But, as far as public highways are concerned, this only applies to highways that are maintainable at public expense (ie adopted) within the first three years of the highway opening. So, if the highway is not adopted within that three-year period then there can be no compensation claim. The problem faced by some home owners has been that LAs have occasionally delayed adopting highways – sometimes deliberately and sometimes not deliberately – with the result that the home owner gets no blight compensation. A recent case addresses this issue but finds no real solution. What happened in that case was that a developer entered into an s106 agreement with the LA under which the developer agreed to build a new bypass as part of the ‘price’ of its planning permission. The bypass was built but the developer could not get a local landowner to co-operate over drainage works; the end result was that the highway was opened to the public, but the LA refused to adopt it until the necessary drainage works had been completed. A local householder claimed compensation but was told it was not payable because the highway had not been adopted. On the facts, the CA was able to find in favour of the householder because, in this particular case, the LA had also entered into a separate ‘acceleration agreement’ with the developer under which the developer was described as the ‘agent’ of the LA. Because of that technicality, it followed that it was the LA that had built the bypass and thus it had been adopted, which meant that compensation was payable.

It has to be said that this decision has been misinterpreted in some places, because the claimant was held to be entitled to compensation. But, he only won because of the separate ‘acceleration agreement’ and in the absence of such a separate arrangement that makes the developer an ‘agent’, there is no reason to believe that compensation would have been payable. Accordingly, the situation remains unaltered for the vast majority of householders caught in this situation. Given the nature of the problem, it is disappointing that the CA did not take the opportunity to decide whether there was a Human Rights remedy (with HRA 1998 overriding the restrictive wording of Land Compensation Act 1973). O’Connor v Wiltshire CC [2007] EWCA Civ 427. © Practical Lawyer