O'Connor & Anor v Wiltshire County Council

The claimants' Statement of Case, dated 4 May 2005, claimed that it should be read as if certain additional words had been added to the sub-section, which not only would have made it irrelevant whether the highway ever became or was even agreed to become maintainable, but none the less would not have entitled the claimants to compensation in their particular circumstances. The Statement of Case was however amended, without objection, on the second day of the hearing to claim that:

It will be convenient first to consider the Convention rights with which this unfairness is said to be incompatible and secondly, on the assumption of such incompatibility, whether the reading contended for is "possible" within the meaning of the Section.

Accordingly it being agreed, as Lord Nicholls set out in Paragraph 12, that the issue concerned "a provision which falls within the 'ambit' of the right to respect for a person's home guaranteed by article 8" it was also "common ground that article 14 is engaged in the present case." Although the provisions of the "three year clause" may work unfairly, Mr Weir has been unable to rely on any breach of article 14 in such interference with the claimants' rights under articles 1 and 8 as he has identified.

Thus if the claimants are entitled to the civil right of compensation for depreciation in the value of their interest in 55 Braemore Road resulting from noise caused by the use of the highway, they are entitled to a hearing of their claim, rather than having it barred by the "three year clause".

He emphasised that one must look at the substance not the form of the obstacle to access to the courts: