[2023] UKUT 214 (LC)

Section 1 of the Act sets out the right to compensation as follows:

“1.

-Right to compensation.

(1)

Where the value of an interest in land is depreciated by physical factors caused by the use of public works, then, if -

(a)

the interest qualifies for compensation under this Part of this Act; and

(b)

the person entitled to the interest makes a claim after the time provided by and otherwise in accordance with this Part of this Act,

compensation for that depreciation shall, subject to the provisions of this Part of this Act, be payable by the responsible authority to the person making the claim (hereinafter referred to as “the claimant”).

(2)

The physical factors mentioned in subsection (1) above are noise, vibration, smell, fumes, smoke and artificial lighting and the discharge on to the land in respect of which the claim is made of any solid or liquid substance.

(3)

The public works mentioned in subsection (1) above are –

(a)

any highway;

…

(4)

The responsible authority mentioned in subsection (1) above is, in relation to a highway, the appropriate highway authority…

(5)

…the source of the physical factors must be situated on or in the public works the use of which is alleged to be their cause.

…

(9)

Subject to section 9 below, “the relevant date” in this part of the Act means –

(a)

in relation to a claim in respect of a highway, the date on which it was first open to public traffic.”

S.9, referred to in s. 1(9), covers the situation where a highway already open to public traffic has been altered.

Section 2 sets out the types of interest which qualify for compensation. It is not in dispute that the claimant had a qualifying interest at the relevant date. Section 3(2) deals with the date for making claims and s.4 deals with the assessment of compensation as follows:

“3.

- Claims

…

(2)

Subject to the provisions of this section and of sections 12 and 14 below, no claim shall be made before the expiration of twelve months from the relevant date; and the day next following the expiration of the said twelve months is in this Part of this Act referred to as “the first claim day”.

…

4.

– Assessment of compensation: general provisions

(1)

The compensation payable on any claim shall be assessed by reference to prices current on the first claim day.

(2)

In assessing depreciation due to the physical factors caused by the use of any public works, account shall be taken of the use of those works as it exists on the first claim day and of any intensification that may then be reasonably expected of the use of those works in the state in which they are on that date.

…

(4)

The value of the interest in respect of which the claim is made shall be assessed—

…

(b)

subject to section 5 below, in accordance with rules (2) to (4) of the rules set out in section 5 of the Land Compensation Act 1961;

…”

Of the rules referred to in section 4(4)(b) it is only rule (2) in section 5 of the Land Compensation Act 1961 which is relevant in this case:

“(2)

The value of land shall … be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise…”