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Cite as: [1998] 4 All ER 852, [1999] 1 WLR 796, [1999] WLR 796, [1998] EWCA Civ 1273

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IN THE SUPREME COURT OF JUDICATURE LATRF 97/0516/3

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LANDS TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Thursday, 23 July 1998

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE WARD

SIR CHRISTOPHER SLADE

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CLIFT & ANR

APPLICANT/RESPONDENT

- v -

WELSH OFFICE

RESPONDENT/APPELLANT

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(Transcript of the handed down judgment of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR T MOULD [MR G KEEN for judgment ] (Instructed by the Treasury Solicitor) appeared on behalf of the Appellant

MR A GRANVILLE STAFFORD [MR A BLAKE for judgment ] (Instructed by Messrs J W Hughes & CO, Conway LL32 8AD) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday, 23 July 1998

J U D G M E N T

SIR CHRISTOPHER SLADE: This is the judgment of the court. The Welsh Office appeals by way of case stated from a decision of the Lands Tribunal dated 16th October 1996 on a reference for the determination of the amount of compensation (if any) payable in respect of a claim made by the respondents, Mr and Mrs Clift, under section 10 of the Compulsory Purchase Act 1965 (“the 1965 Act”) relating to Fern Villa, Penmaenmawr Road, Llanfairfechan (“the property”). The Welsh Office is the compensating authority in relation to the claim. The amount at stake is £400, which at first sight would scarcely justify the enormously greater costs of bringing the matter to appeal. But the principal point in the appeal is one which arises from the decision of this court in Andreae v Selfridge & Company Ltd [1938] Ch. 1 and we have been told that there are at least 300 outstanding claims in the area of the Welsh Office which raise the same point, so that the Welsh Office regards this as a test case.

The facts

The factual background to the respondents’ claim for compensation is set out in the member’s decision. It can be summarised fairly shortly.

At all material times the property comprised one of a pair of semi-detached houses lying in a residential area on the east side of Llanfairfechan. Its front faced the sea to the north. There was a front garden and space to the side and rear of the house, part of which was occupied by a free-standing garage. It was one of four similar semi-detached houses. To the rear (south side) of them there was a service lane. Backing on to the south side of this service lane there was a terrace of eight houses which formed a private road known as South Street. The owners of all twelve houses had private rights of way in common over the service lane; however the respondents were the only owners who had a vehicular access from their property onto the service lane.

Before 1987 all four of the semi-detached houses fronted the single carriageway Penmaenmawr Road, which at that time comprised the A55 Chester to Bangor trunk road. In common with the other three houses, the property had a pedestrian access from its front garden onto the public footpath which adjoined the carriageway. At the western end of the four houses a road which was at all material times a public highway, “Tryddin Drycin”, led southwards. At the eastern end another public highway, “Pendalar”, led southwards and then eastwards where it served an area of residential development. Vehicular access to the respondents’ garage was by way of one or other of these two public highways and along the rear service lane. Vehicular traffic was free to turn into and out of each of the public highways at their junctions with Penmaenmawr Road.

Since 1976 and at all material times the respondents owned the freehold interest in the property and lived there with their son and daughter.

In October 1987, as part of a major scheme of improvement of the A55 trunk road, contractors to the Welsh Office began work on the realignment and dualling of the road in the relevant area. The first major work in the vicinity of the property was the construction of the Llanfairfechan By-Pass, the easterly end of which lay some 150 metres to the east of the property. The work started on 26th October 1987 and was completed in October 1989. The work included the diversion of the A55 onto a new single carriageway opposite the property. Penmaenmawr Road remained in its original situation outside the property. To the east, where it had previously made a junction with Pendalar, it was stopped off and linked to Pendalar by a right-angled bend. To the west, it continued along its original course until it was realigned to join a short stretch of new road linking it with a new roundabout on the realigned A55 known as Llanfairfechan East Junction. From this time vehicular access from the property to the east involved travelling westwards to that roundabout and then travelling eastwards on the new A55.

The second major work in the vicinity of the property was the construction of the Pen-Y-Clip section, the westerly end of which lay about 100 metres to the west of the property. This section included the construction of a tunnel to carry a new westbound carriageway, which began some distance to the east of the property. The work included the dualling of the new road opposite the property by the construction of a second carriageway at a lower level and to the north; retaining walls were constructed, part of which lay opposite the property. The work began on 20th November 1989 and continued until sometime in 1994.

The works described above (“the works”) were carried out under statutory powers. Additional land required for the works was compulsorily acquired (though not from the respondents themselves).

Between July 1988 and October 1990 a private housing estate was developed some distance to the south of the property. The only means of vehicular access to this estate was by way of Penmaenmawr Road and Tryddin Drycin.

On 17th December 1993 the respondents’ agent submitted a claim under section 10 of the 1965 Act in the amount of £600 plus fees on Rydes Scale. The reason for the claim was expressed to be “the obstruction by the execution of the work of direct access to the subject property with associated loss in value; the disturbance by the execution of the work, of peaceful enjoyment at the subject property with associated loss in value”.

Prior to the member’s decision:

(1) the Welsh Office had agreed to carry out or pay for certain works of repair to the property, generally the making good of cracks in walls and ceilings, the need for which was attributed by the respondents to the carrying out of the works;

(2) the Welsh Office paid to the respondents a sum of £600 in settlement of a claim under Part I of the Land Compensation Act 1973 (“the 1973 Act”) in respect of the effect of the relevant physical factors upon the property due to the opening and use by traffic of the new A55.

The legal background

Provision is made for the payment of compensation for land compulsorily acquired, or arising out of the compulsory acquisition of land for public purposes, by the Land Compensation Act 1961, the 1965 Act and the 1973 Act. The present claim is concerned only with the right to compensation provided by section 10 of the 1965 Act in respect of any loss caused to the property and the respondents’ freehold interest in it by virtue of the works carried out by the Welsh Office pursuant to its statutory highway powers on land compulsorily acquired from others for the A55 improvements at Llanfairfechan. (It is common ground that the case stated is incorrect insofar as it describes the reference as being in respect of the compensation payable by the Welsh Office upon the compulsory acquisition of the respondents’ property).

Section 10 of the 1965 Act, so far as material, provides:

“(1) If any person claims compensation in respect of any land, or any interest in land, which has been ... injuriously affected by the execution of the works ... 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 Land Clauses Consolidation Act 1845 has been construed as affording ...”

The phrase “injurious affection” under the 1965 Act thus takes its meaning from cases decided under section 68 of the Land Clauses Consolidation Act 1845 (“the 1845 Act “) which, so far as material, provided:

“If any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been ... injuriously affected by the execution of the works ...” [he shall follow the course therein directed]

In Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1974] 1 A.E.R. 201, Lord Wilberforce (at p. 203) described section 68 as having “over 100 years, received through a number of decisions, some in this House and by no means easy to reconcile, an interpretation which fixes on it a meaning having little perceptible relation to the words used”. It is common ground that as a result of this process of judicial interpretation, if not judicial legislation, the right to compensation under section 10 of the 1965 Act is dependent on the fulfillment of a number of conditions, some of which are derived from the leading case of Metropolitan Board of Works v McCarthy (1874) L.R. 7 H.L. 243 and reiterated in Caledonian Railway Company v Walker’s Trustees (1882) 7 A.C. 259. Mr Mould, who appeared for the Welsh Office, helpfully summarised these conditions as follows:-

“(1) the injurious affection must be the consequence of the lawful exercise of statutory powers, otherwise the remedy is in an action in the civil courts: see Biscoe v Great Eastern Railway (1873) L.R. 16 Eq. 636;

(2) the injurious affection must arise from that which will give rise to a cause of action if done without the statutory authority for the relevant scheme of works: see McCarthy’s case at p. 261;

(3) the damage or injury for which compensation is claimed must be in respect of some loss of value of the land of the claimant: see McCarthy’s case at p. 262, Argyle Motors’ case at p. 204a-b;

(4) the loss or damage to the claimant’s land must arise from the execution of the works and not from the authorised use of the lands compulsorily acquired following completion of the works [though Mr Mould mentioned that the effect of this condition had been somewhat mitigated by the 1973 Act];

(5) the amount of compensation must be ascertainable in accordance with the general principles which apply to damages in tort.”

We know of no reason to doubt the accuracy of this summary of some of the relevant principles, which was not challenged by Mr Granville Stafford on behalf of the respondents. On this appeal we are particularly concerned with the conditions (2) and (3). The rationale of condition (2) was expressed by Lord Penzance in McCarthy’s case (at p. 262) as follows:

“It may reasonably be inferred that the Legislature, in authorising the works, and thus taking away any rights of action which the owner of land would have had if the works had been constructed by his neighbour, intended to confer on such owner a right to compensation co-extensive with the rights of action of which the statute had deprived him. But on no reasonable ground, as it seems to me, can it be inferred that the Legislature intended to do more, and actually improve the position of the person injured by the passing of the Act.”

As to condition (3), Lord Wilberforce in the Argyle Motors’ case (at p. 204) explained:

“by a series of judicial observations of high authority it is well established that the only compensation which can be obtained under this section is ‘in respect of lands’, i.e. in respect of some loss of value of land, or (what is a branch under this same heading) in respect of some damage to lands and that compensation cannot be obtained for any loss which is personal to the owner, or which is related to some particular user of the land.”

In that case the appellants accordingly failed to obtain compensation for the loss of profits in their business.

The tort of nuisance and Andreae’s case

The tort of private nuisance is defined or described in Clerk & Lindsell on Torts (17th Edition) para. 18-05 as follows:

“A private nuisance may be and usually is caused by a person doing, on his own land, something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbour by (1) causing an encroachment on his neighbour’s land, when it closely resembles trespass (2) causing physical damage to his neighbour’s land or building or works or vegetation upon it or (3) wholly interfering with his neighbour in the comfortable and convenient enjoyment of his land.”

(This passage was cited as a correct statement of the law by Lord Evershed M.R. in Thompson Schwab v Costaki [1956] 1 W.L.R. 335 at p. 338).

In Andreae’s case (supra) the plaintiff occupied and carried on the business of an hotel proprietor on a piece of land which formed part of an island site. The remainder of the site had been acquired by the defendant company which was proceeding to demolish the various properties which then occupied the site and to rebuild. The plaintiff complained, and the judge found, that by reason of the operations, which involved noise and dust, there was a substantial interference with the comfort of the plaintiff in the reasonable occupation and use of her house, such that, assuming damage to be established, an actionable nuisance would be constituted. The judge found that damage was established and assessed the damages at £4500.

At first sight, the judge’s findings of fact might be thought to have justified his finding of nuisance in accordance with the generally applicable constituents of the tort. However an argument was presented to the court, summarised by Sir Wilfred Greene M.R. as follows (at p. 5):

“But it was said that when one is dealing with temporary operations, such as demolition and re-building, everybody has to put up with a certain amount of discomfort, because operations of that kind cannot be carried on at all without a certain amount of noise and a certain amount of dust. Therefore, the rule with regard to interference must be read subject to this qualification, and there can be no dispute about it, that in respect of operations of this character, such as demolition and building, if they are reasonably carried on and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether from noise, dust, or other reasons, the neighbours must put up with it.”

Sir Wilfred Greene M.R. (with whose judgment Romer L.J. and Scott L.J. agreed) accepted this argument. Contrary to the view of the Court below, he said that there was no evidence which would warrant its being said that “the type of demolition excavation and construction in which the defendant company was engaged in the course of these operations was of such an abnormal and unusual nature as to prevent the qualification to which I have referred coming into operation”. He accordingly concluded (at pp. 6-7):

“I am unable to take the view that any of these operations was of such an abnormal character as to justify treating the disturbance created by it, and the whole of the disturbance created by it, as constituting a nuisance.”

However he added a rider to his statement of general principle, pointing out (at p. 9):

“Those who say that their interference with the comfort of their neighbours is justified because their operations are normal and usual and conducted with proper care and skill are under a specific duty, if they wish to make good that defence, to use that reasonable and proper care and skill. ...... Their duty is to take proper precautions, and to see that the nuisance is reduced to a minimum.”

The Lands Tribunal’s Decision

As has already appeared the claim form sought compensation under two heads, that is to say in respect of:

(A) “the obstruction by the execution of the work of direct access to the property with associated loss of value” and

(B) “the disturbance by the execution of the work of peaceful enjoyment at the subject property with associated loss in value”.

As to head (B) the evidence of Mr Clift and his agent made it clear that he supported this element of claim on the ground (inter alia) that his house had been physically damaged by the works. The cost of making good the physical damage, insofar as it comprised the wall and ceiling cracks was not the subject of the claim because that part of the claim had been settled by the Welsh Office’s offer to pay for or carry out certain works of repair. The member, however, accepted the agent’s evidence that the loss in value of the property due to physical damage caused by the works was not confined solely to the cost of repairing the wall and ceiling cracks, but in addition included the cost of making good the effect of dust and mud upon external and internal decorations. The claim under head (B) thus related to this additional loss in value of the property due to physical damage caused by the works (to which we shall refer later as “the residual loss in value of the property”).

The member pointed out that both parties proceeded upon the basis of the McCarthy rules and in particular the second rule i.e. the injurious affection must arise from that which, if done without statutory powers, would give rise to a cause of action. Dealing first with the claim under head (B), he made in effect the following findings:

(1) but for the statutory powers, the effect on the respondents’ enjoyment of the property of the noise, dust, mud and vibration produced by the works would have constituted nuisance;

(2) the works did not constitute such an abnormal use of land due to their duration and intensity as to fall within the qualification in Andreae’s case;

(3) the Welsh Office took all reasonable precautions in relation to the effect of the works on the property.

On the basis of these findings, it is clear that Andreae’s case would have precluded a claim by the respondents in nuisance founded on damage other than physical damage and the member so stated. The member, however, following two earlier decisions of the Lands Tribunal in Biard v Deal Corporation (1961) 12 P. & C.R. 398 and Flanagan v Stoke on Trent City Council (1982) 262 E.G. 1207, rejected the Welsh Office’s contention that the principle of Andreae’s case applies even in a case where the damage to the plaintiff’s property is physical, saying succinctly:

“I do not think it can be right that where, as appears to be the case here, despite reasonable precautions being taken, physical damage has occurred, compensation cannot be claimed under section 10.”

As to the claim for compensation under head (A) above, the member pointed out that a claim based on the effect of the works on access to the property could only be actionable, if at all, as a public nuisance and that for this purpose it would be necessary for the respondents to show that they suffered a loss greater than that suffered by the public at large. He considered that that requirement would have defeated any claim based on the need for journey detours, which to a greater or lesser degree would have been suffered by all car-driving residents in the Pendalar area. Nevertheless he found that, but for the statutory powers, the respondents would have been able to establish that they were suffering the effects of a public nuisance “albeit, in the main, for a relatively short period”. He gave two reasons for his conclusion that their loss in this context was greater than that of the public at large. First, he said:

“it does appear that the effects which the works had upon the subject property, in terms of the use of the roads and footpaths in its immediate vicinity, were only suffered to a similar degree by the three other semi-detached houses adjacent to the subject property. The WO submit that any inconvenience was temporary and mild and thus not actionable. I accept that it was temporary, but I question whether it was mild.”

Secondly, he said:

“As to rat-running in the service lane, I accept that the WO did nothing to encourage it, but it seems clear that it was a direct consequence of the temporary obstructions to the highway which they instituted as part of the works. I accept that the claimant, subject to the agreement of others having rights of way over the service lane, could have erected a gate to prevent rat-running, but this would have involved a cost and some inconvenience in having to open and close the gate when they, or others having the right to do so, wished to drive along the service lane. Lastly, I observed that the claimants were the only residents who had a garage with access on to the service lane and I think it reasonable to infer that they suffered more from rat-running in the lane than any of the other residents who had a right to use it.”

The member assessed the loss in value to the property under heads (A) and (B) above due to the effect of the works on the property, to the extent that he had found the claim valid, at £400.

The case stated

At the request of the Welsh Office the Lands Tribunal stated a case for this Court’s decision pursuant to section 3 of the Lands Tribunal Act 1949 and R.S.C. Ord 61. The Court’s jurisdiction is limited to consideration of the validity of the Lands Tribunal’s determination of the respondents’ claim in point of law. The questions of law upon which the Court’s decision is sought are the following:

“(a) Whether I was right in law to hold that the principle laid down in Andreae v Selfridge ...................., whereby disturbance arising from temporary construction works which do not constitute an abnormal use of land is not actionable as nuisance at common law in the absence of negligence, does not apply to a case where the nuisance so arising consists of or includes physical damage.

(b) Whether I was correct in law to find that the effect of the roadworks upon (i) the subject property in terms of the use of the roads and foot paths in its immediate vicinity, and/or (ii) rat running along the service lane to the rear of the subject property, amounted to special damage for the purposes of a claim in public nuisance.

(c) Whether my findings as to (i) the effects of physical damage to the subject property, and (ii) the effects which the works had on access to the subject property in terms of the use of roads and foot paths in the immediate vicinity thereof, were sufficient in law to found a valuable claim for compensation under Section 10 of the Compulsory Purchase Act 1965, in accordance with the third rule in Metropolitan Board of Works v McCarthy ......................”.

The first question

We shall consider first the Welsh Office’s argument based on the decision in Andreae’s case, which raises the most important point arising on this appeal.

In Biard’s case (supra), which was one of the two cases followed by the Member, the Lands Tribunal held that the rule in Andreae’s case does not apply to physical injury to property but only to personal inconvenience. The member in that case expressed his reasons as follows (at p. 402):

“During the whole of the judgment of the Master of the Rolls there is not one reference to physical injury. He refers throughout to personal inconvenience and intangible loss, such as a falling off in hotel visitors. The words he uses are, “[if] all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours whether from noise, dust or other reasons the neighbours must put up with it”. I should hesitate to extend “undue inconvenience” to cover actual damage such as the breaking of glass windows or the cracking of walls.”

Mr Mould pointed out that at no point in his judgment in Andreae’s case did Sir Wilfred Greene M.R. expressly differentiate between personal inconvenience and physical injury. He submitted that there is no logical basis for the limited application of the rule in Andreae’s case as propounded in Biard’s case and that the latter case was wrongly decided and should be overruled. Accordingly in his submission the Lands Tribunal erred in law in the present case in finding that the disturbance element of the respondents’ claim fell within the second McCarthy rule.

We are unable to accept these submissions, for the following reasons shortly stated. As Mr Granville Stafford pointed out on behalf of the respondents, it appears from the report of Andreae’s case that the argument of the defendants’ counsel was primarily founded on the decision of Williams J. in Harrison v Southwark & Vauxhall Water Co. [1891] 2 Ch 409 on the facts of which it was held that noise and dust amounting to a nuisance but resulting from temporary and lawful work carried out with reasonable care and skill did not constitute an actionable nuisance. But as Clerk & Lindsell’s description of the tort of private nuisance shows, the category of private nuisance which consists of interference with one’s neighbour in the comfortable and convenient enjoyment of his land is quite separate and distinct from the category which consists of causing actual damage to his land. In Harrison’s case and Andreae’s case the Court was concerned solely with the first category of nuisance. As was pointed out Biard’s case, all the references in Andreae’s case are throughout to personal inconvenience and intangible loss. The effect of the rule in Andreae’s case, so far as it extends, is to exempt an occupier from liability to his neighbour in respect of operations on his land which would otherwise constitute an actionable nuisance. As Sir Wilfred Greene M.R. recognised, when one is dealing with temporary and normal operations, such as demolition and building, there are good reasons why, as a matter of policy, the law should expect neighbours to put up with a certain amount of discomfort and inconvenience; provided that precautions are taken to see that the nuisance is reduced to a minimum. However, we see no sufficient reason why as a matter of policy the law should expect the neighbour, however patient, to put up with actual physical damage to his property in such circumstances. Where there is physical damage, the loss should in our judgment fall on the doer of the works rather than his unfortunate neighbour. No authority has been cited to us in which it has been held that the rule in Andreae’s case applies in respect of physical damage caused by a nuisance. In the absence of such authority, we hold that it does not and that the Lands Tribunal answered the first of the three questions raised by the case stated correctly. We might add that this conclusion accords with the decision of the Supreme Court of Victoria in Harris v Carnegies Pty.Ltd. [1917] V.L.R. 95 (see particularly at p. 99).

The second and third questions

Mr Mould explained that the first limb of question 3 raised by the case stated was directed to the residual loss in value of the property, which had constituted one element of the Lands Tribunal’s Award (head (B) above). In his skeleton argument, he had submitted that no such residual diminution in value had been identified by the Tribunal in any clear and intelligible way. He did not, however, pursue this particular point on the appeal, so that we can deal with the remaining parts of the second and third questions, which concern rights of access to the property, together.

Mr Mould accepted that the obstruction by roadworks of a landowner’s direct access to his house or land, whether that access is from the public highway or via a private road is a proper subject for compensation under section 10 of the 1965 Act, provided that the McCarthy rules are satisfied. The Lands Tribunal had correctly directed itself in this case that the effects of the works on access to the property could only be actionable, if at all, as a public nuisance, and that to establish a claim on these grounds the respondents would have to show some special loss in the enjoyment of their access to the property, greater than that suffered by the general public. Mr Mould, however, challenged the reasons which led the Lands Tribunal to find that special loss had been established.

First he pointed out that the Lands Tribunal had found that the respondents continued to enjoy both vehicular and pedestrian access to the property throughout the period of the works. Its finding of liability for the purposes of the second McCarthy rule in respect of the respondents’ use of roads and footpaths in the immediate vicinity of the property was based upon a finding of greater “temporary” inconvenience having been suffered by the respondents than that sustained by the public generally. In particular reliance on Ricket’s case, he submitted that, in the absence of blocking of access to the property, this incidence of temporary inconvenience was insufficient in law to amount to actionable special damage founding a claim under section 10 of the 1965 Act. He referred us to Lord Cranworth’s diction in Ricket’s case at p. 198:

“The injury must be actual injury to the land itself as by loosening the foundation of buildings on it obstructing its light or its drains, making it inaccessible by lowering or raising the ground immediately in front of it, or by some such physical deterioration.”

The injury in the present case, it was submitted, must be regarded as purely personal to the owners, as it was in Ricket’s case.

The latter case, however, as Lord Wilberforce pointed out in the Argyle Motors case (at p. 204g) was really decided on remoteness. The complaint there was based on a temporary obstruction of the highway which prevented the free passage of persons other than the plaintiff from resorting to his public house and thereby reduced the profits of his business. This claim of consequential injury was too remote to justify a conclusion that the plaintiff’s interest in the house itself had been injuriously affected within the section: (see at p. 196 per Lord Chelmsford L.C.).

The later decision of the House of Lords in The Caledonian Railway Company case which was reached after a review of a number of partially conflicting decisions (including Ricket’s case) is in our judgment clear authority for the proposition that “the obstruction by the execution of the work of a man’s direct access to his house or land, whether such access be by a public road or by a private way, is a proper subject for compensation”: (see at p. 276 per Lord Selborne L.C.) Lord Selborne went on to point out (at p. 285) that the right of access by a public road must be sufficiently proximate in order to entitle the owner of the property to compensation, but it has not been submitted that the right of access in the present case was physically too remote to qualify. The Member described the interference as “temporary” but, on the facts found, it seems plain that both the interference itself and the period over which it continued were by no means insubstantial.

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 claim for compensation under section 10 of the 1965 Act.

Finally, we turn briefly to the issue concerning rat-running. The Tribunal’s findings of fact in this context have been quoted above. From these findings it will be seen that the Welsh Office did nothing to encourage rat-running along the service lane during the course of the roadworks. The incidence of rat-running was due to the actions of third parties acting independently and unlawfully as trespassers in using the lane (which was a private way). In these circumstances the Welsh Office, it was submitted, could not be held liable for the independent acts of trespassers whom it did not encourage and over whom it had no control.

In Cambridge Water Co. Ltd. v Eastern Counties Leather PLC [1994] 2 AC 264 Lord Goff of Chieveley, having pointed out that the fact that the defendant had taken all reasonable care would not of itself exonerate a defendant from liability in nuisance, observed (at p. 301):

“But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in that past sixty years points strongly towards a requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is in liability for negligence.”

We have been told that the Cambridge Water Co. decision was not cited to the member and that there was no argument specifically directed to the foreseeability or otherwise of the rat-running in the service lane. Correspondingly there was no finding of fact explicitly directed to that point. The Lands Tribunal, however, found that the rat-running was a “direct consequence of the temporary obstructions to the highway which [the Welsh Office] instituted as part of the works”. In our judgment on the primary facts as found by the Lands Tribunal, it can readily be inferred that the Welsh Office, when causing the temporary obstructions to the highway, created a situation in which they must have known both that the rat-running on the service lane was a probable consequence and was in fact occurring. Correspondingly, in our judgment, the member was entitled to find that the rat-running constituted a nuisance, albeit arising through the acts of trespassers: (compare Walker v Brewster 5 Eq. 25; Sedleigh-Denfield v O’Callaghan [1940] AC 880).

Conclusion

This appeal has been very well argued on both sides. For the reasons given, it has not in our judgment been shown that the Lands Tribunal erred in law in regard to any of the three issues raised by the case stated. We accordingly dismiss the appeal.

Postscript

The judgment above was prepared in draft and circulated a few days after the argument on this appeal was concluded. Before it was handed down, however, another appeal concerning a claim for compensation under section 10 of the 1965 Act, in the case of Wildtree Hotels Limited and Others -v- Harrow London Borough Council , came on for hearing before Peter Gibson L.J., Pill L.J. and Ward L.J. Since that case had certain features similar to those of the present case and since certain arguments were addressed to the court in that case which were not addressed to us, we thought it right to defer giving judgment until after the judgments in the Wildtree Hotels case were handed down.

This in the event occurred on June 11th, 1998. The judgments are briefly reported in the Times Newspaper reports of June 22nd. In the light of the majority decision in that case, which might be relevant to the issues in the present appeal, at least insofar as they relate to the part of the claim which relates to obstruction of access, we thought it right to afford counsel on both sides the opportunity to come back to us and address argument on the Wildtree Hotels case, if they saw fit. However, counsel on neither side has thought it necessary to follow up this invitation. Though this is speculation, counsel may perhaps have considered that the Wildtree Hotels case would not affect Mr and Mrs Clift’s claim based on physical damage to their property; and it was this claim which the Welsh Office were particularly interested in rebutting, in reliance on their interpretation of Andreae’s case. Be that as it may, we are in all the circumstances delivering this judgment on the basis of the arguments addressed to us and without regard to the judgments in the Wildtree Hotels case. However, those judgments will of course have to be taken into account if our present judgment ever comes to be considered by another Court.

ORDER: Appeal dismissed with costs.