HARRY PETER OWEN v HIGHWAYS AGENCY LCA/37/2002

UPPER TRIBUNAL

LANDS CHAMBER

LCA/37/2002

Case No LCA/37/2002

Between

HARRY PETER OWENApplicant

HIGHWAYS AGENCYRespondent

Before

The President

Andrew Sharland (instructed by the Treasury Solicitor) for Compensating Authority

Venue 48/49 Chancery Lane, London WC2A 1JR

Hearing Wednesday 7 May 2003

Property: A2070 Sevington, Waterbrook Park to M20

Catchwords: COMPENSATION – preliminary issue – Land Compensation Act 1973 Part I – house affected by road traffic noise – whether claimant owner at relevant date – whether claim statute-barred – held claimant not entitled to make claim

[1]The claimant in this case seeks compensation under Part I of the Land Compensation Act 1973 in respect of the reduction in value of his house, 13 Nightingale Close, Sevington, Ashford, Kent, as the result of traffic using the part of the A2070 road that runs behind it. The compensating authority, the Highways Agency, say that the claimant is not entitled to compensation as he did not own his house at the time that is the relevant date for the purpose of Part I; and in any event that the claim is statute-barred, reference to the Tribunal having been made more than 6 years after the first claim day. Whether the claimant is disabled from claiming the compensation he seeks in his notice of reference for either or both of these reasons is the preliminary issue that I have to decide.

[2]At the hearing before me Mr Andrew Sharland for the compensating authority relied on a witness statement of Robert Brien Ley Snell, an associate director of W S Atkins Consultants Ltd, who have acted as agents for the compensating authority in relation to the claimant’s claim. His statement appended certain documents and Mr Sharland handed me in addition a completed claim form dated 26 May 1996. I also had before me letters to the Tribunal from the claimant (in particular his letters of 10 January 2002, 8 May 2002, 27 May 2002, 5 July 2002, 30 October 2002, 22 November 2002, 25 January 2003, 5 March 2003 and 2 May 2003) and documents enclosed with them. The claimant did not appear. In his letter of 5 March 2003 he said that the written material before me was sufficient.

[3]The claim arises from works carried out under powers granted by the Channel Tunnel Act 1987. Under the Act the concessionaires, The Channel Tunnel Group Limited (Eurotunnel), were empowered to construct the works scheduled in Part I of Schedule 1. They included, in the borough of Ashford, Work No 17, a dual carriageway road of rather more than 1 km in length south-westwards from junction 20 on the M20 at Willesborough to a new roundabout near Waterbrook Park; and Work No 17A, a road 85 metres long leading southwards from this new roundabout to a proposed freight depot for the Channel Tunnel. In addition, Kent County Council were authorised to construct the works scheduled in Part II of Schedule 1. These consisted of roadworks, and the principal element of them was a continuation westwards from the roundabout of the dual carriageway road. The works were carried out and the new sections of road were opened to traffic, on dates that I shall identify later. The freight depot, with railhead and lorry park, was also constructed and brought into use. The sections of dual carriageway became the A2070 Ashford Southern Orbital Road, Work No 17 being Stage 1 and the county council’s works being Stage 2. Mr Owen’s house backs on to the section that was Stage 1. The claimant says that it has suffered from traffic noise as a result of the works, in particular from the heavy lorry traffic going to the freight depot from the M20 24 hours a day.

[4]A claim under Part I of the 1973 Act for depreciation in the value of any interest in land by physical factors caused by the use of public works may be made by a person who acquired the interest before the relevant date (section 2). Under section 1(9)(a) the relevant date in relation to a claim in respect of a highway is the date on which it was first open to traffic. Section 19(2A) deals with limitation and provides that for the purposes of the Limitation Act 1980 a person’s right of action to recover compensation under Part I is deemed to have 2 accrued on the first claim day. The first claim day is defined in section 3(2) as the day following the expiration of 12 months from the relevant date.

[5]Specific provision relating to Part I claims was made by para 27 of Schedule 2 to the 1987 Act. It provided:

“(1) Subject to the following provisions of this paragraph, the Secretary of State is the responsible authority for the purposes of Parts I and II of the Land Compensation Act 1973 (compensation for, and mitigation of, injurious effects of public works) as respects the Concessionaires’ scheduled works and any other works of the Concessionaires authorised by this Act (including the construction or alteration of any highway). (2) Where a claim under Part I of that Act relates to depreciation caused by use of the road forming Work No. 17– (a) if and so far as it relates to depreciation that would not have been caused but for the opening to public traffic of Kent County Council’s scheduled works, that Council shall be the responsible authority in relation to it; and (b) if and so far as the Secretary of State is the responsible authority in relation to it, no account shall be taken in assessing compensation of any use or expected intensification of use of that road due to that opening. (3) If and so far as the Kent County Council are the responsible authority in relation to a claim under that Part of that Act by virtue of sub-paragraph (2)(a) above, that Part of that Act shall have effect in relation to the claim as if— (a) the relevant date were the date on which all of their scheduled works were first open to public traffic; (b) the increase in value to be taken into account under section 6 were any increase that would not have been caused but for the opening to public traffic of those works; and (c) subsection (1) of section 8 did not preclude the payment of compensation unless the previous claim was in respect of depreciation that would not have been caused but for that opening and subsection (2) of that section did not preclude the payment of compensation.”

[6]On the basis of the material before me I find the following facts. The Land Registry entry shows that the claimant acquired 13 Nightingale Road by transfer dated 21 September 1990. Stage 1 of the new road (Work No.17) had been opened to public traffic on 30 March 1990, as stated in the letter of 4 April 1990 from Mr P L Hammond, Eurotunnel’s Works Manager to Mr P Allwood of Transmarch-Link Joint Venture. Although the Department of Transport wrote on 27 February 1996 to Mr Owen’s then agent, B Wood Consultancy, saying that the District Valuer stated that this stretch of road was opened to the public on 25 July 1990, this 3 was evidently an error. It was corrected in a letter of 14 May 1998 from Kent County Council to the Department in the light of the county council’s records.

[7]The freight depot was opened, and by implication the road to it from the roundabout was first opened to public traffic, on 19 May 1994: see the Department of Transport public notice of June 1995. The last of the county council’s scheduled works, Work No 20, was opened to public traffic on 17 June 1994. In addition it appears that a footbridge across the new road in the vicinity of the claimant’s house was constructed and opened at some time in 1994.

[8]Because there were two prospective compensating authorities – the Secretary of State for Transport in respect of Work 17 and 17A and the county council in respect of their works – there was evidently doubt in the minds both of the authorities and of claimants as to whom claims relating to Work 17 should be directed. It became a matter of dispute between the authorities, and the correspondence reveals a confusion about the effect of para 27(2) and (3) of Schedule 2. Acting for a number of claimants was Barrie Wood of B Wood Consultancy, and he submitted a number of claims both to the Department and to the county council. Copies of two claims made on behalf of Mr Owen are before me. The first dated 25 May 1996, gave as the date on which the claimant acquired the land “1990 – Purchase” and the public works to which the claim related as “A2070 M 20 to Waterbrook Park opened 25 July 1990”. The amount of the claim was £20,000. The claim does not state to whom it was addressed nor does it have any receipt stamp on it. The second claim, dated 26 May 1996 was on a form headed “Department of the Environment” and was stamped “Received in Channel Tunnel Division Date 30.5.96”. It gave the date of acquisition of the claimant’s interest as “1990”, the public works as “A2070 Junction 10 - M20 to Waterbrook Park – Alterations”, and the relevant date as “19 May 1994”. The amount of compensation claimed was “To be negotiated £12,000”.

[9]It is not clear to me, as the case for the authority contends, that the first claim was in fact sent to the Department rather than to the county council. B Wood Consultancy sent claims to the county council on a number of dates, including 29 May 1996, as their letter of 2 February 2000 shows. Some were in respect of “A2070 Junction 10/M20 to Waterbrook Park – Alterations” quoting a relevant date of 19 May 1994, as appears from the county council’s letter to the Department of 14 May 1998. However, the one relating to 13 Nightingale Close was the only one of its particular batch that did not refer to “Alterations”: see the county council’s letter of 13 December 1999 to the Department. The county council did not accept that it was the appropriate recipient of the claims. The Department apparently did nothing in relation to the claim that had been made to it on Mr Owen’s behalf. The two authorities disagreed about who was responsible.

[10]Eventually on 2 February 2000 Mr P W Dodds of the Department wrote to the county council:

“I can now advise you that the following discussions between the Highways Agency based in Dorking and this Department, the Highways Agency has agreed to accept and process all the outstanding claims relating to the A2070 Junction 10/M20 to Waterbrook Park. This decision is without prejudice to any future decision as to whether or not any compensation should be settled on the claims in question. 4 Furthermore our legal advice is that there may be two responsible authorities, Kent County Council in relation to one element of the claim and the Secretary of State in respect of the remaining element. The Highways Agency will no doubt consider whether or not this is the position and will contact your Council in due course. As to the number of claims involved, I understand that Mr Wood has forwarded 49 claims to the Highways Agency which refer to ‘Alterations’ to the A2070 Junction 10/M20 to Waterbrook Park and he will also forward the remaining claims which relate to the Stage 1 works. I believe that there are at least 19 outstanding claims in this last batch.”

[11]On the same date Mr Wood wrote to the county council asking them to forward the claims he had sent them on various dates, including, as I have already noted, 29 May 1996. On 13 April 2000 W S Atkins were sent instructions from the Highways Agency to commence negotiations to settle a claim from Mr Owen. These stated the first claim date to be 25 July 1991 and the date the claim was received as 30 May 1996. It was, I infer, the first rather than the second claim that was enclosed with the instructions, the one that had been sent to the county council by Mr Wood.

[12]The claimant gave notice of reference to the Tribunal on 26 February 2002, having by then, it appears, dispensed with the services of Mr Wood. The authority applied to have the question whether the claimant is statute-barred determined as a preliminary issue, and I ordered that it should be so determined. The authority say, firstly, that Stage 1, Work No 17, was opened on 30 March 1990, that the claimant acquired his interest in the land after that date, on 21 September 1990, and therefore that he had no right to compensation. Secondly, they say, the first claim day was 31 March 1991 and, since the reference to the Tribunal was made on 26 February 2002, more than 6 years after the first claim-day, on which the right of action is deemed to have accrued for the purpose of limitation, the claim is statute-barred.

[13]Mr Owen has advanced three contentions on the first point. Firstly he has asserted that the relevant date, when the Stage 1 section of the road was opened to public traffic, was 25 July 1990 as stated in the Department’s letter of 27 February 1996, and that he had contracted to buy the house on the previous day. However, it is my view clear, as I have said, that the date of 25 July 1990 was an error, and that the relevant date for Stage 1 (Work No 17) is 30 March 1990. In any event an interest only qualifies for compensation if it is an owner’s interest (section 2(2) of the 1973 Act), and an owner’s interest is the legal fee simple or a tenancy with at least 3 years unexpired (section 2(4)). Mr Owen did not acquire a legal interest in the house until 21 September 1990.

[14]Secondly, Mr Owen says that until the freight depot and the road to it (Work No 17A) were opened on 19 May 1994 the A2070 effectively led nowhere other than to houses (including his) to which access was gained via Church Road. (Church Road was, it appears, stopped off at the A2070 when the freight depot opened. The pedestrian bridge across the A2070 was constructed at about that time). Therefore, says Mr Owen, the relevant date is 19 May 1994, and he does, I think, rely on the second claim, which gives this as the relevant date. Undoubtedly by that stage Mr Owen had an interest qualifying for compensation although it is wholly improbable that use of Work No 17A itself would have depreciated the 5 value of Mr Owen’s house, lying as it does almost 1 km away. It is the use of traffic on the A2070 immediately behind the house about which Mr Owen complains, but the relevant date for this, so far as the liability of the Highways Agency is concerned is 30 March 1990, and the opening of Work 17A did not alter that date.

[15]Thirdly Mr Owen relies on the provisions in para 27 of Schedule 2 to the 1987 Act that I have quoted above. Under this, he says, the relevant date is when all of the county council’s scheduled works were first open to public traffic. This, as I have found on the basis of information supplied by the Treasury Solicitor, was 17 June 1994. The provisions of para 27 were, it seems the source of confusion on the part of Mr Wood and the county council, and the cause of dispute between the county council and the Department. They appear to me, however, to be reasonably clear. They reflect the fact that Work No 17, though constructed by the concessionaires so that it could serve the freight depot, was also to become part of the Ashford Southern Orbital road when Stage 2 was constructed by the county council. The effect of para 27 is to make the Secretary of State the responsible authority for depreciation caused by use of Work No 17, except to the extent that any such depreciation would not have been caused but for the opening to public traffic of the county council’s works, and for this the county council is the responsible authority. Thus depreciation caused by traffic using the A2070 to access the freight depot prior to the opening of Stage 2 would give rise to a claim against the Secretary of State. Any additional depreciation caused by traffic on Stage 1 that arose from the opening of Stage 2 would give rise to a claim against the county council. Under para 27(3)(a) the relevant date for this latter purpose was the date on which all of the county council’s scheduled works were first open to public traffic; and, clearly, all of the works were not so open until the last of them was. Para 27(3)(a) only applies, however, in relation to any claim against the county council. For a claim against the Secretary of State in relation to Work No 17 the relevant date is, I have said, 30 March 1990. There is no claim against the county council that is the subject of the present reference. A claim was made to the county council, as I have found (although Mr Wood, Mr Owen’s agent, apparently sent them the form containing the claim that was meant for the Department), but this was, with Mr Wood’s agreement, later treated as being made to the Department instead.

[16]Both claims made on Mr Owen’s behalf, therefore, are claims against the Highways Agency. In respect of the first, which related to Work No 17, the relevant date is 30 March 1990, and Mr Owen did not at that date have an interest qualifying for compensation. Under the second claim, which can only relate to Work No 17A, the relevant date is 19 May 1994. At that date Mr Owen did have an owner’s interest. (I repeat, however, for completeness, that it seems improbable that any depreciation to Mr Owen’s house would have been caused by the use of that work.)

[17]The second question that arises is whether the claim is statute-barred. Under section 9(1) of the Limitation Act 1980 an action to recover any sum recoverable under statute shall not be brought after the expiration of 6 years from the date on which the cause of action accrued. This period of limitation applies in the case of claims under Part I of the 1973 Act (see Bateman v Lancashire CC [1999] RVR 125) and, as I have noted, the right of action accrues on the first claim day. The first claim day in relation to the first claim was 31 March 1991. In relation to the second claim it was 20 May 1995. Mr Owen’s reference to this Tribunal was dated 10 January 2002, more than 6 years after each of the claims. 6

[18]On 23 July 2001 the Highways Agency had written to Mr Owen to say that the first claim was invalid as he had not acquired his interest before the relevant date while the second claim had been assessed by W S Atkins Consultants Ltd as not attracting any compensation. As soon as notification was given to him of the reference to the Tribunal the Treasury Solicitor reserved the Highways Agency’s position in relation to the question of limitation. I can see nothing to suggest that the Highways Agency is estopped from relying on the Limitation Act.

[19]Mr Owen says that he made claims to the Department within 6 years and he cannot see why he should have appealed, as he puts it, to the Lands Tribunal before the claims were rejected on 23 July 2001. He misunderstands the effect of the limitation provisions, which apply not to the making of a claim to the compensating authority but to the giving of notice of reference to this Tribunal, but his perplexity is perhaps not altogether surprising. There is nothing that requires a compensating authority that has received a claim to alert the claimant to the fact that there is a limitation period in respect of references to the Lands Tribunal. Consideration ought to be given, it seems to me, to making such notification a rule of practice.

[20]I conclude as follows:(a) The claimant did not have an interest qualifying him for compensation in relation to Work No 17, but he did have such an interest in relation to Work No 17A.

(b) The claim against the compensating authority in respect of these works is statute-barred. The claimant was accordingly not entitled to make the reference, which must be dismissed.

[21]The Highways Agency do not apply for costs, and I therefore make no order in this respect. 16 May 2003 George Bartlett QC, President 7