Terence Chadwick (Deceased) and Sheelagh Davis Goff v Fingal County Council

• Jurisdiction: Ireland
• Judge: Kearns J.,Mr Justice Fennelly
• Judgment Date: 06 November 2007
• Neutral Citation: [2007] IESC 49
• Court: Supreme Court
• Docket Number: APPEAL NO: 407/2003,[SC No. 407 of 2003]
• Date: 06 November 2007

THE SUPREME COURT

Murray C.J.

Fennelly J.

Kearns J.

Macken J.

Finnegan J.

APPEAL NO: 407/2003

IN THE MATTER OF THE ACQUISTION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 THE PROPERTY VALUES (ARBITRATION AND APPEALS) ACT 1960, THE ARBITRATION ACTS 1954 AND 1980, THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963-1993, THE LOCAL GOVERNMENT (NO. 2) ACT 1960, THE HOUSING ACT 1966, THE LOCAL GOVERNMENT (ROADS AND MOTORWAYS) ACTS 1974-1993, THE FINGAL COUNTY COUNCIL NORTHERN MOTORWAY (AIRPORT TO BALBRIGGAN BY-PASS) SCHEME 1995, CONFIRMATION ORDER OF THE MINISTER FOR ENVIRONMENT DATED 30TH DATED MARCH 1998 CASE STATED BY THE PROPERTY ARBITRATOR

BETWEEN

THE REPRESENTATIVES OF TERENCE CHADWICK DECEASED AND SHEELAGH DAVIS-GOFF

CLAIMANT/APPELLANT

AND

FINGAL COUNTY COUNCIL

RESPONDENT/RESPONDENT

Abstract:

Arbitration law - Practice and Procedure - Case stated - Point of law - Compulsory acquisition - Meaning of injurious affection - Stare decisis - Whether Edwards v. Minister for Transport wrongly decided - Whether compensation payable - Lands Clauses Consolidation Act 1845

Facts: A property arbitrator posed a case stated as to compensation for injurious affection arising from compulsory acquisition of land. The interpretation of s. 63 of the Lands Clauses Consolidation Act 1845 was posed and the appellants contended that Edwards v. Minister for Transport [1964] 2 QB 134 was wrongly decided. The High Court held that Edwards was rightly decided but that no compensation should be paid where injury otherwise would not attract damages.

Held by the Supreme Court per Fennelly J, in dismissing the appeal and affirming the order of the High Court, held that Edwards was supported by compelling authority. However, the High Court was incorrect in holding that compensation was limited to what should be recovered for otherwise unlawful acts

Reporter: E.F

1 JUDGMENT delivered by Mr Justice Fennelly on the 6th day of November. 2007.

• 1. Mr John R. Shackleton, the Property Arbitrator, has posed a question, in a case stated, regarding compensation for injurious affection arising from compulsory acquisition of land. The appellants, who are the claimants for compensation, appeal against the judgment of O'Neill J, dated 17th October 2003, in which the learned judge answered the question in the case stated in a manner unfavourable to the appellants.

• 2. The arbitrator was following a long-held and widely understood interpretation of section 63 of the Lands Clauses Consolidation Act 1845, when he asked the court if he was right in holding that:

  "........ the compensation for injurious affection to the lands retained by the claimants, caused by the carrying out of the works and subsequent use of the motorway, is limited to injurious affection caused by such works on and such use of, the land actually acquired from the claimants?"

• 3. The view of the law thus expressed was applied in a well-known decision of the Court of Appeal in England in Edwards v Minister of Transport [1964] 2 Q. B. 134 (hereinafter "Edwards") and has been followed here for many years, though never considered in our courts. The appellants say that Edwards was wrongly decided and invite the Court to follow the example of the High Court of Australia and decline to follow it. The debate takes the Court back to a consideration of a number of decisions of the English courts dating back to the mid-nineteenth century.

2 The Facts

3 4. The respondent council (hereinafter "the Council") are empowered by the acts and orders set out in the case stated to construct a motorway from the existing M1 at Dublin Airport to the Balbriggan By-Pass. The Fingal County Council Northern Motorway (Airport to Balbriggan By-Pass) Scheme, 1995 ("the scheme") empowered the Council to acquire, inter alia, certain lands of the appellants.

4 5. The claimants are the owners of a property about a mile north of Swords and nine miles from Dublin City Centre, east of the existing M1 national primary route. The property comprises a substantial three storey 18th century house on circa 18 acres (7.3 hectares) of land together with farm buildings and a gate lodge. For the purposes of the scheme the Council compulsorily acquired from the appellants 0.047 hectares

5 (circa .116 acres). That land comprised two plots, plot 47 and plot 47 A, both at the eastern end of the claimants land. No part of the land taken under the scheme, formed part of the carriageway of the new motorway. Plot No. 47 was used as part of the embankment leading up to the bridge

6 which spanned the Malahide estuary. None of the works were constructed on plot 47A which formed part of an existing roadway. The claimant's residence is 198 meters from the carriageway of the motorway at its closest point and 250 metres from the bridge abutment.

• 6. It can be seen, therefore, that only a very small plot of land was compulsorily taken for the purposes of the motorway. Further, no part of that motorway was to be laid out on the lands taken, though one of the plots was designated for use as an embankment, which, as stated in the case stated, will be planted with semi-mature trees and other plantings.

• 7. The appellants' case for compensation for injurious affection to their remaining lands was stated by the arbitrator as being based on evidence that, `Without prejudice to the contention that [he] was not allowed to take such matters into account, ...... the value of [the appellants'] retained lands has been, or will be, devalued by virtue of the construction and subsequent use of the motorway scheme in general." (emphasis added). The amount of any claimed reduction in value has not been determined by the arbitrator.

7 Statutory provisions

8 8. Section 63 of the Lands Clauses Consolidation Act 1845 provides as follows:

9 "in estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid, regard shall be had by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owners of the land by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated therewith. "

10 9. It is common case that section 63 has been applied by the various statutes empowering public authorities to acquire land compulsorily and requiring them to pay compensation. The combined effect of section 52 of the Roads Act, 1993, section 10(1) of the Local Government Act, 1960, as inserted by section 86 of the Housing Act, 1966 and the Third Schedule to the latter statute is to make section 63 applicable to the assessment of compensation. The reference in section 63 to the "special act" must be taken as referring to the scheme as confirmed.

11 10. Some of the reported cases turn on the distinction between section 63 and section 68 of the act of 1845. The latter provision applies where "... any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works..............." This provision has been interpreted as applying to compensation for things done during the essentially temporary phase of the "execution" of the authorised works, but also as making such compensation available to landowners from whom no land has been taken. The principles regarding compensation under the modern English version of section 68 are extensively reviewed by Lord Hoffmann in Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1.

12 The High Court Judgment

13 11. O'Neill J examined the authorities comprehensively. He considered that Edwards had been correctly decided and declined the invitation of the appellants to prefer the Australian High Court decision in Marshall v. The Director General, Department of Transport [2001] H.C.A. 37 (hereinafter

14 " Marshall'). Consequently, he held that the arbitrator had been correct to confine the right of the appellants to claim compensation to the effects of what was done on the land taken.

15 12. He considered that "the rule which permits compensation to a land owner from whom land has been taken for injury caused by the user of the taken lands but confined to the user on the taken lands is also rational, right in principle and fair..."

16 O'Neill also held, however, that "no compensation should be paid where the injury would not otherwise attract damages..." so "that compensation can only be awarded under section 63 and in respect of a wrong which would be actionable but for the intervention of Parliament..."

17 13. As I will explain, this latter pronouncement, relating to a secondary issue, is based on a mistaken view of the meaning of "injurious affection" in section 63. It was not the subject-matter of the case stated and it is not clear to me why the learned judge found it necessary to decide it. In circumstances where the High Court has pronounced on the matter, it is necessary to correct it. A similar situation arose in the case of

18 C. C v Ireland and others

19 [2005] I ESC 48. (see especially the judgment of Geoghegan J).

20 The submissions of the appellants

21 14. Mr Hugh Mohan, Senior Counsel for the appellants, relied essentially on the plain and natural meaning of the words of section 63. The injurious affection to be compensated is caused "by the exercise of the powers of this or the special act, or any act incorporated therewith." It is common case, as I have said, that these words should be read as referring to the scheme. According to Mr Mohan, the reading advocated by the Council would...