Rob Weir QC and Christopher Stone in important case about the right to peaceful enjoyment of possessions (Article 1 Protocol 1)

The Court of Appeal has handed down its Judgment in Thomas & Others v Bridgend County Borough Council [2011] EWCA Civ 862, in which Robert Weir QC and Christopher Stone acted for the successful claimants. The preliminary issue decided by the Court was whether the claimants could rely upon Article 1 of Protocol 1 to the European Convention on Human Rights (“A1P1”) to interpret section 19(3) of the Land Compensation Act 1973 in such a way that it provided them with a right to claim compensation for the noise caused by use of a road built near to their houses.

Section 19(3) restricted the right to claim compensation – no claim could be brought if a road was open to the public, but not adopted by a highway authority for three years from the date on which it was first opened. Evidence was presented to the Court of numerous instances in which highway authorities and road developers had been able to avoid liability to pay compensation through relying on section 19(3).

The Judgment establishes categorically for the first time that diminution in the value of a person’s property (in this case the claimants’ houses) is sufficient to amount to an interference with the peaceful enjoyment of his or her possessions, such that A1P1 is engaged. The Court rejected the defendant’s arguments that any interference had to be “direct and serious” (such as to amount to a partial taking of property) or unlawful in order to amount to a breach of A1P1.

Having found that there was interference with the claimant’s rights, the Court addressed whether the terms of section 19(3) struck a fair balance between the general interests of the public and individual claimants. The Court found that the operation of section 19(3) was “truly bizarre” as it rewarded inefficient road-builders who could avoid liability; it undermined the fair balance that Parliament had intended the Land Compensation Act to achieve.

Regarding remedy, the Court relied upon section 3 of the Human Rights Act 1998 to interpret the wording of section 19(3) in the claimants’ favour. It held this to be in accordance with the grain of the Land Compensation Act 1973 and rejected the defendant’s arguments on practicality. The Judgment can be viewed here.

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