover compensation under this Part of this Act shall be deemed to have accrued on the first claim day.

(3) In the application of this Part of this Act to a highway which has not always since 17 October, 1969 been a highway maintainable at the public expense as defined above –

(a) references to its being open to public traffic shall be construed as references to its being so open whether or not as a highway so maintainable;

(b) for references to the highway authority who constructed it there shall be substituted references to the highway authority for the highway;

and no claim shall be made if the relevant date falls at a time when the highway was not so maintainable and the highway does not become so maintainable within three years of that date."

The issues

The questions raised by the parties in relation to the preliminary issues are these:

(i) What is the "highway" for the purposes of the application of the statutory provisions? Is it, as the claimants assert, the whole of the Distributor Road, or is it, as the council contend, only section C-D?

(ii) When was the highway as identified in (i) first open to public traffic ("the relevant date" for the purposes of the claims)?

(iii) Was the date of the opening to public traffic more than 6 years before the date on which notices of reference to this Tribunal were given (the limitation period)? Are the claims therefore, in the absence of estoppel, statute barred?

(iv) If the period between the dates in (iii) was more than 6 years, are the council nevertheless estopped, as the claimants contend, from asserting that the date of opening was more than 6 years before the notices of reference?

(v) If the highway is the whole of the Distributor Road, are the claims ruled out by section 19(3) in view of the fact that sections A-B and B-C did not become maintainable at the public expense within 3 years of the relevant date, whenever that might be?

On question (v) Mr John Bates, who appeared for the claimants, said that if the claimants failed on this question they would wish to pursue their claim elsewhere on the basis that section 19(3) was incompatible with the European Convention on Human Rights.

Evidence

For the compensating authority Mr Barry Denyer-Green called four witnesses. His first witness, Thomas David Hadley, said that prior to local government reorganisation on 1 April 1996 he was employed as chauffeur to the Chairman of Rhymney Valley District Council. Part of his duties was driving the Chairman to civic functions. He said that he recalled that on 29 March 1996 he drove the then Chairman, Councillor Graham Evans, to the official opening of the Western Distributor Road. The opening was performed by Councillor Luther, the Chairman of Mid Glamorgan County Council. He said that he recalled this official function because it was the last official working day of Rhymney Valley DC before reorganisation. He rejected the suggestion that the opening had taken place on 1 April 1996, the date of reorganisation.

Martin Huw Sprackling Jones said that he was now employed by Caerphilly CBC and that prior to 1 April 1996 he had been employed as a technician with Mid Glamorgan County Council since 1987. He said that he had reviewed the files relating to the road and made his statement on the basis of this. He produced documents from the councils' records. He said that inquiries had been made of Glamorgan Engineering Consultancy, an agency of the county council, and Walters Group, the company that constructed the B-C section of the road. The Walters Group records showed as the commencement date 27 August 1995, as the date of substantial completion 26 January 1996, and, as the date of the maintenance certificate, 26 January 1997.

Mark Andrew James said that he had been employed as a Senior Valuer with Caerphilly CBC since 1 April 1996, and before then he had been employed by Rhymney Valley District Council. He said that Glamorgan Engineering Consultancy had written to him on 7 July 1999 saying that section B-C was opened on 26 January 1996. He had told Mr Ricketts, the claimants' agent, of this soon afterwards. He also stated it in a letter to Mr Ricketts dated 7 January 2002. Mr James said that he lived in the Caerphilly area, and he knew from his own knowledge that the whole road had been open prior to the official opening. He said that he did not know about dates. He was given the date of 26 January 1996 and saw no reason to question it. He agreed that he could not say that it was still not open on 15 March 1996, as another witness, Mr Hart, stated. Other claims had been settled on the basis that 26 January 1996 was the opening date. He had understood that the official opening took place on 1 April 1996, and he believed that initially he thought that that was the relevant date. However, as information came to light it became clear that they were talking of 26 January 1996 as the date, and then about different dates for different sections.

Maurice John King said that he was a director of Cofton Limited, the operating company of the Cofton Group, and managing director of Cofton Land and Property. Cofton Land and Property (Caerphilly) Limited was a wholly-owned subsidiary of Cofton Limited, and had acquired the land known as Cwm Farm, Caerphilly, in 1993. It entered into agreements with house building companies, Westbury, Ideal Homes and McAlpine, to develop neighbourhoods within the site. Cofton agreed to put in place roads, sewers and services to enable the residential development to take place. It entered into agreements with Mid Glamorgan CC and agreed to construct the C-D section of road before any residential development began on site. It was also agreed that, within 15 months of the start of construction of C-D, section A-B would also be constructed. Section C-D was completed to base-coat tarmac on 2 September 1994 and this road, together with other roads in the development, were open to public traffic for viewing of show homes on 30 September 1994. Section A-B was completed to base-coat stage on 28 July 1995. By letter dated 8 November 1995 Mid Glamorgan CC confirmed that the roads between D1 and D2 and C had been completed to wearing course standard, and this letter was effectively a completion certificate for the purpose of the agreement. They also confirmed in a letter of 10 November 1995 that the bond covering the construction of C-D had been reduced to what was effectively a residual level. Cofton received confirmation from Caerphilly CBC by letter dated 13 September 2000 and an acceptance certificate dated 7 September 2000 that sections A-B and C-D had been adopted.

As far as section B-C was concerned, Mr King said that he himself had driven along it on numerous occasions after 26 January 1996, and so had other people. He disagreed with the claimants' witness Mrs Evans, who said that on the day, 1 March 1996, that she moved in to her new house on the estate, section B-C was still blocked with concrete blocks. He said that occasionally, when work was being done to it, a road might be blocked for the whole or part of a day, and he could not say that there were not times when concrete blocks were not placed across the road. As managing director he visited the site approximately every 2 to 3 weeks, and after 26 January 1996 and before 1 April 1996 he drove two or three times along the full length of the road from Pen Rhos roundabout to point D2. Other cars also traversed the road. There was a junction on section B-C with Blackbrook Road to the south and it was necessary for people to drive down B-C in order to gain access to Blackbrook Road.

Christopher George Brown said he had been employed by Gloucester County Council in their transportation planning unit since February 1998. Before then he had been employed by Caerphilly CBC in their highways department as a highways liaison officer, and prior to local government reorganisation on 1 April 1996 he had been employed in the same capacity by Mid Glamorgan CC. He had written the letter of 8 November 1995 to Cofton that Mr King had referred to, and he said that he could confirm that it was the practice of the former county council to issue a letter, as opposed to a formal certificate, to evidence the completion of highway works.

Martin Lennon said that he had been employed as a senior valuer in the property division of Caerphilly CBC since 1 April 1996 and that prior to that date he had been employed by Mid Glamorgan CC from 1991. He referred to the statement of Mr Cooper on behalf of the claimants and he said that he recalled that he had a conversation with the late William Ricketts in January 1996. He was asked by Mr Ricketts what was to be the date of the opening of the road. Mr Lennon said that he made inquiries of someone in the engineers department, who advised him that the whole road was already open but that the official opening ceremony was to take place on 1 April 1996 to coincide with local government reorganisation. He called Mr Ricketts back within about 15 minutes to tell him this. He said that the first time he was asked to recall this conversation was on 29 April 2004, but he did recall it because of the reference to the official opening of a road that was already open.

For the claimants Mr John Bates called 6 witnesses. Darren Mallet said that he had lived at 12 Heol Ynys Ddu in the new development and, before moving in, on 7 July 1995 he had taken a video, showing Ffordd Traws Cwm (the new estate road running northwards from point C), Heol Ynys Ddu and the building plot of his property. He showed this video. He said that at the time there was no construction work taking place on the middle section of the bypass.

David Wilkes of 25 Maes Watford, one of the claimants, said that he and his wife had lived at the address since October 1984 when the house was first built. He said that he was aware when he bought the house that planning permission has been granted in 1980 and 1983 for residential development, and he produced a local land charges search of June 1984. In answer to the question "Have the Council approved any proposals by themselves for – (i) the construction of a new road …?" the certificate stated: "Yes – a proposed route under consideration for the proposed Western Peripheral Road lies adjacent to the south of the property." Mr Wilkes said that in 1990 he was involved in a number of meetings with Rhymney Valley DC at which the plans for Cwm Farm were discussed. It was clear from the proposal then being advanced that the Western Distributor Road would run very close to the back of his house and would be elevated above the level of his garden. He signed a petition from the residents of Maes Watford against the proximity of the road and in particular its elevation. On 17 June 1994 he was sent a letter by Mr Ricketts of The William Ricketts Partnership enclosing a partially completed claim form, and on 16 December 1996 he was sent a letter by Mr Cooper of The William Ricketts Partnership saying that as the new road had officially opened on 1 April 1996 a claim on his behalf would be submitted a year and a day after that. Mr Wilkes said that he was in contact with the council in 2000 about the delay in dealing with his claim, and on 27 June 2000 the Chief Engineer wrote saying, inter alia, that he hoped that by early autumn they would be in a position to consider firm offers of compensation. This, however, did not happen.

In June 1994 Mr Wilkes had complained to the Local Government Ombudsman about the council's conduct over the road. The Local Government Ombudsman later rejected the complaint. The council's observations to the ombudsman and the documents annexed to these made clear, Mr Wilkes said, that the Western Distributor Road was a single scheme. The 1983 Development Brief had stated:

"Access to the site will be gained via a western peripheral road commencing at Penrhos roundabout and terminating in Watford Road in the vicinity of the former reservoir."

And an officer's report to the Development Services Committee meeting of 27 February 1990 said:

"The peripheral route is seen as an important contribution to the highway hierarchy serving Caerphilly, especially if the M4 at Thornhill is constructed. Extraneous traffic from and to the Caerphilly Mountain will be able to travel along the Caerphilly By Pass and the peripheral road as a more convenient route than the present involving St Cenydd Road, Lon-y-Llin and Watford Road (Hill)."

Mr Wilkes said he thought Mr King was mistaken in saying that he had driven down the road many times after 26 January 1996.

Catherine Elizabeth White of 10 Clos y Pant, Caerphilly, said that she moved into her house on 1 March 1996 having exchanged contracts on 23 February 1996. The house lies to the north of the B-C section of the road. She had made a claim for compensation and had been made an offer, but no compensation had been paid because of the question of when the road opened. Mrs White said that a couple of weeks prior to completing she had viewed the house from the new road and could remember standing near blocks painted red and white which prevented traffic moving along the stretch of road. The blocks were about one-third of the way along B-C from point C, to the east of the Blackbrook Road junction. The road itself was finished. There was a bench in the garden of her house and it was quiet sitting there until the road opened. If the barrier had not been there it would have been possible to see traffic moving along the road, and she would soon have become aware of it if the barrier had not been there.

Mrs White said that before she moved in she lived elsewhere in Caerphilly and she worked in Cardiff. On her way back from work she used to visit her mother, who also lived in Caerphilly. There was always a traffic jam by the industrial estate to the north of the Watford Road junction, and she would have been aware if the new road had been open to traffic as this would have been a convenient way of avoiding it.

Pamela Susan Evans of 5 Clos y Pant, Caerphilly, said that she moved into her house on 1 March 1996, having exchanged contracts on 22 December 1995. This house too lies to the north of the B-C section. Mrs Evans said that she had made a claim for compensation and had been paid, as she had exchanged contracts before 26 January 1996. At the time the house was being built it was possible to drive up the new road from the Pen Rhos roundabout to access Blackbrook Road, but the road was not finished. It was not possible to reach her house along the road until after she had moved in. The road was stopped up by concrete blocks. She said she could see the blocks through the trees outside her house. The road had not been surfaced at the time she moved in on 1 March 1996. By Easter, which was on 7 April 1996, the new road was open and Mrs Evans said that she recalled telling her mother at that time to come to the house along it as that was now the direct route.

Neil Griffiths Hart said that he was currently a principal engineer with the development group at the Vale of Glamorgan Council. Prior to 1 April 1996 he was employed as an engineer by Mid Glamorgan County Council. Part of his role was to oversee the construction of new roads associated with new housing developments within the Rhymney Valley District. He was involved in the estate roads relating to the housing development at Cwm Farm where Messrs Cofton Ltd constructed the infrastructure and then sold off areas of land to various housing developers. He attended the development site on several occasions. According to his work diary his last visit to Rhymney Valley prior to local government reorganisation was on 15 March 1996. At no time during any of his site visits to the development was the by-pass road open to public traffic. Mr Hart said that he had driven along the road as a representative of the council and Mr King also would have been able to do so as a representative of the contractors, but the public was not allow to use it. Every time he visited the site there were blocks across the road and only site traffic could use the road west of point C. Mr Hart said that he used to visit the development at least once a week. When he visited it on the 15 March, he said, the wearing course was not on section B-C of the new road. He accepted that an e-mail of 19 January 2004 from the Walters Group, the contractors for section B-C, which stated that the date of substantial completion of B-C was 26 January 1996 suggested that the road would at that stage have had a finished surface, although he thought that you could have substantial completion without a wearing course. Substantial completion however did not necessarily mean open to the public. The letter of Glamorgan Engineering Consultancy of 7 July 1999 to Caerphilly County Borough Council stating that section B-C was opened on 26 January 1996, he accepted, suggested that the finished surface was on the road at that date and it also suggested, he agreed, that it was open to public traffic. He himself had never seen traffic using the road.

Kenneth John Cooper said that he was a chartered surveyor and sole principal in The William Ricketts Partnership. His firm had written to owners of houses that it thought might be affected by the Caerphilly Western Distributor Road saying that the firm specialised in obtaining compensation for owners of dwellings the value of which fell as a result of a new or improved road coming into use. His firm had been instructed by 133 claimants in relation to claims for depreciation caused by the new road. The road was, he said, effectively a by-pass scheme as, once completed, it would allow traffic to access the A468 and the A470 without having to travel through Caerphilly town centre. Mr Cooper said that he had been in partnership with Mr William Ricketts until Mr Ricketts's death on 21 May 1999. He said that he distinctly recalled having a conversation with his late partner during which Mr Ricketts conveyed to him information that he had received from Mid Glamorgan County Council concerning the title of the road scheme and the road opening date. He believed that this conversation took place in January 1996. Mr Ricketts had told him that he had been informed by Mid Glamorgan County Council that the scheme, originally known as the Caerphilly by-pass, should now be referred to as the Caerphilly Western Distributor Road and that the road opening date was to coincide with the local government reorganisation due to take place on 1 April 1996. To the best of Mr Cooper's recollection that information was given to Mr Ricketts during a telephone conversation he had with Mr Martin Lennon of the former Mid-Glamorgan County Council. Following his conversation with Mr Ricketts, Mr Cooper said, he gave instructions for the name of the scheme to be changed on the computer system and the computer database showed that this was done on 22 January 1996.

Mr Cooper said that in January 1996 he went to investigate properties that might be clients, and he saw at point C a timber barrier. He paid another visit in March 1996, taking the same route as before from D to C. The same timber beam was there, preventing access to section B-C. He said that he did not know the date when the conversation between Mr Ricketts and Mr Lennon had taken place. His understanding was that the gist of the conversation was that there was an estimate of when the opening date would be. He said he saw no need to check later the date of actual opening because a defined date had been given, the date of local government reorganisation. He recalled that there was an official opening of the road around that time. In view of the information that had been given he saw no need to ask for a section 15 certificate on the date of opening.

Mr Cooper sent 131 claim forms under cover of a letter sent by recorded delivery on 27 March 1997. The letter said that the forms were due for submission in 1 April 1997, and each form referred to the works concerned as the Caerphilly Western Distributor Road and gave as the relevant date 1 April 1996. A further claim form similarly completed was submitted on 6 August 1997 in respect another of the houses with which the present references are concerned. Having submitted these forms, Mr Cooper said, he heard nothing from the council in response to suggest that the date was wrong. It was not until almost three years later that he received a letter from them suggesting that the date was wrong. In that letter, dated 7 May 1999, the writer, Mr James, said that that he had discovered from a conversation with Glamorgan Consultancy that the relevant date was 26 January 1996, the date on which the Consultancy had issued a certificate of substantial completion and on which the road was first opened to public traffic. Mr Cooper said that he thought that a claim that wrongly stated the relevant date was invalid, notwithstanding that there was no requirement for the relevant date to be specified in the claim.

Mr Cooper said that he had meetings with Mr James on 19 September 2000, 16 August 2001 and 23 August 2001, and it was not until this last meeting that Mr James suggested that there might have been different opening dates for different sections of the road. On 5 October 2001 the council wrote, giving as the date of the opening of C-D to public traffic 6 September 1994. On 17 and 18 February 2003, he said, he and Mr James carried out joint inspections of the properties affected by the central section of the road, and on 27 February 2003 he met Mr James again and negotiated settlements in respect of 42 claims. Such claims would, Mr Cooper said, have been statute-barred when they were settled. Mr James was not concerned about the impact of the different relevant dates in relation to the Maes Watford premises. His concern was simply with the 3-year adoption period, which had originally been raised in the letter of 5 October 2001.

Mr Cooper said that, subject to reviewing his files, he thought that most of the claims,, which concerned noise, vibration, lighting and fumes, related to the C-D section, although he thought that there were some who were affected by both C-D and B-C.

Conclusions

Issue (i): what is the highway?

The compensating authority contended that the highway for the purposes of the statutory provisions was section C-D, the part of the Distributor Road that was the source of the noise and other physical effects of which the Maes Watford residents complained. That section had been opened to public traffic on 30 September 1994 or, at the latest, on 8 November 1995. The claimants said that the whole of the Distributor Road was the highway for the purposes of the provisions. Mr Bates submitted that the evidence showed that section C-D was constructed as part of a scheme, and he referred to Wilson v Liverpool City Council [1971] 1 WLR 302 and Bell v Newcastle upon Tyne City Council (1971) 220 EG 1771, 1900 and 221 EG 39. He relied on Davies v Mid Glamorgan County Council (1979) 38 P & CR 727 as showing that a scheme is not complete for the purposes of a Part I claim until all elements of it are complete. He submitted that for compensation purposes the whole road ought to be taken to be the scheme because the traffic on the bypass affected the claimants more than the traffic using section C-D before section B-C was opened.

I do not think that the concept of the scheme as developed in cases on compensation for the compulsory acquisition of land can have any direct relevance to the quite different set of statutory provisions that apply in the present case, although in some circumstances it may provide a useful analogy. In Davies v Mid Glamorgan County Council this Tribunal (J H Emlyn Jones FRICS) relied on the concept of the scheme in holding that various works at Cardiff (Rhoose) Airport should be treated together for the purposes of claims under Part I. I do not find that case to be of assistance in the quite different circumstances of the present case. The works consisted of runway and apron alterations and they were carried out in three phases over a four-year period. All of them consisted of works to or associated with the existing runway. The Tribunal held that the alterations were completed when the third of the phases was finished, since the works for the purposes of the claim consisted of the totality of the works. It rejected the compensating authority's contention that each phase constituted separate works. In my view it was plainly right to do so. I do not, however, think that the same considerations necessarily apply to a highway that is completed in stages.

It is of course the case with any road that, while a houseowner will only be affected by traffic on a particular limited section of highway, the volume of traffic, and hence the degree of disturbance, will depend on the nature of the highway system as a whole. As parts of the system are altered, the volume of traffic may change. Part I of the 1973 Act, as it applies to highways, gives a right to compensation for depreciation caused by noise etc arising from the use of a highway, and this must mean, it seems to me, the use of that part of the highway network from which the noise etc arises. Highway as defined includes part of a highway, and thus the question to be asked when determining the relevant date is when that part of the highway from which the noise arises was first open to public traffic. In relation to those of the present claims that are founded on the use of section C-D and the noise etc arising from it, it is that section and not the road as a whole that constitutes the highway for the purposes of these provisions.

That conclusion by itself does not mean that compensation arising out of the claims could not reflect depreciation suffered as a result of the use of the Western Distributor Road as a whole, as Mr Bates suggested. On the contrary, it seems clear that, if the claims can be validly made, the compensation would reflect such depreciation. This is because under section 4(2), in assessing depreciation due to physical factors caused by the use of the highway, account is to be taken of the use of the highway as it exists on the first claim day and of any intensification that may then be reasonably expected of the use of the highway in the state in which it was on that date. I conclude below that the relevant date for section C-D was 8 November 1995. By the first claim day for that section, a year after the relevant date (see section 3(2)), ie 8 November 1996, the whole of the Distributor Road was open, and the use of C-D for the purpose of assessing depreciation would be its use at that date as part of the Distributor Road. Moreover any increase in traffic that could reasonably be expected at that date would also fall to be taken into account. I would add that even if, as the compensating authority contended, the relevant date for C-D had been 30 September 1994, with the first claim day, therefore, being 30 September 1995, before section B-C was open, depreciation would still have fallen to be assessed taking account of the future use of the Distributor Road since on the first claim day such use could reasonably have been expected. It is thus not necessary to treat the whole of the Distributor Road as the highway for the purposes of these claims in order to ensure, in relation to any valid claim, that compensation reflects the use, or the use reasonably to be expected, of the Distributor Road as completed.

Although there is no clear evidence on this, it appears possible that some of the claimants may be affected to some extent by the use of B-C as well as by the use of C-D. If so, they would have separate claims in relation to the two sections. There would be obvious attractions in treating as the highway for the purpose of such claims the whole of the Distributor Road rather than the separate sections. However, as I conclude below, no claim could be brought in relation to C-D alone or if the whole road were treated as the highway, since section 19(3) excludes such claims where the highway is not adopted within 3 years of opening. The consequence of treating the whole road as the highway would thus be to deprive of compensation those who were affected by traffic on section B-C.

Mr Bates contended that the compensating authority were estopped from asserting that the highway was other than the whole of the Distributor Road. I will deal with this contention in section (iv) below.

Issue (ii): When was the highway first open to public traffic?

I take section C-D first. The compensating authority contended, on the basis of information supplied by Cofton and given in Mr King's evidence, that section C-D was open to public traffic no later than 30 September 1994. They do not themselves have any record of the date of opening, and they are thus in breach of section 15(1)(a), which requires them to keep such a record and furnish it on demand. I do not accept that the information supplied by Cofton and given by Mr King shows that C-D was open to public traffic on 30 September 1994. The evidence is that the road was completed to base-coat tarmac on 2 September 1994 and was open for the viewing of show homes on 30 September 1994. It was thus open for a limited purpose only, and while at the base-coat stage it was still a road in the course of construction. It was not a road that was open to the public for all purposes. The agreement with the highway authority, however, made specific provision for its becoming a highway. That part of the agreement dealing with this section of the road provided as follows:

"9.B Part 2 Certificate:

ON completion of the Part 2 Works to the satisfaction of the Proper Officer in all respects the Proper Officer shall issue his Part 2 Certificate to the Developer and from the date thereof:

…

(b) the Road or Roads shall become a highway or highways and remain forever open for use by the public at large …"

The letter of 8 November 1995, according to the evidence of Mr Brown, which I accept, constituted the Part 2 certificate for section C-D, and I find as a fact that it was then, and not before, that it became open to public traffic.

I have concluded that the highway for the purposes of the present claims is C-D and not the whole of the Distributor Road and that it was first open to public traffic on 8 November 1995. The claimants' contention, however, was that the highway was the Distributor Road as a whole and much of the evidence was directed towards the question of when B-C, the last section to be completed, was open to public traffic. For completeness, therefore, I will state my finding on this question of fact. The question is not an easy one. The compensating authority have failed to comply with their statutory duty to maintain records of opening, and the claimants' agents failed to establish the date by making a demand for that purpose under the statute before serving claim notices. The witnesses called to give evidence were seeking to recall a changing state of affairs at a period of time that is now 8 years ago and for which no contemporaneous notes of observation exist. There is a conflict of recollection between them. Having heard the witnesses, I think it is more likely than not that the road was open to public traffic on 26 January 1996 and that there was an official opening on 29 March 1996, which, as a Friday, was the last working day before local government reorganisation on Monday 1 April 1996. The evidence for 26 January 1996 is that the certificate of substantial completion was issued on that date. Glamorgan Engineering Consultants' schedule "Monitoring of construction: as at 4th March 1998" records against "Caerphilly Western" as the date of the completion certificate "26/01/96", and an e-mail from Walters Group, the contractors, states that their records show for the contract: commencement date 27/08/95, substantial completion date 26/01/96, and date of maintenance certificate 26/01/97. Mr Bates said that this did not amount to evidence of the road being open on that date, it merely implied it. The implication is, however, in the circumstances, sufficiently compelling, in my judgment. Mr Hart agreed that since, contrary to the recollection he had earlier expressed that on 15 March 1996 the road did not have its wearing course, it appeared that it was complete on 26 January 1996, this suggested that it was open to public traffic from that date. I think it improbable that the road was completed but was then kept closed to public traffic for over two months. I accept Mr Lennon's evidence that he was told in January 1996 by someone in the engineers department at the County Council that the road was already open but that it would be officially opened on 1 April 1996 and that he relayed this information to Mr Ricketts. I accept the evidence of Mr King that he drove along the road, as did other traffic, on a number of occasions on his visits to the development area before 1 April 1996, and, while I accept that there was a barrier on section B-C, I think that the recollection of the claimants' witnesses that this remained in place after 26 January 1996 is unsound.

Issue (iii): limitation

The case for the compensating authority is that the claims are statute-barred. Under section 19(2A) of the 1973 Act, for the purposes of the Limitation Act 1980 a person's right to recover compensation under Part I is deemed to have accrued on the first claim day. As I have noted, the first claim day is a year after the relevant date, and the relevant date is the date on which the highway was first open to public traffic. The right to make reference to the Lands Tribunal in relation to a claim under Part I becomes statute-barred 6 years after the first claim day: see Bateman v Lancashire County Council [1999] 2 EGLR 203, applying Hillingdon London Borough Council v ARC Ltd [1999] Ch 139. Mr Bates did not contend that Bateman was wrongly decided in this respect but he said that he reserved the right to argue the point elsewhere.

The notices of reference relating to these claims were given on 28 March 2003. The highway (section C-D – see above) was first open to public traffic on 8 November 1995, and the first claim day, therefore, was in each case 8 November 1996, more than 6 years before notices of reference were given. Even if the claimants are right in saying that the highway is the whole of the Distributor Road, I have found that this became open to public traffic on 26 January 1996, so that the first claim day would be 26 January 1997, again more than 6 years before the notices of reference. Subject to the claimants' contentions on estoppel, therefore, the claims in this Tribunal are statute-barred.

Issue (iv): estoppel

The claimants contend that the compensating authority are estopped from contending that the road was first open to public traffic before 1 April 1996 and thus from taking the limitation point. They also contend that the compensating authority are estopped from asserting that the highway for the purposes of the claims is section C-D rather than the whole of the Distributor Road. My conclusion is that there is no estoppel in either respect.

In submitting that the compensating authority are estopped from contending that the road was first open to public traffic before 1 April 1996 Mr Bates relied on the telephone conversation in January 1996 between Mr Ricketts and Mr Lennon. It was, he said, on the basis of this that claim forms were sent to the authority on 27 March 1997 and the authority accepted them as valid. I have said that I accept Mr Lennon's recollection of the conversation, in which, on the basis of information he had been given by the engineering section, he drew the distinction between the opening of the road and its official opening. I do not accept that the conversation gave rise to the understanding on which Mr Bates based his submission. In any event, after Mr Ricketts had been given the prospective date of the official opening, neither he nor Mr Cooper checked later to ascertain when in fact the road was opened. Nor did they ask for a section 15 certificate giving the authority's formal statement of the date. It is not necessary under the Act to submit a claim form on the first claim day. It can be submitted from then onwards. Nor is there any requirement to state the relevant date in making a claim. Nevertheless, since interest is payable, under section 18 of the Act, from the date of service of the claim or, if that is before the first claim day, from the first claim day, it is obviously advisable to serve a claim on or before the first claim day. Mr Ricketts and Mr Cooper understandably attached importance to submitting claims on or before the first claim day, and it seems to me surprising that they did not seek to establish formally the date when the road was first open to public traffic. My conclusion is that they chanced their arm on 1 April 1996, hoping that the authority would not question it and enabling them to make claims on behalf of those who had bought their houses before that date.

Mr Bates said in the alternative that a convention arose between the parties that the relevant date was 1 April 1996. It appears from Mr James's evidence that those in the authority dealing with the claims did not focus on the question of the relevant date or the fact of different opening dates for different sections for some long time. A letter from Mr James dated 7 May 1999 said: "I have discovered that the relevant date for this road scheme is the 26 January 1996 and not the 1 April 1996." That tends to suggest that up until then the authority had been treating 1 April 1996 as the relevant date. But given the knowledge that Mr Ricketts and Mr Cooper had about the different sections of the road and the doubt about the opening date, I do not think that there was the convention that Mr Bates suggests. In any event it was clear from May 1999 that the authority were saying that 1 April 1996 was not the relevant date.

Mr Bates argued that by adopting the convention that the relevant date was 1 April 1996 the compensating authority deprived the claimants of at least two months interest, since, if it had been accepted that the relevant date was 26 January 1996 (or some earlier date), claim forms would have been lodged earlier. In the circumstances, he said, it would be unfair or unjust to allow the authority to go back on their acceptance of 1 April 1996. Mr Denyer-Green's submission, which I accept, was that, if there was an estoppel, it could only operate to prevent the prejudice that the claimants would otherwise suffer if the authority were allowed to resile from the convention. There could be an argument of estoppel against a denial of interest on compensation or in relation to changes of ownership during the affected period. But there was no reason why for other purposes the authority could not have resiled from the convention from May 1999. It was clear to the claimants from then on that the authority were contending that 26 January 1996 was the date, so that the claimants had plenty of time to give notices of reference before the end of the limitation period.

The claimants, as I have said, also contended that the compensating authority are estopped from asserting that the highway for the purposes of the claims is section C-D rather than the whole of the Distributor Road. The basis of this contention was that the conversation between Mr Ricketts and Mr Lennon in January 1996 was concerned with the whole of the road and not particular sections of it; that the claims were submitted in relation to the Western Distributor Road; that correspondence referred to the road and not sections of it; and that Mr Cooper had not been told until 5 October 2001 that the road had been opened in sections. In the circumstances, said Mr Bates, at all times between January 1996 and October 2001 the parties were operating under a convention that the claims were made in respect of the whole road and not sections of it. This affected the service of the claims and the date of service, and it would be unfair and unjust to allow the authority to contend that the claims should be treated as claims relating to a particular section of the road.

In evidence Mr Cooper said that in January 1996 he went to investigate properties that might produce clients and he saw at point C a timber barrier. He visited again in March, drove from C to D and again saw the timber barrier. While I have found that his recollection about what he said he saw in March is unsound, his evidence shows that he was aware that the road was opened in sections. The relevance of this ought to have been clear to him as a professional offering expert advice and services in relation to Part I claims. The council's reliance on this sequential opening, which was stated in the letter of 5 October 2001, was therefore not the first time he became aware of the sequential opening, and it was clear from that date that they were indeed saying that there were different relevant dates for the different sections. I conclude that the authority are not estopped from asserting that the highway for the purposes of the claims is section C-D.

Issue (v): the exclusion in section 19(3)

Section 19(3) provides that no claim may be made if the relevant date falls at a time when the highway was not maintainable at the public expense and the highway does not become so maintainable within three years of that date. Section C-D (and A-B also) did not become maintainable at the public expense until 7 September 2000. The claimants accepted that, if, as I have concluded, the highway for the purposes of these claims is section C-D, the claims are excluded by this provision. On the face of it the provision would similarly exclude claims if the highway is the Distributor Road as a whole. Just as "the date on which the highway was first open to public traffic" (see sections 15(1)(a), 6(9)(a), 19(3)(a)) must mean the date when the whole of what constitutes the highway for the purposes of the provisions was so open, so "a time when the highway was not maintainable at the public expense" in section 19(3) must mean a time when the whole of such highway was not so maintainable. Mr Bates, however, argued that, if the highway was the whole of the Distributor Road, since part of it (section B-C) was adopted within the three-year period, the words of the exclusion should, pursuant to section 3 of the Human Rights Act 1998, be so construed as not to exclude the claims. He based his argument on Article 8 of the European Convention in Human Rights. Article 8(1) provides that "Everyone has the right to respect for …his home." Article 8(2) provides:

"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 economic wellbeing of the country."

Mr Bates referred to R v North East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622 and to the decision of the Court of Appeal in Marcic v Thames Water Utilities Ltd [2002] QB 9.

Mr Denyer-Green submitted that the duty on the Tribunal under section 3 of the Human Rights Act 1998 cannot be applied retrospectively. The highway was constructed and open to public traffic before the 1998 Act came into force. I accept that contention. Accordingly it is not appropriate to adopt the construction for which Mr Bates contends, which would require giving to the words of the exclusion a meaning that they do not naturally bear. In the circumstances there is no need for me to consider the other arguments addressed to me. I would add, however, that I see considerable force in Mr Denyer-Green's submission that, in making specific provision for roads that are constructed and initially maintained privately, the legislation is seeking to balance the interests of claimants and those of the wider community; and, in enabling parts of highways to be treated separately for the purposes of the provisions, it permits the distinction to be drawn between those parts of a road that are adopted and those that are not; and in consequence there is no need to adopt the construction for which Mr Bates contends.

Decision

The above conclusions mean that the claimants do not have valid claims and the claims must therefore be dismissed. The parties are now invited to make submissions on costs, and a letter on this accompanies this decision. The decision will not take effect until the issue of costs has been dealt with.

Dated 28 June 2004

George Bartlett QC, President