A man who has seen the value of his home cut in half by the proposed Cirencester bypass scheme, has lost his latest bid to force the department of transport into compensating him.
Two appeal court judges yesterday said they had great sympathy for retired lieutenant-colonel David Owen and his wife Barbara but there was nothing they could do to help.
Lord Justice Phillips commented: 'Lieutenant-Colonel Owen has said there is a gap in the law. It may well be that there is such a gap in English law but if so there is no way that this court can fill it.'
The former soldier now plans to go the European Court of Human Rights.
Outside court Lieutenant Colonel Owen, who represented himself and his wife, said the bypass scheme had reduced the value of his home at The Whiteway, Cirencester, from £360,000 to about half that sum.
'Our house has devalued by 50 per cent and we have not received any compensation. And the costs of the legal action must run into tens of thousands. I think that it's criminal that we should be in this position and we are not the only ones. People up and down the country are in similar positions.'
Over the past few years the Owens have fought their case through a myriad of high court, court of appeal and county court hearings, but today's ruling removes their last hope of winning compensation through the English courts.
Colonel Owen had urged the appeal court to overturn a decision of Cheltenham County Court judge, John McNaught, striking out the couple's latest claim against the DoT.
Judge McNaught had ruled that the only legal avenue left open to the Owens was to sue the DoT under the Land Compensation Act, and that could only be of help to them a year after the bypass - which has yet to be completed - had been opened.
Outlining the case's tortuous history, Lord Justice Kennedy said: 'As long ago as 1990 Lieutenant Colonel and Mrs Owen were looking for a house in which to live in the Cirencester area and in the course of their search they discovered the particular house which they thought would meet their needs.
'Unfortunately there was a proposed bypass not very far away. They knew something of it because the proposal was reflected on plans which were then in existence.
'But they (the plans) were in very broad terms and so they decided to go ahead with the purchase.
'They acquired this house and spent a considerable amount of money making it suitable to their needs. To their horror they discovered the bypass was going to be far more substantial than at first was envisaged. It was going to have a very adverse effect on the house which was the object of their dreams.
'They applied to the secretary of state (for transport) to acquire the premises. He refused to do so on the basisthey had bought the premises with knowledge of the bypass.
'That original decision was challenged successfully. It had to go back to the secretary of state for reconsideration.
'During the course of that hearing things had been said which indicated many people had a good deal of sympathy with Colonel and Mrs Owen.
'However the secretary of state came to the same conclusion (after reconsideration) and the case then came before Mr Justice Popplewell who upheld the decision of the secretary of state.
'The matter came back to the court of appeal but the court refused leave to appeal.
'In December 1995 Lieutenant Colonel and Mrs Owen commenced this action.
'Lieutenant Colonel Owen says he and his wife have suffered very seriously as a result of the actions of the secretary of state in refusing to acquire the property and he will have to wait until the a year after the bypass is completed, and so may have to wait until the year 2000, to receive compensation.
'He says there ought to be some way he can recover compensation as a matter of private law.
'But I am wholly unable to find any way in which, as a matter of private law, this action can be pursued.' The Owens had their appeal against Judge McNought's decision dismissed.