Judgment Title: Representatives of Chadwick (deceased) & anor -v- Fingal County Council
Composition of Court: Murray C.J., Fennelly J., Kearns J., Macken J., Finnegan J.
Judgment by: Fennelly J.
Status of Judgment: Approved
THE SUPREME COURT
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
THE REPRESENTATIVES OF TERENCE CHADWICK DECEASED
AND SHEELAGH DAVIS-GOFF
FINGAL COUNTY COUNCIL
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:
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.
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 (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 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.
8. Section 63 of the Lands Clauses Consolidation Act 1845 provides as follows:
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  2 AC 1.
The High Court Judgment
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  H.C.A. 37 (hereinafter “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.
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…”
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…”
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 C.C v Ireland and others  IESC 48. (see especially the judgment of Geoghegan J).
The submissions of the appellants
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 require the insertion of the words, “on the land taken,” or similar words at the end of the section. The courts cannot interpolate words into a statute.
15. Mr Mohan pointed out that Edwards is not an authority binding on this Court and submitted that it was, in any event wrongly decided. Harman L.J. was mistaken in relying on the authority of In re the Stockport, Timperley and Altringham Railway Co. (1864) 33 L.J.Q.B. Relying on the headnote to the separate report of that decision in Law Times Reports, Vol X, N.S. May 21st 1864, he submitted that it was not a decision on section 63, but on section 68 of the Act of 1845. Harman L.J. was equally mistaken in his reliance on the decision of the House of Lords in Duke of Buccleuch v Metropolitan Board of Works (1872) L.R. 5 H.L. 418. In that case, the Duke was compensated for the general effects of the building and use of the Thames Embankment, not limited to the land taken. The appellants also question the treatment by O’Neill J of the House of Lords decision in Cowper Essex v. Local Board for Acton  14 APP. CAS. 153 as conclusive authority, suggesting that the House there misinterpreted the Duke of Buccleuch case and that, in any event, the decision does not deal expressly with the case of injurious affection caused by works on lands not taken.
16. Mr Mohan relied particularly on Marshall, in which Edwards was very fully considered and not followed. The words of the applicable Australian provisions, though different, were not materially so.
17. Mr Mohan relied, moreover, on the obligation of the courts to interpret section 63 in harmony with the Constitution, since enactments passed since 1937 have expressly applied that section. The appellants’ property rights require that, where their property is compulsorily acquired, the compensation rules should be interpreted so as to compensate them for damage caused, whether by works on or off the land taken. The appellants cite the judgment of Keane J in Underwood v Dublin Corporation  I.R. 69.
Submissions of the Council
18. Mr James O’Reilly, Senior Counsel and Mr Patrick Butler, Senior Counsel, for the Council, fully supported the reasoning of the learned High Court judge in respect of the answer given to the arbitrator’s question. They were less clear in respect of his view on the secondary issue, namely that compensation for injurious affection is limited to matters which could have been the subject-matter of an action in nuisance. However, ultimately, Mr O’Reilly did not support that view. Most importantly, they supported the learned judge’s analysis of the principal authorities relied upon in Edwards. They also argued that Marshall should, at the very least, be distinguished, principally on the ground that the applicable legislation was different.
19. Although Edwards does not bind this Court, it is worth observing that it has been very generally applied by the property arbitrators in this jurisdiction. In my own experience, that has been so for more than thirty years. Hence, it has not, prior to now been questioned in any proceedings in the High Court or this Court. While obviously not binding, Edwards provides a useful starting point, since it brings together the line of authority, long thought to justify the interpretation applied to section 63.
20. The first and, in effect, the crucial case is In re the Stockport, Timperley and Altringham Railway Co. Though doubted at one time by some English judges, it came to be recognised as soundly based and was approved by the House of Lords and the Privy Council. I am quite satisfied that O’Neill J was correct in reading that case as being concerned with section 63 and not 68 of the Act of 1845. The latter provision is concerned with transitory damage caused during the construction phase and it has been held that compensation may be claimed by landowners from whom no land is taken. The headnote reference to section 68 appears only in the Law Times version of the report of Stockport. There is no reference to either section by number in the body of either report of the case (see citation above). However, the text of the judgment of Crompton J showed that compensation had been assessed (by a jury) in the following form:
Crompton J went on to provide the answer to the primary question, the question which is raised in the present case stated as follows:
Where, however, the mischief is caused by what is done on the land taken, the party seeking compensation has a right to say, it is by the Act of Parliament and by the Act of parliament only that you have done the acts which have caused the damage. Without the Act of parliament everything you have done and are about to do in the making and using of the railway would have been illegal and actionable, and is therefore a matter for compensation according to the rule in question.”
23. The case of the Duke of Buccleuch arose from the construction of the Thames Embankment pursuant to the Thames Embankment Act, 1862. The Duke owned Montague House and had enjoyed the benefit of extensive private access to the Thames via a private causeway and jetty constructed outside his garden and on the river bank. The causeway and jetty were taken for the construction of the Embankment with a public highway to be constructed along it, between the Duke’s garden and the river. The Duke’s lack of title to part of the jetty and the flow of the river did not affect his claim. They were treated under the act of 1862 as “lands” for the purposes of the Lands Clauses Acts (per Martin B at page 453). He was treated as the owner of lands taken. An umpire (appointed by arbitrators) awarded a sum which included £5,000 by reason of the fact that Montagu House, the Duke’s retained property, “would be of less value to be occupied by a nobleman or gentleman than it had been before.” There would, he said, “be traffic, and dust, and dirt and commotion, and noise, which seemed to me to alter the character of the house completely.” (see page 422 of the report). Lord Chelmsford, speaking for the majority of the House said that the question was “whether the umpire was authorized to give compensation in respect of the depreciation of Montagu House by the conversion of the land between it and the river into a highway, and the consequent public use of it.”
24. He thought that the answer depended, partly on the interpretation of section 63 and partly on that of section 27 of the special Act, which provided for compensation for “the damage (if any) to be sustained by the owner of the lands by reason of the severing of the lands taken from the other land as such owner, or otherwise injuriously effecting such other lands by the exercise of such power.” In reality, there is no material difference between the two statutory provisions. Lord Chelmsford’s opinion (see page 459) was:
This section contemplates two descriptions of damage likely to be sustained by the owners of land on the bank and river frontage of the Thames - one loss of the river frontage; the other in any other manner, by reason of the embankment or other the exercise of any of the powers of the Act.
It seems to me to be quite clear that the umpire was entitled to consider not only the damage which the plaintiff sustained by being deprived of the causeway but also whether he was entitled to compensation in respect of damage otherwise sustained by reason of the embankment. Now, if he was of opinion that Montague House was depreciated in valued as a residence by reason of the proximity of the embankment and of all the consequences of its use as a public highway, he was bound to give the plaintiff some compensation, and the amount proper to be awarded was entirely for him to determine.
It can hardly be doubted that in addition to the damage sustained by the loss of the river frontage the house must have been "injuriously affected" – i.e. depreciated in value – by way of in interposition between it and the river of an embankment to be used as a public highway; and this seems to bring the right to compensation within the very words of the 27th section of the special Act because it is damage otherwise than by loss of the river frontage by reason of the embankment or roadway.”
26. Duke of Buccleuch was expressly approved by the House of Lords in Cowper Essex v. Local Board for Acton. That case concerned compensation claimed for injurious affection in the form of reduction of value to retained lands resulting from the existence of sewage works, constructed, without nuisance, on the lands taken. Lord Watson, stated, at page 166, that it resulted from the authorities that:
28. Lord Watson, speaking in the same case, could find no substantial distinction between the facts of the case before the House and those in the Duke of Buccleuch case. He stated very clearly that:
30. These decisions were followed by the Court of Appeal in England in Horton v. Colwyn Bay and Colwyn Urban District Council  1 K.B. 327. Members of the Court traced the principle back to the Stockport case. The Privy Council applied it to Canadian legislation in Sisters of Charity of Rockingham v. the King  2 AC 315.
31. It seems to me beyond doubt that there was compelling authority to support the decision in Edwards. Harman L.J. referred to a “generally received view” of the matter and noted that the then current edition of the leading text book, Cripps on Compulsory Acquisition contained the statement that it had “been held subsequently following these cases that no compensation is payable in respect of what is done on lands other than those taken from the claimant,” and referred to "the principle expressed in earlier cases that as the acts of user, the contemplation of which caused depreciation, would be done on lands not the property of the claimant, the claimant was not entitled to compensation under this head.” In any event, the Court of Appeal was unanimously of the view that theses statements were supported by the authorities, most of which I have cited above.
32. For the purposes of its application in this jurisdiction, it suffices to state that the principle had been established in a consistent body of cases in 1922. Where a statutory provision has been the subject of consistent interpretation for a very long time, it would require strong reason to depart from it. I am not, in any event, convinced that the plain meaning of the words of section 63 leads ineluctably to the conclusion that compensation is payable for injurious affection caused by works carried out on lands other than those acquired. The expression, the exercise of the powers of this or the special act, may plausibly be interpreted as referring only to such powers as affect the claimant or his lands.
33. I turn then to consider the decision of the High Court of Australia in Marshall, upon which the appellants rest their case. The case certainly raised squarely the issue whether compensation for injurious affection …………is restricted to compensation for the impact of the work done on the actual land taken…” (majority judgment delivered by Gleeson CJ at page 606). It did so, however, in the context of a section of the relevant Australian legislation. Some part of a large holding was acquired from the appellant for the purpose of road widening. The work caused flooding on his lands due to alteration of the drainage system, but no part of the widened highway or the consequently altered drainage system was on the “resumed land.” The landowner failed in respect of his injurious affection claim at all levels up to the Court of Appeal of Queensland. The latter court followed “the existing authorities on this subject, including Edwards v Minister for Transport…” (see page 613). Section 20(1)(b) of the (Australian) Acquisition of Land Act, 1967 allowed for compensation for damage caused by “the exercise of any statutory powers by the constructing authority otherwise injuriously affecting land.” The majority judgment considered that the language of this provision “could hardly be plainer.” They also found the reasoning in Edwards to be “unconvincing.” (see page 622). The judgment noted that Harman L.J. had described injurious affection as “a piece of jargon,” and criticised this “disparaging language.” It continued:
35. The High Court was undoubtedly influenced strongly by the clear language of the Australian statute. It is true that the Court also criticised Edwards. However, I cannot regard Marshall as an authority on the interpretation of section 63. The court was concerned with a provision of Australian legislation, expressed in significantly different terms. Insofar as it might be considered necessary to distinguish Marshall, the differing statutory provisions would provide ample ground for doing so. The majority judgment did not, in reality, give any consideration to the long line of English authority reviewed in Edwards.
36. Finally, I must address the reliance by the appellants on the constitutional right to the ownership and enjoyment of property as mandating an interpretation of section 63 to the effect claimed. Accepting that section 63, having been applied by a post-Constitution statute, should be construed so as to be consistent with the Constitution, it is necessary to consider whether the traditional interpretation could, in fact, give rise to a possible infringement of any constitutional right of the appellants. It is common case that the appellants are entitled under the section to be compensated for the value of the property taken, for the effects (if any) of severance and for injurious affection of their retained lands by anticipated use by the Council of the lands acquired from them. It is also common case that, if no land had been taken, there would have been no right to compensation for the damage, inconvenience or loss of amenity caused by the future operation of the motorway. No neighbour of the appellants has any such right, unless land is taken and used for that purpose. The appellants’ claim is premised on the proposition that the acquisition has affected or will adversely affect some property right, which is entitled to constitutional protection. What is at stake is the non-tortious effect of activities on land not taken. The injurious affection here in contemplation is the alleged damaging effects to the retained lands of acts which would not give rise to any cause of action at law, particularly the law of nuisance, and does not entail any injury to any existing property right. I find it impossible to discern any unfairness or injustice in this scheme of compensation which could give rise to any issue as to whether, to use the language of Article 40, section 3, sub-section 2 of the Constitution, there was an “unjust attack” on property rights. It follows, as a corollary, that the claimants’ right to sue the Council or any other user either of the land taken or any other lands is undisturbed.
37. For all these reasons, I would not depart from the consistent interpretation applied to section 63 ever since the Stockport decision.
38. I have already made it sufficiently clear that I believe the learned judge erred in holding that compensation for injurious affection is limited to what should be recovered for what would otherwise be unlawful acts. It is a constant theme of the authorities that such compensation for damage to land taken (not for purely personal suffering or discomfort) is payable in respect of damage, where the acts of the acquiring authority are entirely lawful. The implication of holding otherwise would be that the compulsory acquisition authorises, in perpetuity, the commission of nuisance on the land acquired. The rationale, originally declared by Crompton J in the Stockport case is that, were it not for the passing of the enabling legislation (here the approval of the scheme), the landowner would, as an incident of his ownership of the lands acquired from him, be entitled to prevent that land, even upon selling it, from being used for the purpose which that statute authorises. That purpose does not need to be otherwise unlawful. The value of the cotton mill in the Stockport case was reduced by the fact that it would be more costly to insure by reason of its proximity of the railway to be constructed on the acquired lands.
39. I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT delivered on the 6th day of November, 2007, by Kearns J.
Ultimately the decision of the Court of Appeal in Edwards v Minister of Transport  2 Q.B. 134 is a simple one, the court opting decisively for a view of injurious affection whereby compensation is limited to so much of the damage as is attributable to activities carried out on lands taken from the claimant and where there is excluded from the ambit of recovery any compensation for activities on lands which were never his. The effect of Edwards is thus that the claimant does not obtain some windfall benefit over and above what he is entitled to receive in compensation but is treated in the same way in respect of entitlements in respect of activities on off-site lands as his neighbour from whom nothing is taken.
In the course of his judgment in Edwards, Harman L.J. comprehensively reviewed all the authorities before concluding that this view of injurious affection, which had been confirmed by Lord Parmoor in Sisters of Charity of Rockingham v The King  2 AC 315, was the proper one. This was a Privy Council case, but Harman L.J. noted that Lord Parmoor was ‘a great authority on this subject’ and for that reason alone felt the decision to be one “of great persuasive weight”. He noted Lord Parmoor’s emphasis on the fact that:-
I find somewhat unsatisfactory the decision to the opposite effect with regard to the quantification of compensation for injurious affection arrived at by the Australian High Court in Marshall v Director General [205 CLR 603]. This authority forms the central pillar of support for the claimants’ case but unfortunately the Australian High Court decision departs from Edwards without setting out any clear or cogent reason for doing so. I would hasten to acknowledge that the wording of the Australian statute is different from s. 63 in that it contemplates the payment of compensation for damage caused by “the exercise of any statutory powers”, although in my view the source of the particular powers is quite a separate consideration from one which seeks to determine precisely what lands are to be taken into account when determining compensation for compulsory acquisition. Nonetheless there are hints in Marshall that the cases can be distinguished for this reason.
The decision of the High Court of Australia in Marshall overturned decisions previously made in the same proceedings by both the Land Court, the Land Appeal Court and the Supreme Court of Queensland.
The judgment of Gleeson C.J. contains a curious attack on the reasoning of Harman L.J. in Edwards. This is to be found in a passage which implies that the latter by resorting to‘disparaging’ language to describe ‘injurious affection’ (Harman L.J. had referred to the term ‘injurious affection’ as ‘a piece of jargon’) had thereby relieved the High Court from any obligation to examine in any detail his analysis of the earlier cases. In fact Harman L.J. had done no more than use this expression as part of his introductory comments at the outset of his judgment and it formed no part of the ratio in the case.
In his judgment in the same case McHugh J. seems to have felt that Edwards should not be followed on the basis that the courts of Queensland should not “slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation” but equally his judgment fails to identify the supposed failure in Edwards, other than to express the view, as did his colleague Gaudron J., that legislative provisions are to be accorded their natural and ordinary meaning, and, given that the right to compensation for injurious affection following upon the resumption of land is an important right, that right should not be subject to limitations or qualifications which are not to be found in the terms of the statute.
I do not see the interpretation favoured in Edwards as one which interprets a statute in a manner which denies or limits property rights. Rather I see it as a case which underlines the principle that to recover compensation under a statute one must be able to point to clear terminology which so provides, as otherwise a notable mischief could arise as, for example, between a neighbour who has a tiny sliver of land taken by a promoting authority and another who does not, in respect of activities carried out on lands which were never in the ownership of either neighbour. The claimant to my way of thinking never had property rights in the off-site lands. To interpret the statute in a manner which confers a windfall bonus of unknown dimensions on a claimant in respect of activities on such off-site lands would, in my view, require the clearest statutory elaboration if that had been the intention of the legislature. It is to my way of thinking inherently unlikely in the extreme that any such outcome was ever contemplated.
O’Neill J. in his judgment in the High Court herein emphasised, without deciding any issue as to the constitutionality validity of the section, that an application of constitutional principles to the interpretation of s. 63 would not led him to any other conclusion, stating as follows at p. 31:-
I would dismiss the appeal and confirm the order of the learned High Court judge.