The Acquisition of Land (Assessment of Compensation) Act 1919, the Property Values (Arbitrations and Appeals) Act 1960, the Arbitration Acts 1954 and 1980, the Local Government (Planning and Development) Acts 1963 to 1993, the Local Government (No.2) Act 1960, the Housing Act 1966, the Local Government (Roads and Motorways) Acts 1974 to 1993, the Fingal County Council Northern Motorway (Airport to Balbriggan Bypass) Scheme 1995, and the Confirmation Order of the Minister for the Environment dated 30 March 1998: Representatives of Terence Chadwick Deceased and Sheelagh Davis Goff v Fingal County Council
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 17 October 2003 |
| Neutral Citation | [2003] IEHC 69 |
| Court | High Court |
| Docket Number | 2503SS/Record No. 2001 |
| Date | 17 October 2003 |
BETWEEN
AND
[2003] IEHC 69
THE HIGH COURT
Property - Consultative case stated - Arbitration - Compulsory acquisition - Compensation - Injurious affection - Section 63 of the Lands Clauses Consolidation Act, 1845 - Whether the claimant was entitled to compensation covering the full depreciation in the value of his retained lands or whether he was confined to such loss as was caused by the user of the lands actually taken from him.
Facts: The claimants were owners of property on the north side of the Malahide estuary, which comprised a substantial 3 storey eighteenth century house on approximately 18 acres of land together with farm buildings and a gate lodge. For the purpose of carrying out a motorway scheme from the existing M1 at the airport to the Balbriggan bypass (the 1995 scheme) the respondent compulsory acquired from the claimants approximately .116 acres of land. That land was comprised in 2 plots being plot 47 and 47A. No part of the land taken under the scheme formed part of the carriageway of the new motorway. Plot 47 was used as part of the embankment leading up to the bridge which spanned the Malahide estuary. No part of the works were constructed on plot 47A which formed part of an existing roadway. The claimants contended that the value of their property would be depreciated by its proximity to the new motorway and in their claim for compensation under Section 63 of the Land Clauses Consolidation Act 1845, they claimed to be entitled to recover the entire depreciation in value of their property as "injurious affection" of their retained lands, caused by the exercise by the respondent of their relevant statutory powers in carrying out the motorway scheme. Consequently, the property arbitrator submitted the following question, by way of consultative case stated for the option of the High Court; "Am I correct in holding that upon the true constructive of section 63 of the Lands Clauses Consolidation Act 1845, 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?"
Held by O'Neill J in answering he question in the affirmative:
1. That the real question for determination was whether the original principle as enunciated by case law, namely that compensation should only be paid in relation to injury resulting from what would have been an actionable wrong but for the prevention by parliament was consistent with the correct interpretation of Section 63 of the 1845 Act.
2. That the fundamental objective of statutory interpretation is to give effect to the intention of Parliament, that intention of course to be discerned from the language of the statute in question save where ambiguity or absurdity exists so as to cloud the real intention of Parliament. The principle that, no compensation should be paid where the injury would not otherwise attract damages is of course not expressly included in section 63 or in any other provision of the Act of 1845. The proposition stated in this principle appears to be so obvious as to hardly require express statement.
3. That it is clear from the entirety of the 1845 Act that for those whose land was not taken there is no right to compensation except under section 68, where injury to property is caused by execution of the works. Those limitations on access to compensation under the statutory scheme support the proposition that compensation is provided only where, but for the act of parliament, the injury complained of, would be actionable.
4. That the compensation sought by the claimants for the full depreciation of the value of the property caused by the motorway scheme was a loss which was never a compensatable loss. Accordingly their rights as provided for in Article 43 of the Constitution were not infringement.
That the rule which limits compensation for injurious affection of retained land, to works and user on the taken lands, and thereby excluding injury due to user on other lands was in conformity with the Constitution and was sound in principle.
Reporter: L.O'S.
JUDGMENT of O'Neill J. delivered the 17th day of October, 2003
These proceedings are a consultative case stated for the opinion of the High Court in which the property arbitrator Mr. John R. Shackleton submits the following question:
"Am I correct in holding that upon the true construction of section 63 of the Lands Clauses Consolidation Act 1845, the compensation for injurious affection to the lands retained by the claimants, caused by the carrying out of the work 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?"
The respondent as the "acquiring authority" by virtue of the Acts cited in the title hereof was empowered to construct a motorway from the existing M1 at the airport to the Balbriggan bypass. By virtue of the Fingal County Council Northern Motorway (Airport to Balbriggan Bypass) Scheme 1995, the respondents were empowered to acquire, inter alia, lands of the claimants. The claimants are the owners of a property on the north side of Malahide estuary, about a mile north of Swords and nine miles from Dublin City Centre, east of the existing M1 national primary route. The property is comprised of a substantial three storey 18 th century house on circa 18 acres of land together with farm buildings and a gate lodge. The house is a listed building. For the purposes of carrying out the motorway scheme the respondents compulsorily, acquired from the claimants, .047 hectares (circa .116 acres). This land was comprised in two plots being plot 47 and plot 47 A. Both of these plots were at the eastern end of the claimants land. No part of this 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 which spanned the Malahide estuary. No part for the works were constructed on plot 47 A which formed part of an existing roadway.
The claimant's residence is 198 meters from the carriageway of the motorway at its closet point and 250 metres from the bridge abutment.
The claimants contend that the value of their property will be depreciated by its proximity to the new motorway, and in their claim for compensation under section 63 of the Lands Clauses Consolidation Act 1845, they claimed to be entitled to recover the entire depreciation in value of their property as "injurious affection" of their retained lands, caused by the exercise by the respondent of their relevant statutory powers in carrying out the motorway scheme.
The respondents resist this aspect of the claim, contending that any "injurious affection" of the claimants retained lands is limited to injury caused to those lands by such works as are carried out on, and such user as takes place on the land actually taken from the claimants, and as the land actually taken from the claimants is used merely as a landscaped embankment, and being no being part of the carriageway of the motorway, the claimants claim in respect of injurious affection is limited to such injury, if any, as is caused by that limited use and cannot extend to the depreciation of their property, caused by the use of the two carriageways as a highway, which are constructed on lands not taken from the claimants.
The issue raised in this case stated has not been considered by the courts in this jurisdiction heretofore but has been the subject of several judgments in the United Kingdom and in recent times in the High Court of Australia.
At the root of the controversy is section 63 of the Land Clauses Consolidation Act 1845 which is in the following terms:
"63. 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."
It was submitted by Mr. Mohan S.C. and Mr. Ralston S.C. that the interpretation of section 63 contended for by the respondents is not supported by the words used in the section; that a literal interpretation of the section supports the claimants case and that to arrive at the interpretation favoured by the respondent, would require the addition to the section of words which are not there limiting its effect to injury caused by works on or user of the land taken rather than as is expressed in the section, injury cause "by the exercise of the powers of this or this special act or any act incorporated therewith".
To continue reading
Request your trial
-
Private Residential Tenancies Board v Judge Linnane
...1993 3 IR 551 1992 ILRM 596 1992/2/530 MALICIOUS INJURIES ACT 1981 REPRESENTATIVES OF CHADWICK (DECEASED) & GOFF v FINGAL CO COUNCIL 2004 1 ILRM 521 2003/45/10971 PLANNING & DEVELOPMENT ACT 2000 RESIDENTIAL TENANCIES ACT 2004 PART IV RYALL RESIDENTIAL TENANCIES ACT 2004: UPDATE & REVIEW 200......