Thomas & Ors v Bridgend County Borough Council

Depreciation in the value of a home caused by noise or other physical effects from public works may interfere with the peaceful enjoyment of possessions under article 1 of the First Protocol. A claimant need not establish a partial taking or an interference meeting the article 8 threshold of directness and seriousness.

Compensation is relevant to whether the statutory scheme strikes a fair balance. Section 19(3) of the Land Compensation Act 1973 could not fairly allow unreasonable delay in adopting a road to extinguish compensation. Under section 3 of the Human Rights Act 1998, it was read compatibly so that a claim survived where an agreement made before the road opened contemplated that it should reasonably become publicly maintainable within three years.

The householders owned properties near a relief road built by a housing developer under planning and highways agreements. The road opened to public traffic in July 2002 but was not adopted by the council as maintainable at public expense until June 2006. Section 19(3) of the Land Compensation Act 1973, read ordinarily, therefore barred their claims for depreciation caused by noise and other physical effects.

The Lands Chamber of the Upper Tribunal decided the preliminary issue against the householders. Their appeal raised whether the statutory exclusion was compatible with article 1 of the First Protocol to the European Convention on Human Rights and, if not, whether section 3 of the Human Rights Act 1998 permitted a compatible interpretation.

1. Appeal allowed unanimously. Carnwath LJ delivered the leading judgment. Hedley J agreed in full and Mummery LJ agreed. The preliminary issue was decided in favour of the householders.

2. Depreciation in value caused by interference with the enjoyment of property was sufficient, on the assumed facts, to engage article 1 of the First Protocol. Loss of a quiet or pleasant environment without evidence of economic loss would not suffice. Article 1 did not, however, require a partial taking or the distinct article 8 threshold of direct and serious interference. Antonetto v Italy was applied, while the broader reading advanced from Rayner v United Kingdom was rejected.

3. The proportionality inquiry asked whether a fair balance had been struck between the general interest and the protection of individual property rights. Compensation was an important part of that balance. It was incorrect to separate the depreciation caused by the road from the absence of compensation on the ground that the statutory entitlement was not itself a possession.

4. The three-year condition in section 19(3) of the Land Compensation Act 1973 could legitimately identify a sufficiently close connection between a privately built road and its later adoption as a public highway. Its operation here was nevertheless arbitrary. A diligent developer would preserve compensation liability, while an inefficient developer could extinguish it through unreasonable delay. That result imposed an excessive burden and breached article 1.

5. Section 3 of the Human Rights Act 1998 permitted a compatible interpretation. Such an interpretation supported the statutory purpose of compensating those whose property was depreciated by new public works and did not alter a fundamental feature of the scheme. On the facts, section 19(3) was to be read so that the claim remained available where an agreement made by the highway authority before the relevant date contemplated that the road should reasonably have become maintainable at public expense within three years.

6. No formal textual redrafting or declaration of incompatibility was required. It was enough to determine that the householders were entitled to claim compensation under the Act. Article 6 did not assist because the dispute concerned the existence of a substantive right rather than procedural fairness.

1. Court of Appeal (Civil Division): Allowed the householders’ appeal unanimously and decided the preliminary issue in their favour: [2011] EWCA Civ 862 .
2. Lands Chamber, Upper Tribunal: HH Judge Jarman QC decided the preliminary issue against the householders, holding that the absence of statutory compensation was not itself a possession protected by article 1 of the First Protocol. No neutral citation is stated.