Gunning v Corporation of Dublin

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-HC 2052
• Docket Number: No. 96 S.S./1981
• Date: 01 January 1983

1982 WJSC-HC 2052

THE HIGH COURT

No. 96 S.S./1981

GUNNING v. DUBLIN CORP.

IN THE MATTER OP THE ACQUISITION OF LAND (ASSESSMENT OF

COMPENSATION) ACT 1919

THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT 1960

LOCAL GOVERNMENT (NO. 2) ACT 1960

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT 1963

HOUSING ACT 1966

THE RICHMOND ROAD AREA COMPULSORY PURCHASE (ROAD WIDENING

AND IMPROVEMENT) ORDER 1976

AND CONFIRMATION ORDER DATED THE 20th DAY OF JANUARY 1978

BETWEEN:

CHRISTOPHER GUNNING

APPLICANT

and

THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESSES OFDUBLIN

RESPONDENTS

1 Judgment of Miss Justice Carrolldelivered the 24th day of June, 1982

2 This is a special case stated by Mr. Owen McCarthy, as property arbitrator, in respect of compensation to be paid by Dublin Corporation ("The Acquiring Authority") to Mr. Christopher Gunning ("The Claimant") for the compulsory acquisition of his interest inpossession of premises situate at 168 Richmond Road, Fairview in the City of Dublin under the Richmond Road Area Compulsory Purchase (Road Widening and Improvement) Order 1976.

3 The facts are set out in detail in the case stated and may be summarised as follows.

4 The Compulsory Purchase Order was made on the 18th of November, 1976, was confirmed on the 20th January 1978 and became operative on the 19th May, 1978. The Acquiring Authority served a notice to treat, pursuant to Section 79 of the Housing Act 1966, dated the 7th September, 1978 and a notice of intention to enter, pursuant to Section 80 of the Housing Act 1966, dated the 19th September, 1978 on the Claimant.

5 After inspection of the relevant map in the Acquiring Authority's office in January, 1974 confirming that the proposed realignment of Richmond Road would necessitate the acquisition of his premises where he carried on a motor car repair business, the Claimant decided that it was essential for him to acquire alternative premises as near as possible to his existing premises and to have them equipped and ready to operate before the AcquiringAuthority took possession of the existing premises. This decision was taken to mitigate the loss which would be occasioned to him if the Acquiring Authority were to take possession of his premises before he was able to secure suitable alternative premises. There was grave danger that if he could not secure alternative premises he would suffer a grievous loss of good-will, the loss of his skilled staff and possibly the complete extinguishment of good-will.

6 The Claimant entered into a contract to purchase other premises near his existing business premises on the 1st August, 1974 subject to planning permission which was granted in August, 1975 and the sale was closed. He went into occupation of the alternative premises in September, 1977 and commenced building operations. He removed equipment from the old premises and installed it in the alternative premises together with new equipment to replace such equipment as could not be removed and he also installed some extra equipment. This work was completed by March 1978 when the Claimant went into occupation of the alternative premises.

7 In addition to the market value of his premises at the date of the service on him of the notice to treat, the Claimant also seeks to be compensated for losses occasioned to him by the compulsory acquisition under the following heads:-

8 (a) Relocation costs

9 (b) Temporary loss of business

10 (c) Double overheads

11 (d) His time in seeking new premises and

12 (e) Miscellaneous disturbance,

13 all of which were incurred before service of the notice to treat on the Claimant and also for double overheads from the date of the notice to treat to the date on which possession of the Claimant's premises was taken by the Acquiring Authority.

14 It was agreed that had the Claimant waited until the notice to treat had been served before securing alternative premises and relocating his business, the expenses and losses occasioned by the relocation would not have been less than those occasioned by the actual relocation and that if it had not been possible to secure alternative premises, the losses due to the extinction of thegood-will of his business and the payment of redundancy to his staff, would have been greater.

15 The Acquiring Authority submitted that they were not liable to compensate the Claimant for losses occasioned before the service of the notice to treat. They also submitted that they were not liable to compensate him for double overheads from the date of the notice to treat to the date on which possession was taken by the Acquiring Authority because these losses arose from the fact that the Claimant had relocated his business prior to the notice to treat.

16 It was submitted on behalf of the Claimant that due to the nature of his business and the almost complete certainty that the Acquiring Authority would go ahead with their proposed works, it would not have been prudent for him to await the service of the notice to treat and the possible taking of his lands any time after fourteen days thereafter and that it was reasonable to take all possible precautions to secure alternative premises as soon as he knew the compulsory purchase order had beenmade.

17 The net point for the consideration of the Court is whetherthe Acquiring Authority are correct in claiming that they are not liable to pay compensation for any expenses or losses incurred before the service of the notice to treat or for double overheads from the date of the notice to treat to the date possession was taken by them.

18 There is a further question in the alternative whether the Claimant is entitled to be paid compensation by the Acquiring Authority for expenses and losses incurred by the severance of the old premises from his newpremises.

19 Section 84 of the Housing Act 1966applies to this acquisition and it provides as follows:-

20 2 "(1) Where land is acquired compulsorily by a housing authority for the purpose of this Act the compensation payable in respect thereof shall be:

21 (a) in the case of land consisting of a house mentioned in Article 3 of the Third Schedule to this Act - the value of the land at the time the relevant notice to treat is served assessed in accordance with Part I of the Fourth Schedule to this Act,

22 (b) In the case of any other land - the value of the land at the time the relevant notice to treat is served assessed in accordance with Part II of the Fourth Schedule to this Act.

23 (2) Subject to sub-section (1) of this Section and to paragraph (1) of Article 2 of the said Third Schedule, the compensation payable in respect of such land shall be assessed in accordance with the provisions of the Acquisition of Land (Assessment of Compensation) Act1919".

24 Sub-paragraph (b) of sub-section (1) is the relevant paragraph and none of the matters mentioned in Part II of the fourth Schedule to the Act have a bearing on the issues involved here.

25 There is no contest between the parties in respect of the date for the assessment of the market value of the land, i.e. the date of service of the Notice to Treat. The conflict arises over the assessment of compensation for disturbance.

26 In this respect Rules 2 and 6 contained in Section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919 ("the 1919 Act") are relevant.They provide as follows:-

"Rule 2. The value of the land shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise; provided always that the arbitrator shall be entitled to consider all returns and assessments of capital value for taxation purposes made or acquiesced in by the Claimant. Rule 6. The provisions of Rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of the land".

27 The leading case on compensation for disturbance is Horn .v. Sunderland Corporation ( 1941 2KB 26) which held that an owner of agricultural land could have his compensation calculated either at the agricultural land value together with compensation for disturbance or its value as building land but he could not claim for its value as building land together with compensation for disturbance.

28 It was held (inter alia) that it is a mistake to construe Rules 2 and 6 as though they conferred two separate and independentrights, each ascertained in isolation. The two figures are really elements which go to make up the global figure payable but the statutory compensation must never exceed the owners total loss.

29 The judgment of Scott L.J. reviews the effect of legislation and decided cases on the whole subject of compulsory acquisition going back to the Land Clauses (Consolidation) Act 1845. The following passages are taken from his judgment (at page 42):-

30 "It," i.e. (the Act of 1945), "possesses two leading features. The first is that what it gives the owner compelled to sell is compensation - the right to be put, so far as money can do it, in the same position as if his land had not been taken from him. In other words he gains the right to receive a money payment not less than the loss imposed on him in the public interest, but, on the other hand, no greater. The other is that the legislation recognises only two kinds of categories of compensation to the owner from whom the land is taken: (1) The fair value to him of the lands taken and (2) the fair equivalent in money of the damage sustained by him in respect of other lands of his, held with" the lands taken, by reason of severance or injurious affection". (At page 45):-

"As I have already indicated inferentially, there is in the Act of 1845 no express provision giving compensation for disturbance or for any of the similar matters to which S. 2, R. 6, of the Act of 1919 refers, which for brevity I will treat as included in the word "disturbance", the...