Compensation — Compulsory Purchase Act 1965 — McCarthy Rules — Petrol filling station — Obstruction of access roads — Whether compensation payable under section 10 — Effect of stopping-up orders — Whether obstructions sufficiently proximate
The claimants were the owner and lessee
respectively of a petrol filling station that stood at the junction of the A11
trunk road and the A505 to Royston. Until a road improvement scheme, access was
gained from the A505 and by both northbound and southbound traffic on the A11.
As part of the road improvement scheme, a new section of dual carriageway,
forming part of the A11, and replacing the section on which stood the filling
station, was constructed from a point 1km to the south to 1km to the north of
the station; the A505 outside the filling station was closed. There was then no
direct access from the new section of the A11, and the old section became a
service road. Orders were made under section 14 of the Highways Act 1980 to
stop up the existing highways and construct the new roads. In consequence of
the fall in business, the filling station closed in January 1996. Although the
works were carried out under a compulsory purchase order, no land was acquired
from the claimants. The claimants claimed compensation for injurious affection
under section 10 of the Compulsory Purchase Act 1965, relying on the
obstructions of the A505 and that of the A11 where the new carriageway joined
1km to the north and south respectively of the filling station. The Lands
Tribunal ordered a hearing of a preliminary issue as to liability.
obstruction of the A505 founded a claim to compensation under section 10 of the
Compulsory Purchase Act 1965. For the purposes of section 1(2) and 10 of the
1965 Act, ‘the special Act’ was the Highways Act 1980, the slip- and side-road
orders made under it, and the compulsory purchase order. ‘The works’, for the
purposes of section 10, were those authorised to be executed under the slip-
and side-roads orders and the 1980 Act itself on the land acquired under the
compulsory purchase order. Under the side-roads order rights of highway shown
as being stopped up were extinguished when, but not before, the works, or
physical steps taken in connection with the works, prevented passage along
them; Jolliffe v Exeter Corporation [1967] 1 WLR 993
distinguished. The claimants’ land was injuriously affected, if at all, only by
the execution of those parts of the works that obstructed lengths of highway
providing access to the land. Loss arising from the use of the new road system
was too remote to found a claim because it was not properly attributable to
such obstruction. No claim for compensation could be founded on the obstruction
of the A11 to the south, which was not on land included in the compulsory
purchase order, or on the obstructions to other roads and the A11 to the north,
where the access was insufficiently direct and proximate. The obstruction of
the A505 adjacent to the claimants’ land was sufficiently proximate.
The following cases are
referred to in this report.
6, 8, 10 & 12 Elm Avenue, New Milton, Re,
ex parte New Forest District Council [1984] 1 WLR
1398; [1984] 3 All ER 632; (1984) 48 P&CR 381; 83 LGR 87, Ch
Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99; [1974] 2 WLR 71;
[1974] 1 All ER 201; (1973) 27 P&CR 122; 72 LGR 147, HL
Beckett v Midland
Railway (1867) LR 3 CP 82
Brown v Heathlands
Mental Health NHS Trust [1996] 1 All ER 133, Ch
Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas 259
Chamberlain v West
End of London & Crystal Palace Railway Co (1862) 2 B&S 605
Clift v Welsh
Office [1998] 4 All ER 852; (1998) 76 P&CR D46; [1998] 38 RVR 303, CA
Corporation of Yarmouth v Simmons (1877) 10 ChD 518
Flanagan v Stoke-on-Trent
City Council [1982] 1 EGLR 205; [1982] EGD 720; (1982) 262 EG 1201; [1982] JPL 520; 23 RVR 136, LT
Fletcher v Birkenhead
Corporation [1907] 1 KB 205
Ford v Metropolitan
District Railway (1886) 17 QBD 12
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171
Jolliffe v Exeter
Corporation [1967] 1 WLR 993; [1967] 2 All ER 1099; (1967) 65 LGR 401; 18
P&CR 343, CA
Leake v Wirral
Metropolitan Borough Council; Argyle Motors (Birkenhead) Ltd v Same
[1977] 2 EGLR 171; (1977) 244 EG 725, LT
Metropolitan Board of Works v Howard (1889) 5 TLR 732
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243; 31 LT 182, HL
North Tyneside Metropolitan Borough Council v Allsop [1991] RVR 209, QB
R v London
Dock Co (1836) 5 A&E 163
Rathbone v Bundock
[1962] 2 QB 260; [1962] 2 WLR 1066; [1962] 2 All ER 257, DC
Ricket v Metropolitan
Railway Co (1867) LR 2 HL 175
Simeon, In re; Isle
of Wight Rural District Council, In re [1937] Ch 525
Wildtree Hotels Ltd v Harrow London Borough Council [1998] 3 WLR 1318; [1998] 3
All ER 638; [1998] 3 EGLR 133; [1998] 38 RVR 288; [1999] JPL 136, CA
Wilkes v Hungerford
Market Co (1835) 2 Bing NC 281; 2 Scott 446; 1 Hodg 281; 5 LJCP 23
Robin Purchas QC (instructed by Mills & Reeve,
of Norwich) appeared for the claimants; Michael Barnes QC and Eian Caws
(instructed by the Treasury Solicitor) represented the compensating authority.
Giving the tribunal’s decision, MR GEORGE BARTLETT QC, president,
said:
Introduction
This is the determination of a preliminary issue
in a reference under which the claimants seek compensation in respect of the
injurious affection of land at Abington in Cambridgeshire. On the land there
was, until it was closed, a petrol filling station known as Bourne Bridge
Service Station. The claimant Mr Wagstaff owns the freehold, and the claimant
BP Oil (UK) Ltd has a lease of the land. The service station stood at the busy
junction of the A11 trunk road, part of the main route from London to East
Anglia via the M11 motorway, and the A505 to Royston. It was on the northern
side of the A505 and on the western side of the A11. Access to it could be
gained from the A505 and by both northbound and southbound traffic on the A11.
Because of its location it had a very large throughput of petrol.
As part of a project of road improvement (which I
will describe later) a new section of dual carriageway, forming part of the A11
and replacing the section on which the service station stood, was constructed
to the west of the service station, and the A505 outside the service station
was closed. The new road was opened to traffic on 14
was no direct access from it to the service station, and the section of
replaced A11 became a service road. As a result, the trade of the service station
fell dramatically and on 5 January 1996 it was closed. It is agreed that the
land is less valuable today than it was at the commencement of the project.
In order to carry out the project, the Secretary
of State for Transport made a series of orders under the Highways Act 1980. One
of these was the A11 trunk road (A505 junction to Four Went Ways Improvement)
Compulsory Purchase Order (E No 3) 1993, which provided for the acquisition of
land needed for the project. None of the service-station land was included in
it, however, and no land has been acquired from either of the claimants. The
claim is for compensation for injurious affection under section 10 of the
Compulsory Purchase Act 1965 in respect of the reduction in the value of the
land caused by the project.
The preliminary issue that now arises for
determination has been formulated as follows:
Whether the interest of the claimant has been
injuriously affected by the execution of works consisting of the construction
by the Department of Transport of the new A11 or any part thereof pursuant to
their powers under the Highways Act 1980 and the A11 (A505 Junction to Four
Went Ways Improvement ) Compulsory Purchase Order (E No 3) 1993 within the
meaning of the Compulsory Purchase Act 1965, Section 10.
It was accepted by the parties, however, that the
precise formulation of the question was not important, and that what falls to
be decided is whether in the circumstances that have occurred the claimants
have a valid claim for compensation under section 10 of the 1965 Act.
Evidence
For the claimants Mr Robin Purchas QC called Mr PJ
Blackford BSc ARICS, a partner in
Rapleys, who heads the roadside/motor trade department in his firm. He
described the physical circumstances before the works were carried out, the
works themselves and their effect on access to the service station and on its
business. He also gave evidence about another service station elsewhere in the
country where compensation had been paid by the Highways Agency. I received
this evidence de bene esse. Having done so, I am satisfied that it has
no relevance to the question that I have to consider and I propose to disregard
it. For the acquiring authority Mr Michael Barnes QC called Mr PN Stanton BEng
MICE MIHT, who was appointed
project manager for the A11 Stumps Cross to Four Went Ways scheme in May 1995,
near to the end of its construction period. He described the scheme and the
orders that were made to implement it. No significant differences emerged from
the evidence of the two witnesses, and I summarise the relevant facts below.
The project
The project was somewhat complex. It was part of a
wider scheme of road improvement known as the ‘A11 Stump Cross to Four Went
Ways Improvement’, the principal element of which was the replacement of the
existing A11 single carriageway from the M11 motorway spur at Stump Cross
northwards for a distance of rather more than 6km. For the purposes of the
statutory orders that were made to empower it this wider scheme was divided
into two sections — described as ‘Stump Cross to A505 junction improvement’ and
‘A505 junction to Four Went Ways improvement’. The service station was within
the latter section, and it is this section to which the parties referred as the
project. The new dual carriageway was to be built substantially on the line of
the old road to a point about 1km south of the service station where it
diverged to the west before returning to the line of the old road about 1.5km
to the north of the service station. Past the service station the new A11 was
in cutting. This severed the A505, which was then linked from the west to the
new road by slip roads to and from the north, the southbound slip road from the
new A11 being carried over the new A11 on a bridge.
About 1km to the north of the service station was
the Four Went Ways roundabout where the A11 was joined by the A1307 from
Cambridge (to the north-west) and the A604 from Colchester (to the south-east).
In place of this a new interchange was provided immediately to the north, the
A1307 and the A604 meeting at a roundabout above the A11 to which it was linked
by slip roads.
Besides the construction of new lengths of
carriageway, the project thus involved the alteration of parts of the old A11,
the A505, the A1307 and the A604 and the closure of parts of each of those
roads. The areas of land over which the closed sections ran were for the most
part either used for the construction of one of the new carriageways (as where
the A505 crossed the line of the new A11) or were landscaped to mitigate their
adverse effects (for example parts of the old A11, A1307 and A604 in the
vicinity of the Four Went Ways roundabout). The carriageway of the short piece
of A505 between the old A11 and the new road was taken up and planted and two
new accesses were provided across it, one of them to the service-station land.
The old A11, between the point to the south at which the new carriageway
diverged and the old Four Went Ways roundabout, became a service road, and
access to it from each of the major roads was tortuous.
Highways Act 1980
In order to give himself the necessary powers to
implement the wider scheme, the Secretary of State for Transport made some 10
orders under the Highways Act 1980. There are a number of provisions in the Act
of relevance to these orders and to the questions that fall to be decided in
the present case. In Part II of the Act, which relates to trunk roads,
classified roads, metropolitan roads and special roads, section 10 empowers the
Secretary of State by order to direct that a proposed highway should become a
trunk road. Procedural provisions are contained in Schedule 1 to the Act, which
provide for the publication of a draft order and the holding of an inquiry into
objections to it before the order is made, and it is under this procedure, as I
understand it, that objections to a proposed new trunk road are considered.
Under section 14(1)(a) provision may be made by order in relation to a
trunk road or a classified road for the purpose of authorising the highway
authority for the road:
(i) to stop up, divert, improve, raise, lower or
otherwise alter a highway that crosses or enters the route of the road or is or
will be otherwise affected by the construction or improvement of the road;
(ii) to construct a new highway for purposes
concerned with any such alteration as aforesaid or for any other purpose
connected with the road or its construction…
The procedural provisions of Schedule 1 apply to
an order made under this section in the same way as they apply to an order
under section 10; and the proceedings may be taken concurrently with each other
(Schedule 1 para 20). Section 14(6) provides:
No order under this section authorising the
stopping-up of a highway shall be made or confirmed by the Minister unless he
is satisfied that another reasonably convenient route is available or will be
provided before the highway is stopped up.
In Part III of the Act section 24 contains the
general power of the Secretary of State to construct new highways. Part V
contains a wide range of provisions relating to the improvement of highways. It
is to be noted that they include the power to widen highways, to divide
carriageways, to provide barriers and to alter the level of highways. It is
also to be noted that, while a number of sections contain provisions for
compensation where a person sustains damage by reason of the works authorised
(for instance, section 77, which relates to the alteration of the level of
highways), many of the improvements authorised do not give rise to compensation
where damage is caused (for example the dualling of carriageways under section
64). Section 116 gives power to a magistrates’ court to authorise the
stopping-up of a highway if it appears to them that it is unnecessary or can be
diverted so as to make it nearer or more commodious to the public.
Section 23 (in Part III) provides that if works
that the authority have power to execute under Part V are executed pursuant to
an order under section 14, the Part
apply. The corollary of this provision is that where works are executed under
section 14 that could not have been executed under Part V, there is no
compensation provision in the Act that applies to them. Thus, there is no
provision for compensation in respect of the construction of a new highway or
the stopping-up of an existing highway.
Section 125(1) provides that an order under
section 14 may authorise the authority to stop up a private means of access to
premises adjoining or adjacent to a proposed road or forming the site of works
authorised by the order or a previous order. The authority may also be
authorised to provide a new means of access to such premises. Under subsection
(3) no stopping-up order is, however, to be made unless the Secretary of State
is satisfied either that no access is reasonably required or that another
reasonably convenient means of access is available or will be provided in
pursuance of the order. Section 126(2) provides that, where a means of access
to premises is stopped up in pursuance of an order made under section 14 by
virtue of section 125, compensation may be recovered by any person who suffers
damage by the depreciation of an interest in the premises or through
disturbance; and subsection (4) provides that a person entitled to compensation
under subsection (2) is not entitled to recover compensation in respect of the
same matter under any other enactment.
Powers of acquisition are contained in Part XII of
the Act. In particular, the Secretary of State has power under section 239 to
acquire compulsorily land required for the construction of a trunk road or for
works authorised by an order under section 14. He also has power under section
246 to acquire land compulsorily for the purpose of mitigating any adverse
effect that the construction or improvement of a highway may have. By section
247 the
acquisition of land under these provisions, and section 257 provides that,
where such a CPO is made for the purpose of enabling an order or orders to
which Schedule 1 applies to be implemented, the proceedings under the 1981 Act
and may be taken concurrently with those under Schedule 1.
Orders
Six of the 10 orders that the Secretary of State
for Transport made under the 1980 Act related to the Stump Cross section of the
wider scheme, and the other four related to the project itself, the section
that affected the service station. These four orders were: the A11 Trunk Road
(A505 Junction to Four Went Ways Improvement and Slip Roads) Order 1993; the
A11 (A505 Junction to Four Went Ways Improvement Side Roads) Order 1993; the
A11 Trunk Road (A505 Junction to Four Went Ways Improvement) Compulsory
Purchase Order 1993; and the A11 Trunk Road (A505 Junction to Four Went Ways
Detrunking) Order 1993. Of these orders the side-roads order and the compulsory
purchase order are before me but the improvement and slip-roads order and the
detrunking order are not.
The side-roads order, which came into force on
23
the 1980 Act. Article 1 authorised the Secretary of State in relation to the
existing A11 and the new sections of trunk road provided for in the
improvements and slip-roads order:
(1) to carry out the improvement of highways,
(2) to stop up highways,
(3) to construct new highways,
(4) to stop up private means of access to
premises,
(5) to provide new means of access to premises,
as indicated in the schedules and on the plans
attached to the order. The plans identify by notation each of these five
categories and also the route of the new trunk road. Article 3 of the order
said, with evident reference to section 14(6) of the 1980 Act:
It is hereby declared that the Secretary of State
is satisfied —
(1) as respects each length of highway, the
stopping-up of which is authorised by this Order, that another reasonably
convenient route is available or will be provided before that highway is
stopped up…
Article 8(2)(vi) of the side-roads order defines
‘the new trunk roads’ as the trunk roads to be constructed in pursuance of the
improvement and slip-roads order, and I infer that that order related to the
whole of the new A11 and its slip roads in the A505 to Four Went Ways section
of the wider scheme. It would appear, therefore, that the improvement and
slip-roads order and the side-roads order covered all the works for the new
2.5km stretch of dual carriageway and junctions and the works on the associated
parts of the classified roads, with the exception of the minor works of tying
in the new section of road to the old road at the points, north and south,
where it diverged from and rejoined it. These minor works, as I understand it,
were carried out under the general power of improvement contained in section 62
of the 1980 Act.
The CPO provided for the purchase of:
(a) the land described in Schedule 1 to the Order
for the purpose of:–
(i) the construction of new trunk roads in the
Parishes of Pampisford, Little Abington and Babraham in the District of South
Cambridgeshire in the County of Cambridgeshire in pursuance of the A11 Trunk
Road (A505 Junction to Four Went Ways Improvement and Slip Roads) Order 1993
(ii) the construction and improvement of highways
and the provision of new means of access to premises in the said District and
County in pursuance of the
(iii) the improvement of the A11 Trunk Road in
the said District and County, and
(iv) use by the Secretary of State in connection
with such construction and improvement of highways and the execution of other
works mentioned above;
(b) the land described in Schedule 2 to the Order
for the purpose of mitigating any adverse effect which the existence or use of
the highways proposed to be constructed or improved by him as mentioned above
will have on their surroundings.
The Schedule 1 land (coloured pink) covered most,
but not all, of the land required for the works of construction and
improvement. In particular, most of the A505 where it crossed the line of the
new A11 was included in the pink land and, to the south, where the new road
diverged from the old one, all the land required outside the bounds of the
existing highway was similarly included. To the north, all the land required
for the new interchange was also shown pink, including parts of the old A11
trunk road and the A1307, while other parts of the old A11, the A1307 and the
A604 were shown as Schedule 2 land (land for works of mitigation, coloured
yellow on the plan).
There were objections to the draft orders that the
Secretary of State made under these provisions and, in accordance with the
provisions of section 257 there were concurrent proceedings to deal with the
orders. A public inquiry was held in November 1991 and a decision letter was
issued on 23 March 1993 in relation to all 10 of them. One further matter is to
be noted. The side-roads order was signed on 8 June 1993, and Article 9 of the
order provided that it should come into force on 23
purchase order was dated 24 June 1993.
Section 68 rules
Section 10 of the 1965 Act provides as follows:
(1) If any person claims compensation in respect
of any land, or any interest in land, which has been taken for or injuriously
affected by the execution of the works, and for which the acquiring authority
have not made satisfaction under the provisions of this Act, or of the special
Act, any dispute arising in relation to the compensation shall be referred to
and determined by the Lands Tribunal.
(2) This section shall be construed as affording
in all cases a right to compensation for injurious affection to land which is
the same as the right which section 68 of the Lands Clauses Consolidation Act
1845 has been construed as affording in cases where the amount claimed exceeds
fifty pounds.
As Lord Wilberforce pointed out in Argyle
Motors (Birkenhead) Ltd
at p129F, in spite of its apparent form, section 68 is, by the force of
judicial interpretation, a compensation section and not merely procedural. A
series of judicial decisions of high authority in the three decades that
followed the passing of the Act established the limits to the damage or loss
for which compensation could be claimed under the section. These were stated
concisely as a set of four rules in the first edition of Cripps on
Compensation (1881) and have since been restated in slightly different ways
in the Encyclopedia of Compulsory Purchase and elsewhere. For present
purposes they can be stated as follows:
(1) The damage or loss must result from an act
made lawful by the special Act.
(2) The damage or loss must be such as would be
actionable but for statutory powers.
(3) The damage or loss must arise from an act of
physical interference with the land or with a right enjoyed with it and it must
consist in the diminution of the value of the land.
(4) The damage or loss must be occasioned by the
execution of the authorised works and not by their use.
It is to be noted that under section 1(1) of the
1965 Act, Part I of the Act (in which section 10 appears) applies to any
compulsory purchase to which Part II of the Acquisition of Land Act 1981 or
Schedule 21 to that Act applies. Thus, it does not apply where land is acquired
by agreement, notwithstanding that statutory powers may be exercised in
relation to that land.
Issues
For the claimants, Mr Robin Purchas QC submitted
that, on the facts, all four of the section 68 requirements were satisfied.
Land was acquired, and the works were constructed across the A505 immediately
to the west of the relevant land and across the A11 to the north, the A1307 to
the west and the former A604 to the east of the Four Went Ways roundabout. The
works of improvement to the south on the A11 obstructing the A11 to northbound
traffic were part and parcel of the overall works so authorised. They would not
have been lawful without the execution of the other works pursuant to the 1980
Act. The effect of the works was to prevent through-traffic passing the
claimants’ land and to place severe restrictions on access to it. He referred
to the following cases in which compensation was held to be payable or
potentially payable for injurious affection consisting in the obstruction of a
public or private right of access to the claimant’s land: Chamberlain v West
End of London & Crystal Palace Railway Co (1862) 2 B&S 605; Beckett
v Midland Railway (1867) LR 3 CP 82; Metropolitan Board of Works
v McCarthy (1874) LR 7 HL 243; Caledonian Railway Co v Walker’s
Trustees (1882) 7 App Cas 259; Ford v Metropolitan District
Railway (1886) 17 QBD 12; Metropolitan Board of Works v Howard (1889)
5 TLR 732; Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975]
AC 99; Leake v Wirral Metropolitan Borough Council [1977] 2 EGLR
171; Flanagan v Stoke-on-Trent City Council (1982) 262 EG 1201*; Wildtree
Hotels Ltd v Harrow London Borough Council [1998] 3 All ER 638†; and
Clift v Welsh Office [1998] 4 All ER 852. He also referred to Ricket
v Metropolitan Railway Co (1867) LR 2 HL 175, in which a temporary
obstruction of access to a public house causing a loss of profit to the owner
was held not to give an entitlement to compensation. On the fourth of the
section 68 rules (damage must be due to the execution of the works and not
their use) he referred to the leading case, Hammersmith and City Railway Co
v Brand (1869) LR 4 HL 171, and to other cases that I will mention
later.
*Editor’s note: Also reported at [1982] 1 EGLR
205
†Editor’s note: Also reported at [1998] 3 EGLR
133
The principle that compensation is payable where
the execution of works authorised by the special Act obstructs a public or
private access to the claimant’s land and causes the value of the land to be
diminished is best illustrated by the two leading cases — McCarthy and Caledonian
Railway Co v Walker’s Trustees. In McCarthy the claimant
carried on business as a carrier and contractor supplying builders with
building materials and as a dealer in sand and ballast. His premises were
located adjacent to Whitefriars Dock, a public dock through which access to the
premises could be obtained from the River Thames. Under the Thames Embankment
Acts, Victoria Embankment was built along the foreshore of the river, and
Whitefriars Dock was thus permanently stopped up and destroyed. As a result of
losing their access from the river the claimant’s premises were diminished in
value. The House of Lords held that compensation was payable under section 68
in respect of this loss.
In Caledonian Railway Co v Walker’s
Trustees the claimants were the proprietors of a cotton mill in Glasgow
some 90 yards to the west of Eglinton Street, a main road. Direct access to the
mill from Eglinton Street could be obtained by means of each of two roads,
Canal Street and Victoria Street. Under the Caledonian Railway (Gordon Street
(Glasgow) Station) Act 1873 the railway company constructed a railway along the
west side of Eglinton Street and across Canal Street and Victoria Street, which
were blocked up, and the direct access to the mill from Eglinton Street was
lost. A new street was built with a bridge across the railway to connect
Eglinton Street to the roads to the west of the railway, but the access that
this provided to the mill was longer and the gradients more steep, and the
value of the mill was diminished. The House of Lords, following McCarthy,
held that the claimant was entitled to compensation.
For the acquiring authority, Mr Michael Barnes QC
did not question the principle established in McCarthy and Caledonian
Railway Co v Walker’s Trustees and applied in others of the cases
referred to, but he submitted that in the present case there had been no
injurious affection
nor the stopping-up of the A505 (or, I think he would add, any of the other
roads) could give rise to an entitlement to compensation under section 10 of
the 1965 Act. He analysed separately the construction of the new road and the stopping‑up
of the existing highway. Construction of the new road would not, he said, have
been an actionable wrong to the claimants if it had been carried out otherwise
than under a statutory power; and in any event the loss suffered by the
claimants arose not from its construction but from its use by traffic that
would otherwise have used the old A11. Thus neither the second nor the fourth
section 68 rules were satisfied.
As far as the stopping-up was concerned, Mr Barnes
said that it failed to satisfy three of the four rules. First, he said, no
compulsory powers to acquire land were needed to effect the stopping-up since
this was a purely legal and administrative act, which extinguished highway
rights and required on the part of the highway authority no physical action and
thus no rights in relation to land. Second, the damage suffered by the
claimants did not arise from the execution of any works but from the legal and
administrative act of stopping-up. He relied on Jolliffe v Exeter
Corporation [1967] 1 WLR 993, the facts of which, he said, were remarkably
similar to those in the present case. Third, since stopping-up is a legal and
administrative act, it was not one that could be carried out at all without
statutory authority, so that it was impossible to say that if carried out
without statutory authority it would be an actionable wrong.
Mr Barnes’ submissions appear to me to depend on
the following propositions:
(a) In this case the stopping-up of the highways
was a legal and administrative step distinct from the execution of the works,
and it occurred prior to the construction of the new road across the existing
road.
(b) The damage suffered by the claimants arose
from the use of the new A11 and not from the obstruction of the existing road.
In order to address the first proposition it is
necessary to understand the relationship between the stopping-up provisions in
the side-roads order and the works authorised under the special Act.
The special Act and the works
The right to compensation under section 10 arises
where land is ‘injuriously affected by the execution of the works’. Under
section 1(4) ‘the works’ means ‘the works… of whatever nature, authorised to be
executed by the special Act’; and under section 1(2) ‘the enactment under which
the purchase is authorised and the compulsory purchase order… shall be deemed
to be the special Act’.
Mr Barnes argued that here the enactment under
which the compulsory purchase is authorised consists of sections 238, 239, 240
and 246 of the Highways Act 1980, that is to say those sections that confer the
compulsory powers of acquisition that have been exercised by the Secretary of
State in making the CPO; and that the sections of the Act that give the
Secretary of State power to do those things for which the compulsory powers of
acquisition were conferred do not form part of ‘the enactment’ for the purposes
of the 1965 Act. He relied on Jolliffe v Exeter Corporation
[1967] 1 WLR 993 at p998D where Lord Denning MR identified as the special Act
(under an identical definition to that in the 1965 Act) ‘section 214(1) of the
Highways Act 1959 and the compulsory purchase order’. Section 214(1) contained
the same provision as that now to be found in section 239(1) of the 1980 Act.
Against this, Mr Purchas submitted, and I agree
with him, that ‘the enactment’ is not confined to those provisions of the 1980
Act that confer compulsory powers of acquisition. That it is not confined to
the compulsory purchase provisions alone appears to me to be the inescapable
conclusion to be derived from the wording of section 1(4), which, as I have
noted, defines ‘the works’ to mean those works authorised by the special Act.
Sections 238, 239, 240 and 246 do not themselves authorise works; and it is
provisions contained elsewhere in the Act that authorise, or make provision for
authorising, the works for the purpose of which the compulsory powers are
conferred. In order for section 1(4) to have any practical effect, therefore,
it seems to me that the ‘enactment’ must include at least those other
provisions.
Mr Purchas drew attention to the provisions in
sections 33 and 34 (both of which have been repealed) and 37 of the 1965 Act.
These sections provide, or provided, for the application of Part I of the Act
to compulsory purchase orders under (respectively) the Water Acts 1945 and
1948, Part III of the Housing Act 1957 and section 11 of the Pipe-lines Act
1962. In each case, the ‘special Act’ is defined as the whole of the Act that
contains the compulsory powers, together with the compulsory purchase order.
This provides support for treating ‘the enactment’ in section 1(2) as meaning
the whole of the Act.
The argument against doing so is that it would run
counter to the observation of Lord Denning MR in Jolliffe. But in that
case the decision (which I consider in more detail below) turned on a
stopping-up order made, not under the Act that gave power to make the CPO, but
under another Act altogether, so that it does not appear to have been material
to the decision to determine whether the ‘enactment’ was section 214(1) alone
or some other provisions. Lord Denning MR’s observation was thus obiter,
and in the light of the compelling arguments in favour of the construction for
which Mr
of the 1980 Act is included within ‘the enactment’.
The matter does not, however, stop there. I have
noted earlier that each of the works for the purpose of which the compulsory
purchase order was made were authorised either by the Act itself (eg the
widening and dualling of the A11 to the south of the subject land) or by the
side-roads order (eg construction and improvement of the A505) or by a
combination of the improvement and slip-roads order and the Act itself (in
particular the section of new A11). The question arises whether ‘enactment’
includes the orders as well as the Act. That the word is capable of including
such instruments is, I believe, clear. Thus, for example, the Interpretation
Act 1978 provides in section 23(2) that in the application of that Act to
subsequent Acts ‘all references to an enactment include an enactment comprised
in subordinate legislation…’; and section 21(1) defines ‘subordinate
legislation’ to mean ‘Orders in Council, orders, rules, regulations, schemes,
warrants, byelaws and other instruments made or to be made under any Act’.
Whether ‘enactment’ does include subordinate legislation will depend upon the
context in which it is used. Thus in Rathbone v Bundock [1962] 2
QB 260 the issue was whether in section 232(1) of the Road Traffic Act 1960 a
reference to ‘offences against any other enactment relating to the use of
vehicles on roads’ was apt to include offences under the Motor Vehicles
(Construction and Use) Regulations 1955. At p273 Ashworth J said:
In some contexts the word ‘enactment’ may include
within its meaning not only a statute but also a statutory regulation but, as
it seems to me, the word does not have that wide meaning in the Act of 1960. On
the contrary, the language used in a number of instances strongly suggests that
in this particular Act the draftsman was deliberately distinguishing between an
enactment and a statutory regulation…
In North Tyneside Metropolitan Borough Council v
Allsop [1991] RVR 209, on the other hand, a Divisional Court of the
Queen’s Bench Division decided that ‘enactment’ as used in section 111(1) of
the Local Government Act 1972 included delegated legislation. Section 111(1)
provided:
Without prejudice to any powers exercisable apart
from this section but subject to the provisions of this Act and any other
enactment passed before or after this Act, a local authority shall have power
to do anything… which is calculated to facilitate, or is conducive or
incidental to, the discharge of any of their functions.
The Superannuation Act 1972 empowered the making
of regulations with respect to pensions, allowances and gratuities of
prescribed classes of persons and for their payment by persons prescribed.
Regulations were made under these provisions and the court held that these fell
within the words ‘any other enactment’ because, unless it was permissible to
look at what the regulations made pursuant to the powers
the context of section 111(1) was meaningless.
In the present case, the objective is to identify
the ‘works authorised to be executed by the special Act’. I can see no
justification for distinguishing for this purpose between those elements of the
works that were carried out directly under powers conferred by the 1980 Act and
those that were carried out pursuant to an order made under the Act (the
side-roads order) or pursuant both to powers conferred by the Act and to an
order (the improvement and slip-roads order) made under the Act. The compulsory
purchase order was made for the purpose of enabling the execution of works
authorised both by the Act and by orders made under the Act, and, in my
judgment, the special Act includes all of these.
Stopping-up
Section 14(1)(a)(i) empowers the making of
an order authorising the highway authority ‘to stop up, divert, improve, raise,
lower or otherwise alter a highway…’. Although ‘divert’ and the verbs that
follow it all relate to actions that consist in physical activity, ‘stop up’
itself appears not necessarily to imply any physical activity but to be
synonymous with extinguishment. To stop up a highway pursuant to statutory
powers is to extinguish it, so that the right of passage along it ceases. Statutory
provision for stopping-up has existed at least since the Highways Act 1815. It
is now contained principally in section 116 of the 1980 Act, to which I have
already referred; section 14 itself, and section 18, which contains similar
provisions applying to special roads; section 247 of the Town and Country
Planning Act 1990, which enables the Secretary of State for the Environment,
Transport and the Regions by order to authorise the stopping-up of a highway if
he is satisfied that it is necessary to do so in order to enable development to
be carried out; and section 248 of the 1990 Act, which enables the Secretary of
State by order to authorise the stopping-up of a highway that crosses or enters
the route of a highway proposed to be constructed.
Where the special Act authorises works that
involve the obstruction of a highway, the right of way is by implication
extinguished: see Corporation of Yarmouth v Simmons (1877) 10 ChD
518. In that case a pier erected pursuant to an order made under statutory
powers blocked off an access that the public had enjoyed as of right to the sea
shore. It was argued that, since there were no express words in the order
extinguishing the right of way, the right of way subsisted. Fry J rejected this
contention. He said at p527:
In the first place, it is said that an Act of
Parliament cannot take away a public right of way except by express words. For
that proposition no authority has been cited, and, in my opinion, it is not
maintainable. I think that, when the Legislature clearly and distinctly
authorize the doing of a thing which is physically inconsistent with the
continuance of an existing right, the right is gone, because the thing cannot
be done without abrogating the right.
Mr Purchas submitted that, in the case of a highway
constructed or altered pursuant to an order under the 1980 Act, no stopping-up
order was required in order to extinguish rights of highway over a road that is
obstructed by the authorised works. I rather think, in the light of this
authority, that that is so. On the other hand, a stopping-up order will be
required for those other parts of the obstructed highway that are not
physically affected by the works but are rendered redundant by them. Most of
the lengths of highway shown as being stopped up in the side‑roads order
in the present case fall into this latter category, and it would be natural,
for completeness if for no other reason, to show the hatching carried across
the proposed new highways as well. (It is to be noted, however, that at one
point, where the roundabout of the new interchange crosses the old A11, the
hatching appears not to be taken across the new road.) But, in my judgment, it
would not be necessary that the stopping-up provisions should be made to apply
to such part of an existing highway as was to be obstructed by the works in
order to make lawful the obstruction caused by the works or to extinguish the
right of passage along the obstructed highway. And it follows that it would not
be necessary that the stopping-up provisions of the side-roads order should
take effect so as to extinguish the highway rights before the works that
obstruct the highway are carried out. As I have said, Mr
submission is dependent on there being such an order of events.
In any event, however, there is nothing in the
side-roads order to say that the stopping-up provisions take effect before the
works of construction and alteration commence. Indeed, I think that it is right
to construe the order as providing that the highways to be stopped up remain as
highways until the works of construction or alteration prevent them from
continuing to be so used. Article 3 declares that ‘the Secretary of State is
satisfied:
(1) as respects each length of highway the
stopping-up of which is authorised by this Order, that another reasonably
convenient route is available or will be provided before that highway is
stopped up.
I was told that, although the order came into
force on 23 June 1993, work on site did not begin until January 1994. During
that intervening period, rights of highway must have continued at the very
least in relation to those lengths of highway that were shown in the order as
being stopped up, and for which another reasonably convenient route was to be
provided. That is implicit in the terms of Article 3(1). The order, however,
does not distinguish between those lengths of highway for which there is
already available another reasonably convenient route and those for which such
a route is to be provided, and it is inconceivable that the time or times at which
the stopping-up became effective could be dependent on such a distinction.
Moreover, I cannot believe that, during the months before work began, vehicles
were using the roads not by right of highway but at best under licence from the
landowner.
It seems to me, therefore, that the side-roads
order is properly to be construed as providing that all the lengths of highway
shown as being stopped up should cease to be highway when, but not before, the
works, or physical steps taken in connection with the works, prevented passage
along them. This, in my judgment, is the conclusive answer to Mr
crucial submission that the stopping-up preceded the obstruction that is
claimed to give rise to an entitlement to compensation under section 10.
This conclusion, which is one of construction,
does not depend upon and is unaffected by the cases to which I was referred. A
number of the cases were ones in which compensation under section 68 or section
10 was claimed in respect of the obstruction of a highway (Chamberlain,
Becket, Walker’s Trustees, Howard, Jolliffe, Argyle
Motors, Wildtree Hotels and Clift: I omit Ricket,
where the obstruction was short-term, and McCarthy, where the right of
way was by water). In only one of these (Jolliffe, which I consider
below) does it appear that any argument was advanced that it was not the
authorised works but an associated stopping-up order or statutory provision
that had occasioned the damage complained of. I do not find this surprising. Chamberlain,
Becket and Walker’s Trustees were railway cases, and the Railway
Clauses Consolidation Act 1845 (the Railway Clauses Consolidation (Scotland)
Act 1845 in the case of Walker’s Trustees) were in each case
incorporated with the special Act. Sections 46 to 64 of the 1845 Act contain provisions
relating to the stopping-up of highways, but the effect of these is to confer
protection on those affected by such stopping-up rather than to provide express
authorisation for it. The Midland Railway (Additional Powers) Act 1862 (the Act
in Becket) contained no provision authorising the stopping-up of
highways. These three cases seem to me to involve the tacit application of the
principle later enunciated in Corporation of Yarmouth v Simmons (supra).
The Metropolitan Bridges Act 1881 (which I believe
to be the Act in Howard) did make provision (in sections 9 and 13) for
the stopping-up of carriageways, and similarly the Birkenhead Corporation
(Mersey Tunnel Approaches) Act 1965 (the Act in Argyle Motors) provided
expressly for stopping-up in sections 22 and 24. I rather think, however, that
no useful conclusion can be drawn on the stopping-up argument in relation to
these two cases — in Howard because the report is so short, and in Argyle
Motors because in section 22, which provided expressly for stopping-up,
there was a specific provision in subsection (3) for compensation.
In the recent Court of Appeal case of Clift v
Welsh Office [1998] 4 All ER 852, the owner of a house claimed
compensation for the effects of roadworks that, among other things, created a
need for journey detours to an extent greater in his case than for the public
at large. The Lands Tribunal’s award of compensation was upheld. Counsel for
the acquiring authority, the Welsh Office, accepted that the obstruction by
roadworks of a landowner’s direct access to his house or land, whether from the
public highway or via a private road, was a proper subject for compensation
under section 10, and the court (in the judgment of
Sir Christopher Slade at p861j) said:
Accordingly in our judgment the Lands Tribunal,
on the facts found, was entitled to hold that the effect of the works upon the
property, in terms of interference with the use of the roads and footpaths in
its immediate vicinity, amounted to special damage suffered by the respondents
for the purposes of a claim in public nuisance and were sufficient in law to
found a valuable
[sc ‘valid’] claim for compensation under s 10 of the 1965 Act.
Mr Barnes said, and he is of course right, that no
argument was advanced in Clift on the question of stopping-up. Indeed,
the case was decided, both in the Lands Tribunal and the Court of Appeal,
without reference being made to the powers under which the works were carried
out. The same applies to Clift‘s contemporary, Wildtree Hotels,
which concerned, in part, a claim for compensation for temporary loss of access
through the obstruction of public highways. No assistance on the point at issue
is, in my judgment, to be derived from either of these two cases.
It was Jolliffe [1967] 1 WLR 993 that was
the cornerstone of Mr
busy street (Coombe Street) in Exeter and its trade was ruined when a new inner
relief road was built by the corporation. The new road went across Coombe
Street at a height about 10ft above the previous level and Coombe Street was
closed. None of Mr Jolliffe’s land was acquired, but two parcels of land on the
opposite side of Coombe Street (the pink land) were acquired by the corporation
under a CPO made by them in the exercise of their powers under section 214(1)
of the Highways Act 1959. Shortly before the Minister of Transport confirmed
the CPO, he made an order under section 49 of the Town and Country Planning Act
authorising the stopping-up of Coombe Street. Mr Jolliffe sought a declaration
that he was entitled to compensation under section 68 of the 1845 Act. Having
referred to this provision, Lord Denning MR, with whom Davies LJ agreed, said
at pp998C-999B:
Mr Jolliffe is, therefore, entitled to
compensation for injurious affection due to the execution of the works. What
are the ‘works’? The works are the works authorised by the ‘special Act’. The
‘special Act’ is defined by the Act of 1946 as ‘the enactment under which the
purchase is authorised and the compulsory purchase order’. In this case that is
section 214(1) of the Highways Act 1959, and the compulsory purchase order. The
works authorised by those provisions are the works on the pink land and not the
works on Coombe Street itself. The result is this: If the road works executed
on the two parcels of pink land had injuriously affected Mr Jolliffe’s land, he
would have been entitled to compensation. But it is apparent that the works on
those two parcels taken by themselves) did not affect Mr Jolliffe’s land at
all. They were near Coombe Street, but not across it. So they did not affect
the use of Coombe Street. The thing which affected Mr Jolliffe’s land was the
stopping-up of the highway, for which there is no compensation.
Mr Kerrigan [for Mr Jolliffe] argued that in the
present case the ‘works’ authorised were the whole of the inner by-pass road
round Exeter. He went so far as to say that if the compulsory acquisition had
been of a parcel of land several hundred yards away from Coombe Street — on the
other end of the by-pass — Mr Jolliffe would have had the right to
compensation. I do not think that is correct. The authorised ‘works’ here were
only the works on the pink land. It was not those works which caused the damage
to Mr Jolliffe.
I may add this: it is quite possible that this
pink land might have been acquired by agreement. If that had been so, Mr
Kerrigan admitted that no compensation would be payable. It would be very
strange if a compulsory purchase order made all the difference.
The judge decided in favour of Mr Jolliffe on the
ground that ‘the stopping‑up of the highway was nothing more than a step
in the execution of the authorised works — a step which the defendants
counselled and procured the Minister to take’. I am afraid I take a different
view. The stopping-up of the highway was a separate step altogether. It was not
done in the execution of the authorised works, that is the works on the pink
land. It was done by the Minister under a separate statute. The injury to Mr
Jolliffe would have been just as great had the highway been stopped by a
barrier without any road works at all.
In my opinion the injury to Mr Jolliffe was done
by the stopping-up of the highway, for which the statute has not provided
compensation. He must rest content with the advantageous site which has been
let to him on the by-pass. I would allow this appeal, refuse the declaration
asked, and enter judgment for the defendant.
It is, I believe, clear that the essence of the
reasoning here is that the works that injuriously affected Mr
land — the works in Coombe Street — were not works authorised by the special
Act and, accordingly, did not give rise to a right to compensation under
section 68. The works authorised by the special Act were those on the land that
had been the subject of the CPO, and no part of Coombe Street had been included
in the CPO. This is, as Mr Purchas pointed out, in marked contrast to the facts
in the present case where parts of the highways to be stopped up were included
in the CPO, most notably part of the A505 across which the new A11 was to be
built immediately to the west of the claimant’s premises.
In his judgment, Russell LJ put the matter rather
differently from Lord Denning MR. Having quoted the statement of claim, which
stated that Coombe Street had been closed in accordance with the stopping-up
order in June 1962 and that ‘Thereafter the new highway was constructed across
the closed length of Coombe Street,’ he went on at p1000B:
This seems to me really to establish the
contention of the corporation that the execution of the works authorised, that
is to say, the construction of the highway, did not have any injurious effect
on the plaintiff’s property. The damage was already done. Coombe Street, before
a pick or a spade had been laid on the works, had been turned into a cul-de-sac
so far as the plaintiff was concerned. It is perfectly true that the
stopping-up order would not have been made, nor would the road have been
stopped up, were it not for the fact that the corporation proposed to execute
the highway works; but it cannot therefore be said that the execution of the
works authorised by the compulsory purchase order injuriously affected the
plaintiff’s land.
Mr Barnes relied on this passage as showing that,
regardless of whether some or all of the part of the highway stopped up and to
be built over was included within the CPO, no injurious affection would arise
from the works authorised by the special Act. It would arise from the
stopping-up, and this did not constitute works. He argues that
Russell
pp998H-999A, where (in the passage I have already quoted) he said:
The judge decided in favour of Mr Jolliffe on the
ground that ‘the stopping-up of the highway was nothing more than a step in the
execution of the authorised works — a step which the defendants counselled and
procured the Minister to take.’ I am afraid I take a different view. The
stopping-up of the highway was a separate step altogether. It was not done in
the execution of the authorised works, that is the works on the pink land. It
was done by the Minister under a separate statute. The injury to Mr Jolliffe
would have been just as great had the highway been stopped by a barrier without
any road works at all.
I do not believe that it is possible, on the basis
of this passage, read in its context, to attribute to Lord Denning MR the view
that, if the relevant part of Coombe Street had been included in the pink land,
so that the obstruction to Coombe Street had formed part of the ‘works’,
section 68 would still have had no application. The basis of his judgment, as I
have said, was that the plaintiff could not rely on section 68 because the
Coombe Street obstruction did not form part of the works. It does not seem to
me that he was adopting the particular reason on which Russell LJ based
himself. The true purpose of the passage I have quoted was to express his
rejection of the particular way in which the judge at first instance had
expressed his conclusion.
Having said this, I must add also that I do not
see the judgments in Jolliffe, even that of Russell LJ, as requiring in
the present case that the stopping-up of highways under the provisions of the
side-roads order should be regarded as a distinct step from the works of
obstruction carried out under other provisions of the side-roads order, the
improvement and slip-roads order or the Act itself. For the reasons I have
given, I think that the side‑roads order provided that rights of highway
along the lengths of highway to be stopped up should be extinguished when, but
not until, the works, or physical steps taken in connection with the works,
prevented passage along them.
I do not think that there is anything in the
Highways Act itself to suggest that compensation should not be payable in
respect of works in a highway that is the subject of stopping-up under a
section 14 order. It might seem strange that compensation could be payable when
the Secretary of State is only able to make an order for stopping-up under
section 14 if he is satisfied that another reasonably convenient route is
available or will be provided. But section 126, as I have noted, provides for
compensation where a private access is stopped up under section 125, which
itself contains a similar protective provision to that in section 14(6). There
is no reason in principle, in my view, why, if the access that is stopped up is
by public highway, compensation should be excluded by reason of its being so.
Finally, while Mr Barnes was right to say that
stopping-up is an administrative and legal act requiring no rights in land (and
thus no need for compulsory acquisition) for its implementation, its role in
relation to the new road is essentially as an adjunct to the works of
construction and alteration. This is clear from the special Act (identified in
the way that I have identified it). In view of this, it would seem to me wrong
to treat it as the decisive reason for ruling out compensation where it would
otherwise be payable.
Execution or use of the works?
Mr Barnes, as I have said, submitted that the
claim in this case fails to satisfy the fourth of the section 68 rules, that
the damage must arise from the execution of the works and not from their use.
He said that any diminution in the value of the claimants’ land is attributable
not to the construction of the new A11 but to its use by traffic that would
otherwise have used the old A11. He referred to the leading authority for the
rule, Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171.
In that case, land was acquired for the construction of a railway in west
London under powers given by the Hammersmith and City Railways Act 1861. The
owner of a house adjacent to the railway sought compensation for the effects on
the house of the working of the railway and the running of trains over it, and
the special case stated that the jury had assessed compensation ‘for vibration
from the use of the railway after construction’ (see per Lord Chelmsford
at p200). The case was decided on the basis of the Railways Clauses
Consolidation Act 1845, section 6 of which provided compensation for ‘any lands
taken or used for the purposes of the railway or injuriously affected by the
construction thereof’. It was held that compensation could not be claimed under
the section for any injury that was not the immediate consequence of the
construction of the railway, and there was no provision elsewhere in the Act
for compensation in respect of the effects of the running of the railway. The
decision is properly treated as applying to section 68 of the Lands Clauses
Consolidation Act 1845, so as to exclude compensation for the diminution in
value of land arising not from the execution but from the use of the works.
Mr Purchas submitted that what is meant by the
‘works’ must be determined in the light of the special Act, and he referred to Fletcher
v Birkenhead Corporation [1907] 1 KB 205, in which the taking of
water found in and under the lands taken for construction of a waterworks was
held to found a claim for compensation under the Waterworks Clauses Act 1847.
He also cited three cases that concerned the question of compensation under
section 68 of the 1845 Act or section 10 of the 1965 Act in respect of
restrictive covenants overridden by statutory powers — In re Simeon
[1937] 1 Ch 525; Re 6, 8, 10 & 12 Elm Avenue, New Milton, ex parte New
Forest District Council [1984] 1 WLR 1398; and Brown v Heathlands
Mental Health NHS Trust [1996] 1 All ER 133. Re Simeon was factually
similar to Fletcher and was decided on the same basis, while the other
two cases held that compensation would be payable in respect of covenants
restricting the use of the burdened land.
It does not seem to me that the rule established
in Brand has any application to the claim in the present case. Section
68 has been construed as providing for the payment of compensation in respect
of damage suffered through what would have been an actionable wrong in the
absence of the authority conferred by statutory powers. In order to establish
in a particular case whether compensation is payable and for what, it is
necessary to identify the acts that would, in the absence of the special Act,
constitute an actionable wrong. In Brand the claim related to vibration
from the running of trains — what would have been a private nuisance if the
special Act had not made it lawful by permitting the operation of the railway.
It was in the use of the works, the operation of the railway, that the
actionable wrong would have lain. In the present case, the claim is not based
on any suggestion that, in the absence of powers in the special Act, the use of
the new roads would have constituted a tortious act for which the claimants
could have sought damages. The basis of the claim is that in the absence of the
statutory powers the obstruction of existing highways by the works would have
been actionable as a public nuisance occasioning particular damage to the
claimants. If compensation is payable, it is payable to the extent that, in the
absence of the statutory powers, damages could have been awarded for that
particular tortious act, subject only to this, that it is only damage to land
that can be taken into account and not personal loss. Subject to that point,
the extent to which the consequences of the obstruction can be taken into
account must, in my judgment, be decided on the same principles as would apply
in tort.
The fundamental rule of remoteness is that the
loss must be caused by the unlawful act. The obstruction of a highway giving
access to premises may cause loss to the occupier through the inconvenience and
extra cost occasioned to him in having to take a longer or less convenient
route. Such loss arises directly from the obstruction, although it depends on
the use that is (or will be) made or not made of particular roads in the
highway system. In the context of a claim under section 68 or section 10, such
loss is recoverable to the extent that it represents a diminution in the value
of the claimant’s land. Chamberlain, McCarthy and Caledonian
Railway Co v Walker’s Trustees were cases of this sort. Damage
arising from business lost by reason of the obstruction making the premises
less accessible or attractive to customers can also be said to be caused by the
obstruction. If the loss suffered is only in business profits, while damages
may lie in tort (see Wilkes v Hungerford Market Co (1835) 2 Bing
NC 281) the loss is too remote for the purposes of section 68 because the
claimant’s land has not been reduced in value (see Ricket). If such loss
of custom reduces the value of the land, however, compensation is recoverable:
see Metropolitan Board of Works v Howard and Argyle Motors.
The fact that such loss arises from the prospective use or non-use of
particular parts of the highway system as a result of the obstruction is no
more a bar to relief than it is in the case of the landowner whose own use of
the road for access is made less convenient.
On the other hand, any loss arising from the use
of the new road system must, in my view, be too remote, for the simple reason
that it is not a loss that that can properly be said to have been suffered as a
result of the obstruction. It is loss that arises from the implementation of
the whole of the A505 to Four Went Ways section of the scheme, including 2.5km
of new dual-carriageway trunk road, a large two-level interchange and
substantial modifications to parts of a number of major roads. It cannot, in my
judgment, reasonably be said to have been caused by the execution of the very
small part or parts of the works that would have given rise to an actionable
wrong in the absence of the special Act. It is for this reason, and not because
of what was decided in Brand, that I conclude that any diminution in the
value of the claimants’ land arising from the use of the new road system cannot
be the subject of compensation under section 10. In the circumstances, there is
no need for me to address the arguments advanced by Mr
to Fletcher v Birkenhead Corporation and the restrictive covenant
cases.
Obstructions
The obstructions that the claimants say have
injuriously affected their land are in three locations. First, there is the
construction of the new A11 across the A505 adjacent to the land itself;
second, there are the alterations about 1km to the south where the new A11
diverges from the old and where northbound traffic has been prevented from
continuing up the old road; and, third, there are the works about 1km to the
north in the vicinity of the Four Went Ways roundabout which obstructed the
A1307, the A604 and the A11. Of these, the second does not seem to me to be
capable of founding a claim, since none of the part of the highway on which the
obstruction occurred was included in the CPO. I think also that the
obstructions 1km to the north were too remote.
A right of access by public road to a particular
property must, no doubt, be proximate, and not remote or indefinite, in order
to entitle the owner of that property to compensation for the loss of it.
(per Lord Selborne
LC in Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas
259 at p285).
The roads affected were not simply 1km away (which
in itself might not make them too remote, in my view) but were on the far side
of the roundabout, which received and redistributed the traffic. The effect on
access to the claimants’ land was in these circumstances, in my judgment,
insufficiently direct and proximate to found a claim. The obstruction of the
A505, on the other hand, would not be too remote.
Conclusion
The conclusions to which I have come can be
summarised as follows:
(a) ‘The special Act’ for the purposes of section
1(2) of
it, including the A11 Trunk Road (A505 Junction to Four Went Ways Improvement
and Slip Roads) Order 1993, the A11 (A505 Junction to Four Went Ways
Improvement Side Roads) Order 1993 and the A11 Trunk Road (A505 Junction to
Four Went Ways Improvement) Compulsory Purchase Order 1993.
(b) ‘The
works’ for the purposes of section 10 are those authorised to be executed under
the improvement and slip-roads order, the side-roads order and the 1980 Act
itself on the land acquired under the CPO.
(c) Under the side-roads order, rights of highway
along the lengths of highway shown as being stopped up were extinguished when,
but not before, the works, or physical steps taken in connection with the
works, prevented passage along them.
(d) The claimants’ land has been injuriously
affected, if it has been injuriously affected at all, only by the execution of
those parts of the works that have obstructed lengths of highway providing
access to the land. Loss arising from the use of the new road system is too
remote to found a claim for compensation because it is not properly
attributable to such obstruction.
(e) No claim for compensation can be founded on
the obstruction of the A11 to the south, which was not on land included in the
CPO, or on the obstructions to the A1307, the A604 and the A11 to the north,
where the access affected is insufficiently direct and proximate. The
obstruction of the A505 adjacent to the claimant’s land is, however,
sufficiently proximate.
Thus, my conclusion is that the obstruction of the
A505 is sufficiently proximate to found a claim for compensation if the value
of the claimants’ land has been reduced in consequence. Since both parties have
so far proceeded on the basis that, if the land has been injuriously affected,
the injurious affection consists in the effects of traffic using the new road
instead of the old, there is no evidence before me as to the effect of the
obstruction of the A505 disregarding the rest of the new road system. Whether
it has reduced the value of the claimants’ land and, if so, by how much must be
the subject of evidence at the substantive hearing. I recognise that resolution
of these questions may involve certain conceptual problems in terms of the
assumptions that should be made as to the nature of the road system following
the obstruction. Such problems, however, are not infrequently encountered in the
law of compensation.
Finally, I would add this. Mr Barnes urged on me
the public policy considerations which, he said, were decisively against the
present claim. If the claimants were to succeed, it would mean that whenever a
road scheme was implemented anyone that could show that he had been adversely
affected by the fact that traffic used the new road would have the right to be
compensated, and the consequences would be enormous.
I am sure it is right to bear in mind, as Mr
Barnes pointed out, that the result of public projects such as highway
improvement schemes will almost always be that, while many will benefit, others
will be adversely affected. This fact, and the extent to which such adverse
effects should properly be the subject of compensation, have been the subject
of judicial observation since the early days of compulsory acquisition. Thus in
R v London Dock Co (1836) 5 A&E 163, a case concerning the
obstruction of a highway, Lord Denman said at p179:
The inconvenience they complain of is not only one
common in a greater or lesser degree to every inhabitant in the neighbourhood,
but it is the necessary consequence of the lawful act done by the company.
And the sort of public policy considerations urged
now by Mr
relation to railways by Lord Cranworth in Ricket (1867) LR 2 HL 175 at
pp198-199:
The very existence of a railway must cause loss
to many persons in its neighbourhood. Every inn or posting house at which post
horses were kept suffered, as is well known, grievous loss by the first
establishment of a railroad in its neighbourhood; in fact, the business of such
a house was often utterly destroyed. But it was never contended that this was
an injury to the house… for which compensation could be demanded… Such a claim,
if sustainable, would admit of no limit. The railroad would, it is true,
chiefly affect the custom of posting houses near to it, but it would or might
diminish the quantity of posting to an almost indefinite extent, and I can
discover no limit to the claims which, on the doctrine asserted, might be
successfully made.
It was in response to considerations such as these
and from a concern to do justice where claims were made that, through the
process of judicial interpretation, section 68 was applied so as to give an
entitlement to compensation in particular circumstances where no land of the
claimant had been acquired. Whether those circumstances were the right ones, or
whether they remain the right ones in the present age, are not matters for me.
However, the principles are, I believe, clearly established, and my conclusions
derive from their application. In a case such as the present, where
compensation is claimed for the diminution in the value of land caused by works
that obstruct access by public highway, a claim that would otherwise succeed is
not, in my view, to be defeated solely because of stopping-up provisions
contained in the side‑roads order. On the other hand, a petrol filling
station left isolated by a new bypass will not attract compensation for losses
sustained as a result of the removal of passing traffic by the new road.
This disposes of the preliminary issue. I am
minded to order that the costs of the preliminary issue should be reserved, but
should either party wish to make representations on this they may do so in
accordance with the terms of the letter that accompanies this decision.
