Road closures

09 October 2002 by
Road closures

The problem

Road closures can have a dramatic effect on profitability, particularly on businesses which rely on passing trade or customers arriving by car. In one recent case, 30 local businesses took to the street to protest over a London road closure. It is a sad fact that direct action of this nature may be more effective than reliance on the law.

The law

Councils are not required to consult the public or local landowners before making an order temporarily restricting or prohibiting the use of a road. In addition, there is no obligation to pay compensation to businesses affected unless it lasts for more than 18 months. Councils need only give at least seven days' notice of their intention and even this can be dispensed with if the matter is urgent.

Expert advice

There are three possible remedies, but each has significant limitations. First, although the making of a valid order prevents any claims for damages, it may be possible to pursue a claim on the basis that the order is invalid.

This is most likely to arise where the wording of the order is clearly defective (for example, if it incorrectly identifies the area of road to be closed). In these circumstances the road closure would be an actionable nuisance.

A court judgment quashing the order would have to be obtained and compensation may depend on whether the court considers that any loss would not have been suffered if the order had been correctly drafted in the first place. In this situation, an application to the court has to be made within three months of the date of the order.

Second, the Human Rights Act 1998 raises the possibility of a compensation claim based on the fact that the council has not considered the impact on your human rights when making the order or carrying out the works. The act guarantees the right to peaceful enjoyment of possessions, including property.

Councils are, however, entitled to interfere with the enjoyment of property in certain circumstances. They must demonstrate that the impact on property has been considered and that the interference is proportionate to their objectives.

In most cases, human rights arguments are unlikely to prevent a road closure from occurring. However, compensation may be claimed on the basis that the works could have been undertaken at a less sensitive time, for example, over the weekend, and that the council's failure to consider this fact breaches your human rights.

If a human rights claim were successful you may be entitled to compensation for the additional losses suffered because of the council's "poor" timetabling.

Third, where a claim cannot be sustained in court, it is possible to make a complaint to the local government ombudsman who can investigate complaints about any aspect of a council's performance. Complaints must be made within one year of the event which has given rise to the complaint. There is no charge.

If the ombudsman considers the council's performance to have fallen below generally accepted standards ("maladministration"), he may recommend that the council pays compensation. Although an ombudsman's recommendation is not binding upon a council, it is generally complied with. This may provide a means for obtaining compensation for those involved in protests and others who suffer because roadworks are prolonged. Again, however, it is unlikely to provide a mechanism for preventing the road closure from actually occurring.

Check list

  • Contact the council as soon as you become aware of any proposals for road closure. Confirm the council's plans and ask for a copy of the order.
  • Check that the order authorises the closure which is proposed. Seek legal advice if this appears not to be the case and you wish to contest the closure.
  • Ask the council to take into account the financial impact on your business when considering the order or try to negotiate with the council on timetabling if the order has been made.
  • Provide evidence of the financial impact on your business if you are seeking compensation through legal proceedings or via the ombudsman.

Contacts

Mark Harnett, Fladgate Fielder
Tel: 020 7462 2248

Beware!

A council order will often have the legal effect of closing a road for considerably longer than is actually necessary for the works. Always try to contact the contractors to establish how long in practice the works will last.

In a recent case, a pub owner fearing financial ruin went to considerable trouble and expense to ascertain his legal rights on learning that the council had made a three-month closure order. In fact, the works were completed within three hours of the contractors arriving, and the road reopened to traffic the following day.

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