Compensation – Statutory wayleave – Injurious affection – Para 7 of Schedule 4 to Electricity Act 1989 – Necessary wayleave granted to compensating authority for retention of electricity line running over claimants’ property – Claimants seeking compensation for injurious affection – Whether compensation to be awarded for effects caused not only by line over claimant’s land but also by pylon on adjoining land – Whether para 7 confined to compensation only for matters specifically attributable to grant of wayleave – Compensation awarded accordingly
The claimants applied for a determination of the compensation payable to them for injurious affection as a result of the grant to the compensating authority, in September 2010, of a necessary wayleave under para 6 of Schedule 4 to the Electricity Act 1989 for the retention of an electricity line above the claimants’ property. The line impinged on the airspace above the claimants’ back garden and was supported by a pylon position on adjacent land, close to the rear of the claimants’ property. That apparatus had been in place since 1951. The claimants had owned and lived in their property since 1981. They complained of mess from the droppings of birds sitting on the line, noise from the pylon and cables and the potential damaging effects on their health from electromagnetic fields associated with the pylons and overhead lines.
An issue arose as to whether the compensation payable to the claimants under para 7 of Schedule 4 to the 1989 Act could include not only compensation for the effects of the part of the line that passed over their property but also a sum in respect of the effects of the compensating authority’s apparatus, including the pylon, on adjacent land. The claimants contended that such compensation was payable by the operation of section 44 of the Land Compensation Act 1973, either directly or indirectly through the principle of equivalence, so far as it provided that compensation for land taken for the purpose of works to be carried out partly on the land and partly elsewhere should be assessed by reference to the whole of the works. They also relied on the provisions of the Lands Clauses Consolidation Act 1845 regarding compensation for injurious affection for the taking of land. It was agreed that the appropriate compensation figure was £14,000 if the 1973 Act did apply and £4,000 if it did not.
Held: The claim was determined accordingly.
(1) The acquisition of a wayleave under para 6 of Schedule 4 to the 1989 Act did not amount to an acquisition of land or of any right over, or interest in, land. The creation or acquisition of rights over land fell within Schedule 3. Schedule 4 provided a different avenue for the licence holder by enabling it to acquire a consent to do what it needed to do on, under or over the land. A wayleave was merely a consent to do certain specified things on the land to which it related and, although it created an exclusive right of occupation, it did not give rise to an easement or any form of interest in, or right over, land. A necessary wayleave granted under para 6 was a right that parliament had provided to enable statutory undertakers to enter on privately-owned land and install, maintain and repair the services for which they were responsible. It was nothing more or less than a statutory licence or consent and did not create any property interest or right: Newcastle-under-Lyme Corporation v Woolstanton Ltd [1947] Ch 427; (1947) 149 EG 74 applied.
(2) The 1989 Act drew a clear distinction between the provisions of Schedule 3, concerning the compulsory acquisition of land and rights, and those of Schedule 4, for the grant of wayleaves. In setting out the procedures for assessing compensation for the compulsory acquisition of land or rights, Schedule 3 expressly incorporated the main elements of the statutory code for the assessment of compensation for compulsory purchase. Those provisions had no parallel in Schedule 4. That was not an oversight and it was not possible to read such provisions into para 7(1) of Schedule 4 when the legislature had deliberately not included them. The only compensation available for the grant of a wayleave under the 1989 Act was “compensation in respect of the grant”, under para 7(1). Those words confined the availability of compensation to loss that was specifically attributable to the grant of the wayleave. They did not create any entitlement to compensation for the effects of apparatus installed by the licence holder on other land, or for the acquisition of any right beyond that contained in the terms of the grant itself. The general principles of compensation applied to a claim made under para 7: Turris Investments Ltd v Central Electricity Generating Board [1981] 1 EGLR 186; (1981) 258 EG 1303, Macleod v National Grid Co plc [1998] 2 EGLR 217, Welford v EDF Energy Networks (LPN) plc [2006] 3 EGLR 165 (LC); [2007] EWCA Civ 293; [2007] 2 P&CR 15; [2007] 2 EGLR 1; [2007] 24 EG 170 (CA) and Arnold White Estates Ltd v National Grid Electricity Transmission plc [2013] UKUT 005 (LC); [2013] PLSCS 85 applied.
(3) The grant of a wayleave did not involve “land” being “acquired or taken” within section 44 of the 1973 Act. The wayleave granted to the compensating authority authorised what would otherwise have been an actionable trespass in the airspace above the claimants’ property. Trespass into airspace did not constitute an expropriation of land. It did not involve the acquisition or taking of land from the person who owned it and did not, therefore, engage the provisions of section 44 of the 1973 Act as to compensation for injurious affection. Likewise, para 7 of Schedule 4 was not concerned with a relevant “purchase or taking” of “lands” within the meaning of the 1845 Act, since a wayleave did not create any interest in land.
(4) The principle of equivalence, requiring that a landowner should be paid neither less nor more than his loss, did not assist the claimants in the instant case. The principle that a claimant should receive compensation for losses fairly attributable to the taking of his land, but not any greater amount, applied to the assessment of compensation under the statutory scheme and did not extend the scope of compensation available under para 7(1) of Schedule 4 to the 1989 Act beyond the parameters set by that provision: Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111; [1995] 1 EGLR 19; [1995] 19 EG 147 applied. The compensation properly recoverable under para 7(1) remained “compensation in respect of the grant”. The principle of equivalence did not generate a right to be compensated for losses that did not flow from the grant of the necessary wayleave itself. It did not increase the compensation available under para 7(1) to a level that could only be attained if section 44 of the 1973 Act were engaged, or entitle the claimants to compensation for injurious affection attributable to the presence and use of the compensating authority’s apparatus on the land adjacent to the reference property. Such compensation could not be paid in a case where no land had been taken from the claimants, no interest in land created, and no property rights acquired.
(5) Per curiam: Section 44 of the 1973 Act would not have applied even if, contrary to the above, it were to be read into para 7 of Schedule 4 to the 1989 Act. So far as it referred to works that “are to be situated” partly on a claimant’s land and partly elsewhere, it looked to a future event and not to an existing state of affairs. It did not convey the idea of keeping in place of works that were already in place at the time of the grant of the wayleave. Further, the provisions of section 44 did not bite in a case where the works themselves had been carried out and completed before the 1973 Act came into force. It was impossible to construe the statutory language as having that retrospective effect. Moreover, section 44 provided compensation in respect of works that were to be situated at least “partly” on land owned by the claimant and subject to the acquisition or taking. It did not apply where there were no relevant works situated, even in part, on the claimants’ property.
Stephen Tromans QC and Richard Wald (instructed by Hugh James Solicitors) appeared for the claimants; David Elvin QC (instructed by Squire Sanders (UK) LLP) appeared for the compensating authority.
Sally Dobson, barrister
