O'Connor & Anor v Wiltshire County Council  EWLands LCA_73_2005 (06 February 2006)
LANDS TRIBUNAL ACT 1949
Compensation – Land Compensation Act 1973 Part 1 – Highway not maintainable at public expense within 3 years of opening – Effect of agreement to adopt under s.38(3) of Highways Act 1980 - Interpretation of s. 19(3) of Land Compensation Act under s.3 of Human Rights Act 1998 – Meaning of "0n his behalf" in s36(2)(a) and s.38(3)(b) of Highways Act 1980
IN THE MATTER OF A NOTICE OF REFERENCE
BETWEEN AMELIA O'CONNOR & PAUL O'CONNOR Claimants
WILTSHIRE COUNTY COUNCIL Respondent
Re: Dwelling House
53 Braemor road
Before: His Honour Michael Rich QC
Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL
on 26, 27 January and 3 February 2006
Robert Weir instructed by Hugh James for the Claimants
Timothy Straker QC and Paul Stenchcombe, instructed by the solicitor for the Acquiring Authority
The following cases are referred to in this decision:
Wilson v First County Trust Ltd  1AC 816
Ghaidan v Godin-Mendoza 2AC 557
Hatton v United Kingdom  37 EHRR 28
Marcic v Thames Water Utilities Ltd  2AC 42
Matthews v Ministry of Defence  1 AC1163
"the County Council shall from the date of the Final Certificate of Completion .. adopt the [NDR] as part of the highway maintainable at the public expense".
"A local highway authority may agree with any person to undertake the maintenance of a way..
(b) which is to be constructed by that person.. and which he proposes to dedicate as a highway
and where an agreement is made under this subsection the way to which the agreement relates shall on such date as may be specified in the agreement, become .. a highway maintainable at the public expense." (my underlining).
The Developers, however, failed to procure the adoption of the drainage works for the highway by the appropriate authority, in accordance with paragraph 14.7 of the Schedule to the agreement, because, apparently, of some resistance by one of the land-owners. Accordingly the conditions for the issue of the Final Certificate remain unsatisfied and it has not been issued. Accordingly the date specified in the agreement for the adoption of the highway has not been reached, although it was duly dedicated upon being opened for traffic. The Developers have accordingly remained responsible under the terms of the s106 Agreement to continue to maintain the highway, and s.38(3) of the Highways Act has not operated to make it a highway maintainable at the public expense.
"no claim shall be made if the relevant date [which means the date on which the highway was first open to the public] falls at a time when the highway was not so maintainable [that is at the public expense] and the highway does not become so maintainable within three years of that date."
The claimants' Statement of Case, dated 4 May 2005, claimed that it should be read as if certain additional words had been added to the sub-section, which not only would have made it irrelevant whether the highway ever became or was even agreed to become maintainable, but none the less would not have entitled the claimants to compensation in their particular circumstances. The Statement of Case was however amended, without objection, on the second day of the hearing to claim that:
"In order to avoid any incompatibility between the claimants' rights and section 19(3) LCA, this section should be read and given effect so that it reads:
and no claim shall be made if the relevant date falls at a time when the highway was not maintainable and when the highway authority had not agreed that the highway would become so maintainable and the highway does not become so maintainable within three years of that date."
"So far as it is possible to do so, [the Act] must be read and given effect in a way which is compatible with the Convention rights."
It will be convenient first to consider the Convention rights with which this unfairness is said to be incompatible and secondly, on the assumption of such incompatibility, whether the reading contended for is "possible" within the meaning of the Section.
"Protection of property
Every natural .. person is entitled to the peaceful enjoyment of his possessions. No person shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
Article 8 provides
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 interests of national security, public safety or the economic well-being of the country, …"
(1) The Articles are engaged because
(i) the value of the claimants' property has been reduced and thus they have been deprived of the peaceful enjoyment of their possessions (Article 1)
(ii) the claimants' enjoyment of their home has been adversely affected by the noise associated with the NDR (Article 8)
(2) The Highway Authority therefore has the burden of establishing that the statutory provision (presumably which permits these interferences) pursues a legitimate aim and there is a reasonable relationship between the means employed and the aim sought.
(3) The aim of the "three year clause" is to limit compensation to those cases where there is an expectation that the highway authority will subsequently adopt the highway.
(4) The clause is disproportionate because highway authorities who agreed before the opening of the highway to adopt such highway can escape liability to pay compensation under the Land Compensation Act.
"Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground …"
Accordingly it being agreed, as Lord Nicholls set out in Paragraph 12, that the issue concerned "a provision which falls within the 'ambit' of the right to respect for a person's home guaranteed by article 8" it was also "common ground that article 14 is engaged in the present case." Although the provisions of the "three year clause" may work unfairly, Mr Weir has been unable to rely on any breach of article 14 in such interference with the claimants' rights under articles 1 and 8 as he has identified.
" There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Art.8."
In that case the claimants failed because the Court was not satisfied that the noise pollution arising from the Scheme to regulate night flying from Heathrow Airport imposed by the Government caused such serious interference with the enjoyment of their homes as to involve a violation of their article 8 rights. If the Council has, by permitting the opening of the NDR, acted in a way which is incompatible with the Convention rights relied on, s. 7 of the Act of 1998 gives to the victims of such unlawful act a right to begin proceedings. The qualified nature of the article 8 rights would, however, as Mr Weir acknowledged, make any such proceedings hopeless, except possibly in the most extreme case. That does not however mean that the limit of provision as to compensation becomes incompatible with the rights which, for these reasons, are not relied upon as having been breached.
"There is no general rule that interference with the substance of ownership or hindering the enjoyment of property require the payment of compensation."
It seems to me however that once that is conceded, the whole edifice of his submissions falls. The possibility of breach of the Convention rights, which is what Mr Weir means by saying that they are "engaged", does not place any burden on the Highway Authority to establish the reasonableness or justification for the compensation provisions of the Land Compensation Act. Those provisions are not part of the rights required to be safeguarded by these articles of the Convention, and so there can be no question of their being incompatible with the Convention rights secured by Articles 1 and 8. The statutory provisions, to which Mr Weir's second proposition, as set out in paragraph 9 above, refers, do not therefore include s.19(3) of the Act of 1973.
"In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Thus if the claimants are entitled to the civil right of compensation for depreciation in the value of their interest in 55 Braemore Road resulting from noise caused by the use of the highway, they are entitled to a hearing of their claim, rather than having it barred by the "three year clause".
"If the purpose of [the challenged legislation] had been to give the [public authority] a discretionary power to swoop down and prevent people with claims .. from bringing them before the courts, I would agree [that this is incompatible with article 6]"
He emphasised that one must look at the substance not the form of the obstacle to access to the courts:
"What matters is whether the effect is to give the executive a power to make decisions about people's rights which under the rule of law should be made by the judicial branch of government."
"In this case the Land Compensation Act gave the claimants a right to compensation. His right accrued on the first claim day (see s.19(2A)). Any damages [he should have said depreciation] are assessed by reference to the value of their property on that day. The failure of Wiltshire County Council to adopt the highway by 20 January 2003 was to impose a procedural bar on that established right."
If that had accurately set out the right which was in fact granted by s.1 of the Act of 1973, I would agree with him.
"Where the value of an interest in land is depreciated by physical factors caused by the use of public works .. compensation shall, subject to the provisions of this Part of this Act, be payable to the person making the claim .."
Subsection (3) defines "public works" to include "any highway" and s.3(2) provides that no claim is to be made before the "first claim day" which, in the case of a highway, is a year and a day after the highway opens for traffic (s.1(9) (a)). But it is wrong to say in the case of the NDR that "the right accrued" on that day. "Highway" is defined by s.19(1) to mean ".. a highway maintainable at the public expense as defined in s.329(1) of the Highways Act 1980." Thus the NDR was not, in accordance with the s.106 Agreement, at the date of opening as a highway, a "highway" within the meaning of s.1(3) for the purpose of being "public works" for whose use compensation is payable. Accordingly the "three year clause" is not a bar to a claim which accrued on the first claim day, but, although expressed negatively, in fact an extension of the right to make a claim if the highway becomes maintainable within three years of opening.
" 'Highway' means a highway maintainable at the public expense or, if not so maintainable at the relevant date, becomes so maintainable within three years of that date"
If that had been the provision, to read "becomes" to include "has been agreed to become" would seem to me to be within the scope of an interpretative provision as explained by the majority of the House of Lords in Ghaidan's Case. I add this however, only out of respect to the full and helpful argument which I heard, on both sides as to the meaning and effect of s.3 of the 1998 Act.
"The Consortium will construct the NDR in accordance with the Accelerated Programme as agent for the County Council and for that purpose the Consortium will as principal enter into the Road Contract." (My underlining).
It appears from the definition of "Road Contract" at clause 5.1 that the Developers had in fact already "concluded the Road Contract", which, no doubt explains their being "the principal" under it. I suggested that this provision would appear to mean that the NDR was "a highway constructed by a highway authority" within the meaning of s.36(2)(a) of the Highways Act 1980, and accordingly was a highway maintainable at the public expense from the date when it was opened for traffic as a highway.
"a highway constructed by the highway authority otherwise than on behalf of some other person who is not a highway authority." (my underlining).
Clause 4.1 of the Acceleration Agreement has the effect he accepts, that the NDR was a highway constructed by the highway authority, albeit through the agency of the developers. Mr Straker however submits that it was so constructed on the Developers' behalf, and, of course, the Developers are not a highway authority.
"3.3 Further and in consideration of the County Council's advancement of the NDR (access from which highway will be to the benefit of the [Developers'] Land) the [Developers] agree to pay the sums set out .. pursuant to sections 38 and 278 of the Highways Act 1980."
Thus, in my judgement the Council's agreement to construct the NDR was an agreement to execute works on terms that the other party to the Agreement (the Developers) pays the costs on the basis that the works are executed for the Developers' benefit. The benefit is not only that which is recited, but also that the construction of the road enables the Developers to fulfil their obligations under the s.106 Agreement to complete and dedicate the NDR.
Dated 6 February 2006
His Honour Michael Rich QC