A sigh of relief

Just when you thought they were extinct, a human rights environmental case – involving the adoption of a highway – succeeds. David Hart QC reports.

Conventional wisdom has it that an Article 1 Protocol 1 (the human right to peaceful enjoyment of property) environmental claim faces all sorts of difficulties. The claimants may have a right to the peaceful possession of property, but that right is immediately counter-balanced by the public interest of the scheme under challenge. Furthermore, the court does not look too closely at the detail when applying the proportionality test, as long as the scheme is lawful. Or does it?

The case of Thomas v. Bridgend County Borough Council [2011] EWCA Civ 862 is a refreshing example of where manifest injustice was avoided by a successful claim under Article 1 of the First Protocol of the ECHR. It also shows off the muscles of the duty to interpret legislation, under section 3 of the Human Rights Act 1998, in accordance with the ECHR. To find what it was about, we need to go to the Hendre Relief Road in Pencoed, Bridgend and those who live nearby.

The locals claimed statutory compensation from the Council under Part I of the Land Compensation Act 1973 for depreciation in the value of their houses attributable to noise etc from this new road. However, they faced one apparently insurmountable obstacle, a statutory time limit of three years. The road had opened to traffic on 9 July 2002, but was not adopted by the council (in the jargon, it had not become maintainable”) until 29 June 2006, that is more than three years later. The date of opening of the road was the “relevant date” under the legislation, but s.19(3) of the 1973 Act said that "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".

Ergo, said the Council, the claimants had no claim on the opening of the road, and by the time the road became maintainable on adoption, it was too late.

What was going on in the four years between opening of the road and its adoption? The road had been built and opened to traffic by a developer to enable its housing development, but the developer had then become particularly dilatory in various minor completion works, without which the Council, quite understandably, was not willing to take over the ongoing maintenance of the road. Part of the planning deal between the developer and the Council was the developer’s agreement to indemnify the Council against any compensation claim. So if the completion works became hugely drawn-out and exceeded the three-year period from opening, then, hey, the developer escaped footing the bill for compensation – or so he thought. The Court of Appeal did not find that this was the motive for the dilatoriness, though they were somewhat sceptical about why it had taken so long for adoption to occur.

The case proceeded by way of preliminary issues based upon assumed facts, but those facts appear fairly typical of road noise claims. The central issue for the Court was how to read s.19(3) of the LCA in the light of the claimants’ Convention rights.

In summary, the CA said that on an ordinary reading of the Act the claim was excluded by s.19(3). But was that result compatible with the claimants’ A1P1 rights, and if not, could the CA provide a remedy? Its answer: No, not compatible, and Yes, a remedy.

The Case under the ECHR

The claimants relied on A1P1 and Article 6 of the Convention (right to a fair trial). The latter got short shrift. Article 6 is about procedural rights, and the claimants were after a substantive right, not the fairness of the procedure by which it is determined. There is slightly more in this argument that meets the eye, because a limitation defence can be characterised as a procedural defence, but the CA was anxious to get to the nub of the claim under A1P1.

The claimants’ case was that the use of the road has interfered with the peaceful enjoyment of their houses; and that the provisions designed by Parliament for their protection, and necessary to achieve the fair balance which A1P1 requires, fail to do so because they can be defeated by the unilateral action (or inaction) of those responsible for payment. They invited the court to remedy that defect, under section 3 of the Human Rights Act 1998, by re-interpreting section 19(3) of the Act; or, failing that, to make a declaration of incompatibility.

The interpretation of A1P1

The CA proceeded to look at a whole line of Strasbourg cases on A1P1 such as Sporrong and Lönnroth v Sweden, a long drawn-out compulsory purchase case where the public authority did not in the event require the property but its use was sterilised in the meanwhile. In that case, the measures created a situation which “upset the fair balance which should be struck between the protection of the right of property and the requirements of the general interest…” and (for the claimants) “an individual and excessive burden which could have been rendered  legitimate only if they had had the possibility to seek a reduction in the time-limits or of claiming compensation”. (para 73)

Later cases (see e.g. Bugajny v Poland para 56ff) have given further guidance on the practical application of A1P1. Claims need to be examined under four heads:

(i) Whether there was an interference with the peaceful enjoyment of ”possessions”;

(ii) Whether the interference was “in the general interest”;

(iii) Whether the interference was “provided for by law”;

(iv) Proportionality of the interference.

In our case, there was no issue as to (ii) and (iii); the construction of the road was in the general interest, and lawful. But was there an interference under (i), and if so, was it proportionate under (iv)?

Interference with peaceful enjoyment

This is not as easy to establish as it sounds. It is not enough to show “mere” interference with the enjoyment of property. There is no right to peaceful enjoyment of possessions in a pleasant environment: see an old Heathrow air noise case, Rayner v UK (1987) 9 EHRR CD375, which stressed the importance of the fact that there was no evidence of substantial diminution in value of property prices based upon that air noise. Such evidence could establish a partial taking of property, necessitating payment of compensation.

More recent Strasbourg air noise cases were brought under Article 8 rather than A1P1, notably the decision of the Grand Chamber in Hatton v UK (2003). That Court said: “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 Article 8…” (para 96).

Hence, there was little recent authority on what was required under A1P1 in this context, and the CA found itself spelling out from various dicta what was required to establish an A1P1 interference. The major issue was whether the fact of some interference plus diminution in value was enough to tick the A1P1 first box. The Council argued not: it said that “direct and serious” interference needed to be established, and the claimants could not show that. The CA, after a further tour d’horizon of Strasbourg and domestic cases, disagreed. The law did not require such a high level of interference to engage A1P1: a claimant does not have to show that his property is unsaleable or he has been deprived in any sense of the use of his property.

Proportionality

The test here is: did the interference strike the requisite fair balance between the demands of the general interest of the public and the requirements of the protection of the claimants’ rights, or did it impose a disproportionate and excessive burden on them?

The claimants argued that the balance drawn by the LCA  is not fair, because it left a gap, apparently unintended, in the protection which Parliament intended. It is manifestly anomalous and unreasonable that the right to compensation, following the opening of a new road, should be lost merely because of unjustified delay by the developer, whose interests were in direct conflict with those of potential claimants.

The Council said that s. 19(3) LCA represents a legitimate limitation on the scope of the right granted by the Act, well within the margin of discretion allowed to a member state under the Convention. It was entitled to make highway authorities liable only in respect of highways  for which they were responsible. A time limitation was justified in the interests of certainty and it was reasonable to make the period relatively tight. The fact that there are some anomalies in the operation of the limits set by Parliament is not sufficient to show that those limits are without reasonable foundation, or to take the legislation outside the permissible margin of  discretion.

The CA agreed with the claimants.

“In deciding whether the proportionality test is satisfied, the court is entitled to treat the compensation rights created by the Act as part of the ”fair balance” thought necessary by Parliament. Where a class of potential claimants is excluded from those rights, the court is entitled to inquire into the reasons for the exclusion, and ask whether it serves any legitimate purpose, or leads to results 'so anomalous as to render the legislation unacceptable'
(J A Pye (Oxford) Ltd v UK (2008))

"Whatever its purpose, the operation of the provision in circumstances such as the present is truly bizarre. The diligent road-builder who completes his project in time is penalised by liability for compensation; the inefficient road-builder is rewarded by evading liability altogether. For the householders there is a double disadvantage. Not only do they suffer the inconvenience and disturbance of a protracted maintenance period, but they lose their right to any compensation for the effects of the use which they are already experiencing. This result is in my view so absurd that it undermines the fairness of the “balance” intended by Parliament, and necessary to satisfy Article 1."

Hence the CA’s finding that a breach of A1P1 had been established.

Remedy

This part of the judgment is no less interesting. The CA had a choice, either to interpret s.19(3) to make it fit with the claimants’ rights or to make a declaration of incompatibility. But the problem with a declaration is that it would not get the claimants their money. It simply tells the government to amend the law to make it fit in future.

Hence, the truly heroic efforts which followed, trying to find a wording which did fit, given the duty of interpretation under. s.3 of the HRA. The claimants asked the CA to read s.19(3) as though amended by the addition of the italicised words as follows: "…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 unless the highway authority agreed by the relevant date that the highway would become so maintainable".

Unsurprisingly, the Council said, no, it could not be stretched that far. Yes, the interpretative power given by s.3 is very wide, but the interpretation must be one which is consistent with the fundamental features of the legislation, and goes with the grain of the legislative scheme.

The CA then summarised the position: s.3 requires the court to read legislation in a way which is compatible with Convention rights, “so far as it is possible to  do so”.  In Re S [2002] 2 AC 313 Lord Nicholls described it as  “a powerful tool whose use is obligatory” [38]; he acknowledged, however,  the difficulty of “identifying the limits of interpretation in a particular
case”, adding: “For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate…” [40].

The CA concluded: "The proposed interpretation does not depart from any fundamental feature of the Act, but rather gives effect to the intention that those adversely affected by noise from new roads should be compensated. 'Logic and common sense' suggest that had Parliament been alerted  to the problem it would not have left open a loophole such as revealed by the present case."

Hence it felt it was able to make a judgment that the interpretation was unlikely to have practical repercussions. Indeed the CA then re-wrote the section as follows: "… 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 unless, under an agreement made by the highway authority before the relevant date, the highway should reasonably have become so maintainable within that period."

This was because: "This would have the advantage of respecting the spirit of the three-year time-limit, but in a way which avoids the absurd effects of unreasonable delay by the developer."

But such a re-write was not absolutely critical to the outcome: "The Court is not required to redraft the statute with the precision of a Parliamentary Draftsman, nor to solve all the problems which it may create in other factual situations. It is enough to determine that on a proper reading, and on the facts disclosed in the case, the claimants are entitled to compensation under the Act. That is sufficient to meet the needs of this case."

Conclusion

A bizarre set of circumstances threatened to prevent claimants from getting compensation, a consequence which cannot have been intended by Parliament. The judgment explains clearly and concisely all the case law on interference, and then grapples with the re-writing problem in a robust way. It demonstrates the undoubted power of s.3 HRA. And, unless the Supreme Court reverses the outcome, the judgment avoids an unnecessary trip by the claimants to Strasbourg.

David Hart QC is a barrister at 1 Crown Office Row. This article first appeared on the set's human rights blog.