| LOCAL GOVERNMENT — Public highway — Compensation for nuisance — Noise pollution depreciating value of houses adjoining new highway — Highway constructed by developer — Whether highway maintained at public expense at date highway construction completed for public use — Land Compensation Act 1973 (c 53), s 19(3) — Highways Act 1980 (c 66), 24(2), 36(2), 274, 278
O’Connor and others v Wiltshire County Council [2007] EWCA Civ 426
CA: Chadwick, Scott Baker and Thomas LJJ: 9 May 2007
A public highway was not necessarily constructed “on behalf of” a person who made some contribution towards the cost of its construction and the fact that someone had contributed towards the costs of construction did not prevent the highway being maintainable “at the public expense” for the purposes of s 36(2) of the Highways Act 1980 and s 19(3) of the Land Compensation Act 1973.
The Court of Appeal so stated allowing the appeal of the claimants, Amelia O’ Connor and Paul O’Connor together with 78 others, from the decision of the Land Tribunal (Judge Michael Rich QC) on 29 March 2006 that, for the purpose of their claim for compensation for the depreciation of their interests in their homes adjoining the new highway by reason of noise pollution, the Northern Distributor Road in Calne, Wiltshire, was not a highway maintainable at the public expense at the date when it was opened to traffic so that s 19(3) of the Land Compensation Act 1973 Act barred any claim to compensation which the claimants might otherwise have had. The NDR, for which the defendant county council was the local highway authority, was opened to traffic on 20 January 2000.
By s 19(3) of the 1973 Act, “ no claim shall be made if the relevant date falls at a time when the highway was not so maintainable [at the public expense] and the highway does not become so maintainable within three years of that date”. By s 36(2) of the 1980 Act, “the following highways shall ... for the purposes of this Act be highways maintainable at the public expense–(a) a highway constructed by a highway authority, otherwise than on behalf of some person who is not a highway authority”.
CHADWICK LJ said that the Northern Distributor Road (“the NDR”) was to have been constructed by the county council through the agency of a consortium. S 278(1)(a) of the Highway Act 1980 enabled the local highway authority to enter into an agreement with someone else under which the authority would agree to construct a highway (under the power conferred by s 24(2) of the Highway Act 1980) upon terms that the other party to the agreement would pay the whole or a part of the cost of those works. In the present case it was s 278(1)(a) of the 1980 Act which enabled the county council to enter into the second agreement, the acceleration agreement, under which the road was eventually constructed; but it was s 24(2) of that Act which authorised the county council to perform the obligation, ie to construct the NDR, which it assumed under that agreement. The 1980 Act, at ss 36(2)(a) and 38(3)(b), used the phrases “on behalf of” and “on his behalf”. His Lordship would reject the proposition that a highway was necessarily to be taken as constructed “on behalf of” a person who made a payment of part of the costs of works under a s 278 agreement; or as constructed “on behalf of” another authority which made a payment under s 274. His Lordships was not persuaded that the legislature intended that the proviso to s 36(2)(a) of the Act would operate so as to lead to the result that a highway constructed by a highway authority was not maintainable at the public expense in every case in which there had been some payment under a s 278 agreement or some contribution under s 274. The proper approach was to ask whether the circumstances in which the highway was constructed by the highway authority should lead to the conclusion that it was so constructed on behalf of some other person who was not a highway authority. Adopting that approach in the present case, his Lordship would conclude that the NDR was not constructed on behalf of some other person. It was not constructed on behalf of the consortium: the purpose of the acceleration agreement was that the NDR should not be constructed by the consortium. An agreement under which an act was to be done by A as agent for B was not to be treated as having the effect that B was doing the act on behalf of A. Nor was the NDR was constructed on behalf of the district council, which had no power to construct the NDR: their power was limited to making a contribution under s 274 of the Act. The NDR therefore fell within s 36(2)(a) of the 1980 Act and s 19(3) of the 1973 Act did not bar the claim to compensation in this case.
SCOTT BAKER and THOMAS LJJ agreed.
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