AN CHÚIRT UACHTARACH
THE SUPREME COURT
Supreme Court Appeal Numbers: S:AP:IE:2023:000058
High Court Record Number: 2021/741 JR
[2025] IESC 27
O'Donnell C.J.
Dunne J.
Woulfe J.
Murray J.
Donnelly J.
BETWEEN
ELECTRICITY SUPPLY BOARD
Respondent/Cross-Appellant
– AND –
PAUL GOOD
Respondent
– AND –
PETER O'REILLY and ROSE O'REILLY
Appellants/Cross Appeal Respondents/Notice Parties
JUDGMENT of Mr. Justice Brian Murray delivered on the 5th of June 2025
This appeal
1. Sometimes the law becomes a prisoner of its own language. In this case the culprit is 'injurious affection', a nineteenth century description of 'depreciation' that has been prevalent in legislation enabling compensation following the compulsory purchase of property since at least the 1830s. It has been interpreted, reinterpreted and misinterpreted by judges since 1841 and embedded in the most durable of the trio of clauses statutes enacted in 1845, the Land Clauses Consolidation Act ('the 1845 Act'). The effect of the phrase in that Act - introduced into Parliament at the peak of the Victorian railway boom - falls to be considered in this case in the context of the wholly more contemporary interaction between the public interest in the development of the State's electricity infrastructure, and the private rights of property owners across whose land those facilities must, unavoidably, travel.
2. Such is the gravitational pull of the terminology that the phrase 'injurious affection' was drawn into this appeal to construe legislative provisions that do not use it, and that make no reference to provisions that do. Section 53(1) of the Electricity (Supply) Act 1927, as amended, ('the 1927 Act') empowers the Respondent/Cross-Appellant ('ESB') to place an electric line across certain lands. Section 53(9) enables ESB to enter on lands for the purpose of placing, repairing or altering a line installed on foot of that provision. Section 53(5) as amended provides that where ESB invokes either of those powers, the owner or occupier of the lands is entitled 'to be paid compensation in respect of the exercise by the Board ... of the powers conferred by' those subsections.
3. The main issue in this case depends on the extent of that right. The Appellants, Cross Appeal Respondents and Notice Parties ('the O'Reillys') say that when an electric line and supporting poles and pylons are placed, respectively, above and on lands of theirs (as has occurred), they are entitled to be paid sums reflecting more than just the impact on the value of the particular strip traversed by the line or area occupied by the poles or pylons supporting the line (together with consequent disturbance). They say that they are also entitled to compensation for the loss of value of house sites on the holding across which the lines travel, and that they are entitled to be compensated for a general loss of value to that holding. This is what they label 'injurious affection'. ESB disputes that they have any such entitlement.
4. The Respondent ('the Arbitrator'), a Property Arbitrator appointed pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919 ('the 1919 Act') agreed that the O'Reillys were entitled to compensation of this kind. These proceedings - in which ESB sought relief by way of judicial review of that decision - followed. The High Court (Heslin J. [2023] IEHC 83) found that the Arbitrator erred in so finding. Heslin J. also found, contrary to another ground of review urged by ESB, that the Arbitrator had not breached its rights to fair procedures in awarding compensation on the basis and in the manner that he did. This Court granted leave to the O'Reillys to appeal the decision of Heslin J. on the question arising from the extent of the compensation to which the O'Reillys were entitled, also granting ESB leave to cross appeal the decision of the High Court on the fair procedures issue ([2023] IESCDET 101).
The background
- The property in issue comprises two holdings (each described in the awards as 'the subject property') at Crubany, County Cavan. One (the subject of what has been termed wayleave 112) is jointly owned by Mr. and Mrs. O'Reilly and comprises an irregularly shaped holding of c. 6.11 hectares. It was, at the time of the proceedings before the Arbitrator, used for the purposes of grazing and silage. The other (the subject of what is termed wayleave 113) was owned by Mr. O'Reilly and comprised an irregularly shaped holding of c. 7.29 hectares. It was also used for grazing and silage.
- Section 53(3) of the 1927 Act provides that before ESB places an electric line across any lands it must serve on the owner and occupier of the lands a notice (referred to by ESB as a 'wayleave notice'). Such notices were served on the O'Reillys on 15 February 2011. Each notice arose from the intended placing of a 110 kV line across the lands. In relation to wayleave 112, the 110 kV line was to run in a north/south direction for c. 230 metres, with one poleset within the holding. As to wayleave 113, it was to run for c. 120 metres, with one poleset and half of a steel pylon within the holding. In November 2011, the O'Reillys entered into 'Landowner Agreements' with ESB pursuant to which, and in return for unobstructed access to construct the lines and all associated works, sums totalling €33,000 were paid by ESB to the O'Reillys. It is common case as between the parties (and following the decision of O'Moore J. in Payne v. ESB [2021] IEHC 512) that those payments are not to be taken into account in determining the statutory compensation to which the O'Reillys are entitled (although nothing in this judgment should be understood as either accepting, or not accepting, the correctness of that assumption). In particular, and noting that the fact that the O'Reillys - notwithstanding having obtained that sum - are now proceeding to seek further compensation may have been a source of some of the contention in this case, this judgment should not be understood as suggesting that ESB and landowners may not at an early stage in the process whereby the former avails of the statutory powers in issue here, enter into agreements in which landowners receive once and for all lump sum payments to cover (and extinguish) all of their compensation entitlements.
- The line itself was placed on the property in 2011. On 23 May 2018, the O'Reillys submitted a claim to ESB seeking compensation pursuant to s. 53(5) in respect of the acquisition of what were described in the course of the hearing as 'burdensome rights over land'. The sums eventually claimed by them by way of compensation in respect of both 'wayleaves' totalled €172,400. €32,750 was sought for the acquisition of wayleave 112, together with €48,000 for 'injurious affection to retained lands'. €5,000 was claimed for other losses arising from, or incidental to, the wayleave. In relation to wayleave 113, the sum of €11,650 was sought for the acquisition of the wayleave, and a further sum of €20,000 was claimed for 'injurious affection to retained lands'. €50,000 was sought for loss of sites and a further €5,000 was claimed for other losses arising from or incidental to the wayleave.
- The Arbitrator - having been appointed to assess compensation - issued his awards on 8 July 2019. While there are issues (to which I will later return) around the manner in which (and point at which) the O'Reillys fully formulated their claims for compensation, the award was presented on the basis that the O'Reillys' claim had five elements. These comprised: (a) compensation for the acquisition of the wayleave (this being calculated by reference to the value of an area of land under the line, discounted to reflect the fact that it might still be used for some purposes), (b) the loss of value for house sites, (c) a loss of value to the holding less the area under the line, (d) an allowance for the installation of a fibre optic cable under the line, and (e) disturbance (including access rights, re-investment and owners' time). Rolled into these were claims for compensation to reflect the fact that pursuant to s. 53(9), ESB had the right to enter the lands into the future for the purpose of maintenance. By the time the hearing had concluded, the total sought in respect of wayleave 112 was €66,000, and in respect of wayleave 113, €94,000.
- There were various disputes around the value of the land per hectare, the amount of the land comprising the area under the line for the purposes of (c), the extent of the diminution in the value of that land occasioned by the presence of the line, and the amounts properly recoverable for disturbance. However, at the level of principle, the critical difference between the parties related to items (b) and (c). The parties throughout described the alleged losses claimed under these headings as 'injurious affection', although ESB said that this phrase - as the term is generally used in valuation law and practice - did not quite accurately describe what was involved. Injurious affection is, as the O'Reillys' counsel have concisely described it, often deployed as the valuation term for the devaluation of retained lands by reason of the acquisition of other property. Where an electric line is placed on property and the burdens provided for in s. 53(5) are imposed on the owner, there is no land 'taken' and no land 'retained', at least as those terms are conventionally understood. There is nonetheless an interference with the property rights of the landowner. Either way, in this case the term is used by the parties to describe the devaluation of the land that is not under the line, by reason of the proximity of the line. Throughout this judgement I thus use the term 'injurious affection' when referring to the O'Reilly's claim for compensation, to refer to this devaluation.
- Central to the reasoning leading to the Arbitrator's ultimate award (€19,500 in respect of wayleave 112 and €20,000 for wayleave 113) was the following conclusion (which appears in each award):
'The exercise of the right by the Respondents to place pylons/polesets on the land and to string wires in between and to have in perpetuity the right to return, at any time and as often as they consider necessary, to repair or alter those lines must be considered ... to be an onerous or burdensome encumbrance on the lands and their title. That encumbrance does not apply only to the land under the lines, it is an encumbrance on the entire lands comprised in the affected holding. The level of "burden" that that encumbrance on the title creates will depend on the specifics of each individual wayleave, i.e. the length of the line, the number of pylons/polesets, the location of the lines on the holding etc.'
- For each wayleave, the Arbitrator declined to apply varying reductions to the value of the property under the line and the remainder of the holding (as the valuer tendered by the O'Reillys had suggested), instead applying a single reduction to the value of the entire holding. That conclusion was based upon the disruption to the entire holding caused by the right of subsequent access to repair or maintain the line.
- For wayleave 112, the Arbitrator explained this as follows:
'In this instance ... the line is placed to the rear of the holding with access for machinery, etc., being across the major portion of the site and thus, in the event that the ESB require access in the future, as for the subsequent placement of the fibre optic cable, the remainder of the site will be, in my opinion, materially affected. I have used a percentage figure that, in my opinion, combines both that factor and any additional detrimental effect of the lines specifically on that section of the lands that lie within the "safety corridor". In this particular claim, I consider that a figure of 10% is appropriate'.
- However, for wayleave 113, the location of the line made access far easier. So, the reduction was significantly less:
'In this instance, the line is placed at the eastern end of the holding with access for machinery etc being relatively straightforward from the adjoining roadways. I have used a percentage figure that, in my opinion, recognises both that factor and also any additional detrimental effect of the lines specifically on that section of the lands that lie within the "safety corridor". In this particular claim, I consider that a figure of 5% is appropriate.'
- Similarly, the compensation awarded for lost sites was wayleave specific. In the case of wayleave 112, the respondent felt that this location (having regard in particular to its proximity to the roadway) would be a particularly suitable one for a house. He felt that the line would result in a 10% reduction in the value of a site (which reduction he valued at €25,000). As to wayleave 113 he concluded that three potential house sites were affected. One of these was, he concluded, probably lost as the line passes through it while the other two were detrimentally affected. Taking all relevant factors into account (including the prospect that other sites may not be available to Mr. O'Reilly in terms of farming practice) he felt that Mr. O'Reilly was entitled 'to some level of compensation'. This he calculated at €10,000.
The argument on the main issue
- Section 53(3) of the 1927 Act, as enacted, required ESB before placing a line pursuant to s. 53(1) to serve on the owner and occupier of any land it crossed a notice indicating its intent so to do. Section 53(4) enabled the owner or occupier, within fourteen days of service of the notice, to consent to the placing of the line, while s.53(5) addressed the situation in which the owner and occupier did not consent to the line being placed across their land:
'If the owner or occupier of such land or building fails within the fourteen days aforesaid to give his consent in accordance with the foregoing sub-section the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across any such land or attach such fixture to such building in the position and manner stated in the said notice.'
- In Electricity Supply Board v. Gormley [1985] IR 129 ('Gormley') this Court declared s. 53(5) invalid having regard to the provisions of the Constitution. The reason for that finding was that the provision enabled the compulsory acquisition of rights over lands without any provision for compensating the owner of the affected property. The consequence of the striking down of s. 53(5) was very significant as it prevented ESB from proceeding with the erection of new lines, or (it may have been thought) the maintenance of existing ones. Thus, a replacement provision was immediately introduced by the Electricity Supply (Amendment) Act 1985. This was enacted on 2 April 1985 (the decision of this Court in Gormley having been delivered on 22 March of that year). The new subsection thus introduced read as follows:
'If the owner or occupier of such land or buildings fails within the seven days aforesaid to give his consent in accordance with the foregoing subsection, the Board or the authorised undertaker with the consent of the Board but not otherwise may place such line across such land or attach such fixture to such building in the position and manner stated in the said notice, subject to the entitlement of such owner or occupier to be paid compensation in respect of the exercise by the Board or authorised undertaker of the powers conferred by this subsection and of the powers conferred by subsection (9) of this section, such compensation to be assessed in default of agreement under the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919, the Board for this purpose being deemed to be a public authority.'
- It will be immediately noticed that compensation is related to the exercise of two distinct powers - the power to place the line pursuant to s. 53(5) itself, and the powers of entry conferred by s. 53(9). Section 53(9) provides as follows:
'Where the Board or an authorised undertaker is authorised by or under this section to place or retain any electric line across any land or to attach or retain any fixture on any building the Board or such authorised undertaker (as the case may be) may at any time enter on such land or building for the purpose of placing, repairing or altering such line or such fixture or any line or apparatus supported by such fixture.'
- As is obvious from the foregoing, key to this part of the case is the meaning of the word 'compensation' as it appears in s. 53(5). As I have also noted, it is accepted that this includes compensation for the 'taking' and for 'disturbance'. The O'Reillys' case that 'compensation' also includes 'injurious affection' as they use the term is, at least in one sense, simple. They say that they are entitled to full market compensation, which they say by definition includes compensation for depreciation of a retained holding by severance or other injurious acts. What they describe as injurious affection is, they say, baked into the meaning of compensation in s. 53(5) as a result of centuries of application of common law compensation principles as reflected in legislative practice. Both legislative practice, and the common law, they argue, operated on the basis that compensation following a compulsory acquisition was assessed 'on the tort basis', with the consequence that compensation reflected the owner's loss rather than the taker's gain. The application of tort principles, on their case, meant that compensation reflected damages at common law, seeking to achieve restitutio in integrum and putting the plaintiff in the position they would have been in had their rights been observed. Where, they argue, statute provides for compensation, the starting position is that there should be full market compensation to include detrimental impact, severance or other injurious affection, together with personal loss such as disturbance.
- ESB's position is a little more involved. It says that the core meaning of compensation in a provision such as s. 53(5) is restricted to market value compensation for what has been taken, so that if compensation is to be awarded for severance and other injurious affection, this must be expressly provided for either in the compensation provision, or through the incorporation of some or all of the 1845 Act. Section 63 of that statute made provision for injurious affection to be taken into account where 'land' was 'to be purchased or taken':
'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 ... not only to the value of the land to be purchased or taken by the promotors of the undertaking, but also to 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 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.'
- ESB also points to s. 68. While subsequent judicial interpretation of that provision was not always entirely aligned with its literal meaning, on its face that section enabled the recovery of compensation for 'injurious affection' where lands are not acquired from the claimant or where the lands injuriously affected are not held with land that was acquired:
'If any party shall be entitled to any compensation in respect of lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promotors of the undertaking shall not have made satisfaction under the provisions of this or the special Act, or any Act incorporated therewith ... such party may have the same settled either by arbitration or by the verdict of a jury, as he shall think fit ...'
- Neither of these provisions were, ESB said, incorporated into s. 53(5) of the 1927 Act. It emphasises that s. 53(5) requires that compensation be assessed in default of agreement under the 1919 Act and that Act, it is argued, does not envisage the provision of compensation for 'injurious affection'. Therefore, it was contended, the Oireachtas had not intended to include within the concept of 'compensation' as provided for in s. 53(5) compensation for injurious affection and, in fact ESB said, s. 45 of the 1927 Act - which expressly incorporates inter alia the 1845 Act - showed that there was no such intent. ESB also says that if injurious affection is available in cases of this kind, in the present case the basis on which it was calculated was erroneous: the Arbitrator calculated it by reference to the exercise or potential exercise of the right to come onto the property and repair, as provided for in s. 53(9). That ignored the fact, it is argued, that this provision attracts its own separate entitlement to compensation, is de minimis, and is not a basis for awarding injurious affection over the entire lands.
- The O'Reillys respond by explaining that it was never their case that the 1845 Act had been incorporated into the 1927 Act: whether or not it had been, they said, the heading of loss which they describe as 'injurious affection' fell within the meaning of the term 'compensation' as it appeared in s. 53(5) and, if it did not, the provision would be contrary to the Constitution. Thus, apart from everything else, the Court must construe the provision as if such 'full' compensation was made available by that section.
The High Court judgment
- The conclusion reached by Heslin J. that 'injurious affection' (which he described as having been 'introduced' and 'created' by the Land Clauses Consolidation Act 1845) was not a category of loss for which compensation was available under s. 53, was explained by him as follows:
(i) The term 'injurious affection' and the right to compensation for injurious affection were 'creatures of statute, created by legislation, as opposed to arising otherwise' (para. 56).
(ii) To place an electric line across land is not to acquire lands compulsorily (para. 63). The decision of the Oireachtas to use the mechanism of the 1919 Act for the purposes of calculating compensation payable to landowners as a result of the exercise of the powers conferred by s. 53 did not convert that exercise into the acquisition of land by the ESB (para. 64).
(iii) Because in exercising its powers under s. 53 ESB is not involved in the purchase or taking of lands, the 1845 Act 'has no application in the s. 53 context' (para. 76).
(iv) Even if s. 53 had involved the purchase or taking of lands, the relevant provisions of the 1845 Act were not expressly incorporated into that section, and the fact that provision was expressly made for the 1845 Act to be included in the exercise of certain acquisition powers by s. 45 of the 1927 Act would have led the Court to conclude that the legislature made a deliberate choice not to permit the calculation of compensation pursuant to the exercise of s. 53 powers with reference to the 1845 Act (para. 77).
(v) The construction of the 1919 Act, and its relationship with those provisions of the 1845 Act which refer to injurious affection thus favoured by Heslin J. was, he said, supported by the judgment of the High Court (O'Hanlon J.) in McKone Estates Ltd. v. Kildare Co. Co. [1984] ILRM 313 ('McKone'). This Heslin J. interpreted as deciding that without the explicit incorporation of the 1845 Act into s. 53, the O'Reillys did not have a valid route to seek compensation for injurious affection (para. 82). That decision, Heslin J. said (at para. 85) fortified him in the view that '(i) a claim for injurious affection does not have an independent existence outside of the 1845 Act, and (ii) is not a claim which the Oireachtas authorised by means of the statutory scheme comprising of s. 53 of the 1927 Act and the 1919 Act/Rules.'
(vi) Heslin J. also observed (at para. 88) that ESB will be involved in placing a line which potentially crosses multiple folios, which may be big or small, long or short. The length of the corridor through each separate folio will depend on issues such as previous sub-divisions of larger plots, previous transfers of ownership of land, and the configuration of various landholdings. Similarly, he said, the extent to which a particular landowner (a) owns land immediately outside of the corridor but within the same folio; (b) owns land immediately outside that corridor but held on a different folio, whether exclusively or jointly owned with another party; and (c) whether the land immediately adjoining the corridor is in the ownership of a different person or legal entity, will also be accidents of history.
(vii) Heslin J. felt that the conclusion he had suggested was supported by established rules of statutory construction. Where powers conferred by s. 53 were exercised, he said, the harm to the landowner is having a line placed across their land, (para. 97) and the compensation provided for was directed at 'the land across which the line is placed, not other land.' Similarly, he differentiated (para. 98), based on the text of the provision, the land across which the line was placed, from 'other lands, across which no line was placed.'
(viii) He summarised this, saying that s. 53 'clearly enshrines a right to compensation for the direct burden of a line being placed across land, but a claim for injurious affection to other land is an indirect burden for which the words in s. 53, in their ordinary meaning do not seem to provide ..' (para. 101). To conclude otherwise, he said, would require the implication into s. 53 of words that are not there. It was not, he said, permissible to imply such a burden because s. 53 was capable of being understood without that implication (at para. 103).
(ix) Moreover, the judge was of the view that the right for which the Notice Parties contended extended beyond that provided for in s. 63 of the 1845 Act, because it arose other than in a 'compulsory acquisition' context (para. 104).
(x) Applying these principles to the Arbitrator's award in this case, Heslin J. reached two conclusions. First, that the award 'comprises a decision to award damages for injurious affection to other lands across which the line does not pass'. Second, that a 'material reason for taking this approach was potential future access on the part of the ESB' (para. 155). The first was not permissible having regard to Heslin J's construction of the provision.
(xi) Furthermore, and as to the second, Heslin J. was of the view that the Arbitrator had erred in awarding compensation to reflect the fact that there might - but might not be - access obtained to the lands in the future pursuant to s. 53(9): the section, he said, did not involve payment for anticipated compensation for some, as yet undone future works (para. 175). To that extent the Arbitrator made an award for future access that may or may not ever occur. That, Heslin J. said, offended the proper interpretation of s. 53 and ran contrary to the intention of the legislature as expressed in ss. 53(5) and 53(9) when read together. Thus, he said, to award compensation for potential future access constituted a fundamental error on the part of the Arbitrator and resulted in an award that was made outside the jurisdiction conferred upon him.
Defining the main issue
24. It is common for questions of statutory interpretation to revolve around a debate as to whether a matter should, if it is intended to refer to it in a provision, be expressly included in the section or if not, whether it should be expressly excluded. Often, those questions are determined by reference to the common law principle of legality or its constitutional equivalent and, thus, the normative importance of the issue on which the statute is silent. Frequently, a debate of that kind is resolved on the basis that a word or phrase used in a provision has an established legal meaning which, it is to be assumed unless there is reason to suggest otherwise, was intended by the Oireachtas when enacting the provision in question.
25. Here, the question before the Court, as it has been argued, is an unusually involved one. As my earlier summary and the decision of the High Court judge show, the parties respective positions depend on the connection between two terms ('compensation' and 'injurious affection'), the relationship those terms bear to three statutes (the 1845 Act, the 1919 Act and the 1927 Act) and the effect upon all of the foregoing of the guarantees of private property provided for in Articles 40.3 and 43 of the Constitution. That being so, five initial points of definition arise.
(i) 'Compensation'
- It is trite to say that the term 'compensation' refers to something, usually money, paid or awarded to a person consequent upon and in recognition of a loss or injury. Intuitively, it is reasonable to propose that where that term is used without qualification in legislation in conjunction with the compulsory acquisition of property interests, it is intended that the person receiving the compensation will be fully compensated for their total losses resulting from that acquisition. There is any amount of authority, both at common law, and in cases considering the effect of Articles 43 and 40.3 of the Constitution upon regimes of compulsory acquisition of property, to precisely that effect: they variously support the proposition that compensation on a taking should be construed as providing for 'full compensation', should involve the provision to the property owner of the 'total loss' sustained as a result of the compulsory acquisition, should represent 'the full and perfect equivalent in money of the property taken' or a 'full indemnification', should involve 'make-whole' compensation, or should ensure that the owner of the property receive 'whatever the property was worth to him' (together with the cases cited later in this judgment, see Comyn v. Attorney General [1950] IR 142; Commissioners for Public Works v. Flood [1980] ILRM 38; Gunning v. Dublin Corporation [1983] ILRM 56; Uyttewaal v. Commissioners for Public Works [1987] IR 439; and Minogue v. Clare Co. Co. [2021] IECA 98). There seems to be no issue but that these various formulations - which are often referred to as describing 'the principle of equivalence' – define the starting point for construing the word 'compensation' in legislation providing for non-consensual interferences with property interests. The real question is what, exactly they mean. 'Total loss' compensation does not, for example, mean compensation in respect of subjective losses such as distress arising from the compelled divestment of an asset, but it usually does, equally clearly, require the provision of compensation to reflect the market value of an asset so acquired. The issue is how that measure of losses between these clear markers will ordinarily, be defined, identified, and rationalised.
(ii) 'Injurious affection'
- The term 'injurious affection' is perhaps best understood as entailing, at a very general level, some form of 'depreciation': indeed it has been said that the phrase is merely the nineteenth century term for depreciation. The cases show the deployment of 'injurious affection' in a variety of different contexts, all of which usually involve not merely 'depreciation' but an injury affecting retained land caused on, or by reason of the acquisition and/or use of, other property: (a) permanent physical damage to retained land by reason of works carried out on acquired lands, (b) temporary physical damage caused to retained land by reason of the acquisition, (c) depreciation in value caused to retained land by reason of severance, (d) depreciation in value caused to retained land by reason of the proposed use to which the acquired land will be put, (e) depreciation in value of retained lands by reason of construction of the works on the acquired land, and (f) depreciation in value caused to retained lands by reason of the actual use to which the acquired property is put.
- It is not unimportant that those examples show not merely the wide potential application of the phrase, but demonstrate that on the ESB's own case the 1927 Act enables compensation for something very like 'injurious affection': even if one treats s. 53 as involving a 'taking' of some of the airspace above the landowner's property or of that part of the property on which polesets or pylons are erected, the compensation it proposes extends to the impact of these upon property that has on no version been 'taken' - this being measured by the Arbitrator in this case by reference to a 23 m distance on either side of the centre of the lines. In reality, the issue is how far this version of 'injurious affection' extends, and specifically whether it applies to the diminution in value of property owned by the O'Reillys, yet outside that immediate zone.
(iii) The 1845 Act
- In considering the effect of the 1845 Act it is necessary to stress that it is not strictly correct to say that the term 'injurious affection' was introduced into the law by that enactment. Counsel for the O'Reillys helpfully identified various statutes predating that legislation in which the term appeared. Indeed, s. 29 of Eastern Counties Railway Act 1836 (6 & 7 W. IV. c. cvi) was the subject of some consideration by the Court of Queen's Bench (Denman CJ, Williams, Coleridge and Wightman JJ.) in The Queen v. The Eastern Counties Railway. Co. (1841) 2 QB 347 where it was found that a statute using the term enabled compensation (including compensation to persons from whom no lands had been taken) for 'any injury to property, which can be shewn to arise from the prosecution of those works'. However, it was from private acts of the same class enacted in the period shortly before the 1845 Act that most of its clauses were drawn. Thus, what became the 1845 Act had been urged since at least the 1834 proceedings of the Select Committee on Private Bill Fees, and versions of it had been in circulation since then, crystallising a decade later as the pressure of Railway Bills reached unmanageable proportions. It is not irrelevant to the issues of constitutional law to which I later turn that the end product (conspicuously generous to established and politically powerful landed interests) embodied a recognition of the desirability - and permanence - of land expropriation by private business corporations, but at a high cost to the railway entrepreneurs: 'the landed interest emerged from the short-lived railway mania with its legal position not only intact, but enhanced. This fact railway capitalists seemed barely to notice, until it was too late.'
- One of the effects of the 1845 Act was regulating and providing for the incorporation into specific schemes of compulsory acquisition of 'injurious affection' (which the draftsman clearly assumed would be normally understood as including 'severance'), and to that extent, most of the cases dealing with this heading of loss have addressed themselves to the construction of ss. 63 and 68 of that statute. While those provisions are often treated together, and while the language of both suggests that they were intended to be purely procedural - assuming a pre-existing right to compensation - they were concerned with two quite different things. Section 63 was a direction to assessors when determining compensation where land was taken to have regard to damage sustained by the owner by reason of severance of the taken lands from other lands owned by him, and/or other consequent depreciation of the lands so retained. For these purposes, the cases defined the retained lands as those parcels owned by the claimant and 'so near to each other and so situated that the possession and control of each gives an enhanced value to all of them' (Cowper Essex v. Acton (1889) 14 App. Cas. 153, 167 'Cowper' per Lord Watson). Thus, the common ownership of properties is not in itself sufficient to establish a claim for injurious affection: the test is whether possession of each property gives an enhanced value to them both (Mohammed v. Newcastle City Council [2015] UKUT 439 at para. 303).
- Section 68, (which expresses itself as arising where a party is entitled to compensation 'in respect of any lands, or of any Interest therein ... taken for or injuriously affected by the execution of the works') was originally intended (as its language makes clear) to operate only where the acquiring body had executed a project before paying compensation, and to that extent it was also supposed to enable effect to be given to a pre-existing right to compensation. The interpretation of the provision adopted by the courts - which as Lord Wilberforce said in Argyle Motors (Birkenhead) v. Birkenhead Corporation [1975] AC 99, 129 was not always easy to justify on normal principles of statutory interpretation - expanded upon this in ways that were neither totally coherent nor entirely logical. To take one of many examples, in Ferrar v. Commissioners of the Sewers of London (1868-69) LR 4 Ex. 227, Cockburn CJ, having noted that s. 68 on its face relates only to the procedure by which compensation is assessed to those who are already entitled to it, continued to observe that 'it does confer a right to compensation, and that it must do so for this reason, that there is no other provision relating to compensation for land injuriously affected by acts done under the powers either of that or of the local act'. The consequence was that s. 68 was transformed into a right operative in accordance with four conditions derived from the judgment in Metropolitan Board of Works v. McCarthy (1874) LR 7 HL 243. For present purposes, what is critical is that it is concerned (as Scott LJ said in Horn v. Sunderland Corporation [1941] 2 KB 26) only with injury 'to land not held with the lands taken'. The provision, he explained at pp. 42-43:
'has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act to the lands of an owner who has had none of his land taken in that locality. The remedy is given because Parliament, by authorising the works, has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law.'
- I will come shortly to the specific relationship between the 1845 Act and s. 53 of the 1927 Act. What is relevant for present purposes is that there is authority that even without the provisions of the 1845 statute being incorporated into an Act that authorises a compelled acquisition, the enabling of (as it is sometimes referred to) 'damages' for the depreciation of the value of land by reason of the acquisition or carrying on of works of public utility under statutory powers, may still constitute a component of the term 'compensation' as it appears in at least some compulsory purchase legislation. This was strongly suggested in Ireland in R(Moore) v. Abbott and ors [1897] 2 IR 362, where it was held that irrespective of whether an authorising Act expressly incorporates the provisions of the 1845 Act, the use of the term 'compensation' in the authorising statute will include compensation for severance and injurious affection to retained lands. Sir Peter O'Brien LCJ (at p. 391) said that the phrase 'compensation for the purchase of ... lands' in the Defence Act 1842 'means compensation for turning it into a rifle range with all the injurious consequences resulting from it being turned to such a use'. O'Brien J. in his separate judgment expressed the view (at p. 399) that '[t]he power of compulsory purchase was a thing too rare at the date of 1842, to throw any light on the meaning of compensation from the instances in which it existed'. He proceeded to describe the words 'injuriously affected' as they appeared in s. 68 of the 1845 Act (at p. 401) in terms that 'it may be ... not that it is a new right, but that is a legislative exposition of what was included in the word "compensation" - making the meaning of the term co-extensive with the reasons that would operate on the mind of the owner if he were selling the property himself'. R(Moore) v. Abbott was concerned with an acquisition made pursuant to legislation which contained no express reference to injurious affection and, obviously, did not purport to incorporate the 1845 Act. O'Brien J. said (at p. 400), the following:
'The Lands Clauses Acts ... do not, in terms, introduce the element of lands injuriously affected, as something extrinsical or substantive, but in saying "regard shall be had" to other lands of the owner injuriously affected, as if that were a thing inherent in the compensation.'
- It was similarly decided in Re Neds Point Battery [1903] 2 IR 192, 198 that the reference to compensation in this enactment included a right to compensation for injurious affection. The same conclusion as to the measure of compensation under the Defence Act 1842 was reached in Blundell v. The King [1905] 1 KB 506, The Master and Fellows of University College, Oxford v. The Secretary of State for Air [1938] 1 KB 648 and Personal Representatives of Till, deceased, v. Secretary of State for Air [1957] 1 Q.B. 523, [1957] 2 WLR 346. Blundell v. The King and The Master and Fellows of University College, Oxford v. The Secretary of State for Air were followed by the Supreme Court of Canada in Minister for Highways for the Province of British Columbia v. British Pacific Properties Ltd. and ors. [1960] SCR 561. There, there was a debate about whether the British Columbia Land Clauses Act (similar in terms to the 1845 Act), had been by necessary intendment excluded from the provisions governing compensation for a taking made under Highways legislation. The court held that it had not been, but the primary basis for its conclusion that compensation for severance could be awarded may have stood independently of the Land Clauses Acts. Martland J. said of these two English cases (at p. 567)
'The principle applied in these cases is that where a statute requires compensation to be paid for lands compulsorily taken, one element to be included, in determining the compensation for the lands taken, is in respect of damage sustained by the owner, by reason of injurious affection to his adjoining lands, because of the severance.'
- These decisions combine to suggest that where a landowner has part of a holding compulsorily acquired, legislation referring to his enjoying a right to 'compensation' may include a right to be compensated for damage to his retained holding. They suggest that that right will arise where that depreciation to the retained lands has been caused by the loss of the acquired part, or arises from an activity to be conducted on the property so taken from him. That would reflect the essential common law theory of compensation consequent upon a compelled divestment of land: but for the legislation in question, the landowner could prevent the acquiror from taking a portion of his property, thereby damaging the remainder, and could prevent the acquiror from carrying on an activity on the acquired land that damages the retained property. Therefore, where the legislation authorises that which the landowner could otherwise prevent, the compensation should mirror the damages he would have obtained had the relevant activity been conducted without that legal authority.
- However, the 1845 Act may have changed this insofar as acquisitions of land to which it applies are concerned, depending on whether its provisions have to be applied to obtain compensation for severance, or disapplied to avoid it. For statutes of such antiquity and ubiquity, the correct answer to that question is remarkably unclear ('it is at best doubtful that the provisions of [the 1845 Act] can be taken to apply to all special Acts unless expressly excluded or amended in the special Act' ). Indeed, counsel for ESB went so far as to suggest that the provisions of s. 1 of the 1845 Act had simply fallen into desuetude - a very rare occurrence.
- The position favoured by the trial judge, and indeed proposed - obiter – by O'Hanlon J. in McKone is that where land is to be compulsorily acquired, the 1845 Act must be opted into (although it is to be noted that McKone was a case in which no land was acquired and in which the relevant statutory provision - s. 55 of the Local Government (Planning and Development) Act 1963 - specified the extent of the compensation by reference to the reduction in the value of the land affected by a refusal of planning permission and damage to trade carried on there). The literal meaning of the words used in s. 1 of the 1845 Act suggests that the opposite is the case, that construction, depending on the view that the purpose of s. 63 was to give comfort that full market value compensation would be available in future compulsory acquisition provisions and thus, that the 1845 Act is incorporated into every special Act, unless excluded therefrom. On that approach, as counsel for the O'Reillys put it in oral argument, s. 63 cannot be construed as being exclusionary, but is instead expository and inclusionary. As I have noted, it might be said that some of the 1842 Defence Act cases imply that it does not really matter whether the 1845 Act is expressly incorporated or not, on the theory that the notion of 'injurious affection' is built into the concept of 'compensation' whenever that word is used in a statute providing for compulsory acquisition - a somewhat confusing conclusion which 'pressed' Ridley J. in Blundell v. The King (at p. 522). If viewed in the light of the history and purpose of the clauses acts, however, that interpretation can be justified: these were in part intended to afford a point by reference to which those affected by private bills could ascertain their rights, rather than to necessarily introduce a suite of new entitlements.
- For reasons I am about to explain, it is not necessary to decide here the question of whether the effect of the 1845 Act is that, where there is a taking of land within the meaning of that statute, an opt-in of the 1845 Act is necessary before injurious affection should be compensated, or whether absent an opt-out, such compensation must be awarded. It should be observed, however, that cases such as R(Moore) v. Abbott and ors do not necessarily dispose of that issue. It might be said that a careful review of the judgments in that and the other cases concerned with the Defence Act 1842 discloses that the judges viewed that legislation as sui generis, and that the interpretation afforded to it was significantly influenced by the fact that there were several concurrent legal provisions potentially applicable to the acquisition of land for military purposes, three of which (the Barracks Act 1890, the Ranges Act 1891 and the Military Lands Act 1892) clearly (by reason of the incorporation of the Land Clauses Act 1845) enabled compensation for 'injurious affection', suggesting that the same head of damages should be available under the 1842 Act (see the judgments of Sir Peter O'Brien LCJ at p. 391, and of Gibson J. at p. 406): were the position otherwise, it was said, the acquiror could, by reason of the power he chose to invoke, deprive an owner of compensation to which he would be entitled had other provisions been relied upon. The English cases on the Defence Act 1842 are shortly reasoned, while on one view the decision of the Supreme Court in Minister of Highways for British Columbia v. British Pacific Properties was based on the fact that the relevant equivalent to s. 63 of the 1845 Act was not excluded by the provision that enabled the compensation in question (see p. 568).
(iv) What rights are 'taken' by ESB under s. 53?
- Section 1 of the 1845 Act provides that the statute 'shall apply to every undertaking authorized by any Act which shall hereafter be passed, and which shall authorise the Purchase or taking of Lands for such undertaking, and this Act shall be incorporated with such Act' (emphasis added). Section 2 defines 'the special Act' as referred to in the statute as 'any Act ... which shall authorise the taking of lands ...'. 'Lands' are given an expansive definition by s. 3, which makes it clear that heritable property rights are captured by this term ('messuages, lands, tenements, and hereditaments, of any tenure'). Section 5 provides that subsequent legislation to incorporate 'some portion only of the Provisions of this Act' enabling the adoption of certain groups of sections to the exclusion of others.
- It is, of course, open to the legislature to apply the Lands Clauses Acts in general , or some particular provisions thereof to the acquisition of rights or interests that do not constitute 'lands' for the purposes of that Act, in which case the relevant provisions must be applied mutatis mutandis having regard to the nature of the right in issue. There are provisions in which this has clearly been done. There is and can be no question but that the Oireachtas has not so expressly applied either ss. 63 or 68 of the 1845 Act to s. 53 of the 1927 Act.
- It follows that if s. 53 does not involve the 'taking' of 'lands', and whatever the precise relationship between ss. 1 and 5 of the 1845 Act may be, neither ss. 63 nor 68 can be said to automatically apply: the process of automatic incorporation only applies to legislation enabling the acquisition of lands as defined. The question of it applying because it has not been opted out of does not arise. This gives rise to a fourth issue of definition: where the ESB invokes the powers conferred by s. 53 of the 1927 Act, what is the nature of the right it thereby acquires vis a vis the property in question, and how does that right relate to the definition of 'land' in the 1845 Act?
- It is of note that in Gormley, while the High Court judge (Carroll J.) expressed the view that s. 53 created an easement (at p. 142), this Court did not adopt that description, the effect of s. 53 of the 1927 Act being instead described by the Chief Justice in terms that it operated to 'grant to the plaintiff a power compulsorily to impose a burdensome right over the land of another' (at p. 150). In a similar vein, Feeney J. in Cooney v. Cooney Unreported High Court 27 May 2009, at p. 5 observed that the statutory scheme gave the entitlement to ESB to erect lines and pylons, but that it did not 'acquire any ownership and the lands remain the property of the owner'. The legislative scheme as a whole supports that construction: nowhere in s. 53 is it suggested that there is any transfer to ESB of any interest in the landowner's property, nor is it provided that the provision gives rise to an easement, 'statutory' or otherwise. The marrying together in s. 53(5) of the power to lay lines under s. 53(1), and the power to enter those lands under s. 53(9) might imply that the two rights were viewed as similar in legal character, yet the power provided for in s. 53(9) on no version involves the transfer of any property interest to ESB. The very fact that s. 45 of the 1927 Act both refers inter alia to easements and enables the application of the Land Clauses Acts where such an easement is acquired is, if anything, more consistent with s. 53 being understood to function quite differently and to involve distinct interests. As ESB submits, the contrast between the language of these provisions is striking: s. 45 refers to a power 'to acquire compulsorily any land or to acquire or use compulsorily any easement or other right over land' while s. 53 mere refers to the power to 'place any electric line'.
- This would suggest that ESB is correct when it submits that s. 53 is in the nature of a right of occupation and, where the line is above ground, that it encompasses the right to occupy the airspace taken by the line and the right to occupy the surface of the land on which supports for the line are placed. But no land or interest in land is transferred, and no land or interest in land taken where the statutory rights provided for under the legislation are asserted by ESB.
- In the course of their argument both to the High Court and in the course of this appeal, the parties referred to various decisions from the United Kingdom, and in particular those of the Court of Appeal for England and Wales in Welford and ors. v. EDF Energy Networks (LPN) [2007] EWCA Civ 293 ('Welford') and National Grid plc v. Arnold White Ltd. [2014] EWCA Civ 216, [2014] Ch 385 ('Arnold White'). These cases must be treated with some caution, as the legal regimes in those jurisdictions differ from that provided for in the 1927 Act. However, there are some important similarities.
- For a start, the English scheme also envisages a sharp division between the acquisition by electricity undertakings of interests in land, and the creation of statutory rights of entry and occupation: Schedule 3 to the Electricity Act 1989 enables certain electricity undertakings to acquire rights over land while Schedule 4 refers to the installation and keeping of an electric line on, under or over any land, which 'wayleaves' may be granted by the Secretary of State without the consent of the landowner. Schedule 3 is entitled 'Compulsory Acquisition of Land etc. by License Holders' and provides for a scheme of compensation which incorporates provisions of the Compulsory Purchase Act 1956 (including provision for injurious affection).
- Paragraph 7 of Schedule 4 provides considerably less detail as to the method of determining compensation where necessary wayleaves are taken. The relevant provisions are as follows:
'(1) Where a wayleave is granted to a licence holder under paragraph 6 above-
(a) the occupier of the land; and
(b) where the occupier is not also the owner of the land, the owner,
may recover from the licence holder compensation in respect of the grant.
(2) Where in the exercise of any right conferred by such a wayleave any damage is caused to land or to movables, any person interested in the land or movables may recover from the licence holder compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or movables he may recover from the licence holder compensation in respect of that disturbance.
(3) Compensation under this paragraph may be recovered as a lump sum or by periodical payments or partly in one way and partly in the other.
(4) ...'
- The analysis adopted in that jurisdiction of the nature of the interest arising where the Schedule 4 powers are exercised is, I think, instructive. The English Law Commission in its Consultation Paper on the Electronic Communications Code (Paper No. 205, 2012 Appendix A para. 6) usefully contrasted the two different powers arising under Schedules 3 and 4, categorising the latter as 'a consent for a particular purpose rather than a property right' (a conclusion repeated in the subsequent Report, at para. 1.27). The same approach was adopted in the leading texts addressing the position of consents for the installation of electric lines by analogy with the consideration of the position of underground gas pipes taken in Newcastle-under-Lyme Corporation v. Wolstanton Ltd., [1947] Ch. 427 (42 Halsbury's Laws of England (5th edn) at para. 198 and Gale, Easements (18th edn) para. 1-121). That approach was adopted by the Upper Tribunal in Stynes v. Western Power [2013] UKUT 214 (LC) ('Stynes') in concluding that the 1845 Act had no application where the Schedule 4 powers were in issue (at para. 41):
'A necessary wayleave granted under paragraph 6 is one of those rights Parliament has provided to enable statutory undertakers to enter on privately owned land and install, maintain and repair the services – such as pipes, cables or wires – for which they are responsible. It is not an easement. Parliament has chosen to define it simply in terms of its being a "consent" for the licence holder to do certain specified things – "to install and keep installed the electric line on, under or over land and to have access to the land for the purpose of inspecting, maintaining, adjusting, repairing, altering, replacing or removing the line". The consent creates an exclusive right of occupation, but not an easement or any right of ownership. On acquiring a right of this kind the statutory undertaker does not become a purchaser of the land or airspace through which his pipe, cable or wire passes or will pass, and thus subject to a requirement to register title. This is not a property right. The grant of a wayleave was not specified by section 1 of the Law of Property Act 1925 as an interest in land, and it is not a disposition required to be registered under section 27 of the Land Registration Act 2002.'
(emphasis added)
- The Tribunal continued (at para. 44):
'A necessary wayleave acquired under paragraph 6 of Schedule 4 is not an easement, or any form of interest in or right over land. Schedule 4 puts in place a statutory mechanism for granting a consent that would otherwise have been possible only by way of an agreement, which binds subsequent owners and occupiers but does so without producing any property interest or right. The words "consent for the licence holder to install and keep installed the electric line on, under or over the land..." in paragraph 6(1) do not connote the granting of an easement. An easement requires both a dominant and a servient tenement. A necessary wayleave does not.'
- The Schedule 4 wayleaves share some features with s. 53, but also present others: (a) the process of granting a necessary wayleave under Schedule 4 involved a right to a hearing extended to anyone in occupation of the land, including a bare licensee, (b) the provision expressly states that the interest is not registerable, and (c) the structure supporting the line is expressly treated differently, the licence holder being deemed to have an interest in the land on which that is placed. In comparison, and as to (a), s. 53 provides for notice to any occupier, thus including a bare licensee, and a right of objection accordingly. Insofar as (b) goes, there was no consensus between the O'Reillys and the ESB as to the registration status of the right. In Gormley, Carroll J. felt that s. 53 created an easement that was not registerable under s. 72 of the Registration of Title Act 1964, not having been created by express grant after first registration. Counsel for the O'Reillys said that he adopted the position that the right was capable of being registered seven days after the service of the wayleave notice, referring in this regard to the definition of land in the Land and Conveyancing Law Reform Act 2009 ('the 2009 Act'). And insofar as (c) is concerned, while s. 53 does not differentiate between the line and the supports, it does not expressly confer any interest in the lands on which the pylon is erected: indeed Carroll J. found in Gormley that ownership of the pylons continued to vest in ESB which was not obliged to acquire the sites of the foundations compulsorily (at p. 139) Nonetheless, the analysis in the English cases confirms the characterisation I have suggested of s. 53.
- It will be obvious from the words I have earlier highlighted from paragraph 41 of the judgment in Stynes that the Tribunal in that case was affected in its conclusion by the fact that English law did not specify a consent of this kind to be an interest in land. That was the position in this jurisdiction when s. 53 was adopted in its present form in 1985. Since then, s. 11(4)(j) of the 2009 Act has come into effect. That provision and the following subparagraph (which should be read together), provides that what it describes (s. 11(1)) as 'legal interests in land which may be created or disposed' include (j) 'a wayleave or other right to lay cables, pipes, wires or other conduits' and '(k) any other legal interest created by any statutory provision'. Section 11(9) states that '[a]ll estates and interests in land, whether legal or equitable, may be disposed of'. Section 10 provides that the concept of an estate in land is retained and continues 'with the interests specified in this Part to denote the nature and extent of land ownership'. Section 10(3) provides:
'All references in any enactment or any instrument (whether made or executed before or after the commencement of this Part) to tenure or estates or interests in land, or to the holder of such estate or interest, shall be read accordingly.'
- ESB states that 'a right to place a line across lands under the 1927 Act does not create any legal interest in the land as referred to [in] section 11 of the 2009 Act', observing that 'the ESB's interests is not one that can be disposed of'. The essential point made here is, I think, well placed. Section 11(1) identifies the legal estates in land that may be created or disposed of. Section 11(4)(j) repeats this by reference to inter alia the right to lay cables or wires. What it does not do is provide that rights of this kind are, ipso facto and for that reason alone, interests in land. It depends on the circumstances and, in the case of such rights arising by statute (on the assumption that these are captured by the provision), it depends on the statute. This point was made by the Law Reform Commission which said of s. 11(4) as it then stood in the Bill proposed by the Commission:
'It is important to emphasise that subsection (4) simply lists those interests which are "capable" of being legal interests; whether in a particular case an interest is in fact legal will depend on such matters as how it is created.'
- Given that, for the reasons I have earlier explained, s. 53 as it was enacted in 1985 did not create such an interest in land, I do not see how it can be said that the effect of the 2009 Act was to re-designate the right provided for in that provision as such an interest. Nothing in the 2009 Act so states: all ss. 10 and 11 do is provide (in the case of what have been referred to in submissions as 'statutory easements') that such rights may be interests in land, not that they are all retrospectively deemed to have been so. Where, as here, the legislation properly construed did not create a legal interest, the 2009 Act has not changed that.
- Thus, in conclusion, the 1845 Act is not automatically incorporated into the compensation process envisaged by s. 53. Given that no provision of the 1845 Act has been expressly applied to that process, the word 'compensation' as that term is used in s. 53 must be construed without regard to ss. 63 or 68. ESB at the same time contends that s. 53 does not result in the acquisition of an interest in land, and that the failure of the Oireachtas to expressly incorporate the 1845 Act into s. 53 meant that it did not intend to enable compensation for losses falling under the rubric of 'injurious affection'; I am unconvinced by this proposition. It is very difficult to my mind to see how it can be argued that because it is possible to opt in to these provisions in the case of sections of an Act providing for compensation for interferences with property that are not 'takings', it must follow that the failure to opt into them means that compensation for injurious affection (to repeat I am using this term in the sense in which it is employed by the parties here) cannot be awarded in this case.
- In summary, these provisions of the 1845 Act are concerned with injurious affection in legislation concerned with the purchase or taking of lands. Section 63 itself arises only where there is such a taking. Section 68 addresses itself to injury to the claimant's own lands as a result of works outside that land (this being why the O'Reillys did not rely upon the provision either before the High Court or in the course of this appeal). It may well be that a failure to expressly adopt those provisions in a statute that does provide for the purchase or taking of 'land' may lead to the conclusion that they do not apply to a compensation process provided for thereby, and that in consequence, implicitly, the right to claim compensation for 'injurious affection' in such a case has been excluded (a conclusion that would depend on the precise relationship between ss. 1 and 5 of the Act and the effect of the fact that the Oireachtas must be taken to have legislated in this 'field', thereby excluding claims for such compensation outside the enacted provisions). But this is not a provision that addresses the 'taking' of 'lands' and no inference to that effect can thus be drawn.
(v) The 1919 Act
- It sometimes happens that the 1919 Act is applied to the assessment of compensation in contexts other than that of the 'taking' of land. Where that occurs, the function of the appointed arbitrator will be to award compensation in accordance with the requirements of the statute conferring the right to compensation (see McKone at p. 323-24). That reflects the fact that the provisions of the 1919 Act do not themselves confer any right to compensation, merely providing the procedure for measuring compensation awarded under the provisions of another enactment (id.). From that - wholly correct - premise, ESB suggested that without the incorporation of the 1845 Act, there was no statutory basis for awarding compensation for injurious affection. That argument proceeded on the basis that it was only if the 1845 Act was incorporated that such compensation could be awarded. That, for the reasons I have explained, is not correct. While the decision in McKone so held, that was in the context of compensation that did not involve the taking of land, and no distinction was drawn by O'Hanlon J. between statutes that enabled the acquisition of interests in land, and those that did not. The Court instead assumed that they fell to be considered together. That, however, was to disregard the scope of the 1845 Act.
- The trial judge, in examining the provisions of the 1919 Act, may have gone a little further. He attached significance to the mandatory terms of s. 2: 'an official arbitrator shall act in accordance with the following rules...' He also noted r. 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'.
- Heslin J. continued:
'The mandatory term "shall" is employed in s. 2. In other words, the property arbitrator, in assessing compensation payable for the exercise by the ESB of its s. 53 powers, is mandated to do so in accordance with these Rules. In addition to preserving claims for "disturbance" (being the second of the three heads of claim in the CPO context, the first being for the "take") Rule (6) of s. 2 explicitly preserves compensation claims "not directly based on the value of land" (emphasis added). Injurious affection claims are squarely based on the value of land. Thus, the existence of an injurious affection claim seems to me to be entirely incompatible with a mandatory rule in the 1919 Act, which comprises part of the relevant statutory scheme.'
57. The 1919 Act followed the second report of the Scott Committee which, far from suggesting the abolition of compensation for 'injurious affection' recommended the extension of this heading of damage to the intent that any damage resulting from the taking of land would be compensated as a matter of course, and that compensation for damage arising from the construction or use of public works would be compensable on a discretionary basis whether or not any land was taken (this was the only recommendation of that committee that was not adopted in the 1919 Act). It would be odd if the legislation had actually precluded recovery of such compensation, and the trial judge was in error if he intended to so suggest. Having regard to the reliance placed by Heslin J. on the decision in McKone, it may well be that this was not what was intended, and that Heslin J. was merely emphasising that absent the incorporation of the 1845 Act, such an award could not be made. It is clear that by incorporating the 1845 Act and the 1919 Act, a property arbitrator could be required to assess compensation in the form of injurious affection under the latter Act. Once it is understood (as I have found to be the case) that the 1845 Act is not relevant to this case, there is no reason why, if another provision allows recovery of compensation for 'injurious affection' without incorporation of that Act, a property arbitrator appointed under the 1919 Act is, in that situation also, not required to proceed to value that heading of loss.
The resolution of the main issue
- In the light of the foregoing, the central issue can be reduced. It has nothing to do with the 1845 Act or the 1919 Act. Extracting that legislation from the appeal makes it easier to release the debate from the constraints (and I think confusion) arising from the term 'injurious affection'. Instead, the question nets down to whether, when the Oireachtas baldly referred to 'compensation' in s. 53(5) of the 1927 Act, it must be taken as including any depreciation to the value of land owned by the claimant caused by the placing of the line, poles, and pylons on their property (and, if so, of what land precisely). As I have noted, ESB is emphatic in its claim that it should not be so taken: it says that the concept of injurious affection or awarding damages or compensation for injurious affection has no application to the placing of a line on land in contrast to the situation where land is compulsorily acquired. To test whether that is correct, it is necessary to first identify the principle engaged where legislation provides, baldly, for compensation in a context in which rights are obtained over one person's property by another and, second, to determine the extent to which those principles are modified by the particular legislation in issue here.
- I have referred earlier to the 'principle of equivalence'. This is embedded in the presumptive meaning of 'compensation' where that term appears in legislation addressing the compulsory acquisition of property: as explained by Scott LJ in Horn at p. 40:
'the word "compensation" almost of itself carried the corollary that the loss to the seller must be completely made up to him, on the ground that, unless he received a price that fully equalled his pecuniary detriment, the compensation would not be equivalent to the compulsory sacrifice'.
- That decision has, of course, been consistently cited and approved, most authoritatively in this jurisdiction by Keane J., as he then was, in the course of his judgment in Dublin Corporation v. Underwood [1997] 1 IR 69 ('Underwood'). There the question was whether the owner of an investment property was entitled to recover compensation for reinvestment costs where the property was compulsorily acquired from him. In finding that he was, Keane J. equated the compensation to which the dispossessed owner of houses compulsorily acquired by the plaintiff was found entitled, to 'the total loss which he has sustained as a result of the compulsory acquisition' (at p. 129): any other construction of the legislation (he said) 'would be almost impossible to reconcile with the constitutional prohibition of unjust attacks on the property rights of the citizens.'
- Those statements in Underwood proved central to the conclusion in Rafferty v. Minister for Agriculture, Food and Rural Development and ors. [2014] IESC 61, [2020] 2 IR 463 ('Rafferty'). The significance of that case lies in its clear extension of 'the principle of equivalence' to the compulsory destruction (not acquisition) of property other than land. There, the issue arose from the provisions of s. 17 of the Diseases of Animals Act 1966, which enabled the Minister for Agriculture to require the slaughtering of animals in certain circumstances, providing that where this occurred the Minister would 'pay compensation for animals and poultry... which have been slaughtered under this section.' Article 22 of the Foot-and-Mouth Disease Order 1956, provided that where an animal was slaughtered, or a carcass destroyed by direction of the under the Diseases of Animals Acts 1894 to 1954, the value of the animal or carcass should 'for the purposes of compensation, be ascertained by a person appointed by the Minister in that behalf'. The plaintiff was the owner of sheep that were culled in order to prevent the spread of disease and brought proceedings complaining of the compensation awarded to him in consequence. His specific complaint was that he was entitled to consequential losses, which had been disallowed when he claimed them, a decision upheld by the High Court, which found that 'compensation' as used in the statute referred to the market value of the animals slaughtered. The legislation provided no guidelines for what was, and was not, captured by the entitlement of the owner of the slaughtered livestock and, to that extent, the decision is important in framing where the task of ascertaining the meaning of 'compensation' when used in a legislative provision, should begin.
- While noting that an analysis of the term 'compensation' was 'statute specific' (para. 36), Denham CJ continued (at para. 46):
'The term "compensation" in its natural and ordinary meaning is payment for total loss. Thus, in this case the State elected to pay "compensation", which encompasses payment for the total loss, and therefore must include consequential loss to the appellant's business. That is the basis on which the court must approach the issue concerning compensation in this case. Any other approach, in light of the circumstances in this case, as outlined above, would constitute an unjust attack on the appellant's property rights.'
- As a result, the plaintiff was, the Court found, entitled to recover financial loss and damage, including consequential loss and damage associated with the cull of his sheep. So, the plaintiff recovered not merely the market value of the individual carcasses, but also the consequential loss to his business due to the fact that the cull was not equivalent to the sale of sheep stock in the ordinary course of business but was, rather, a sudden and total loss of stock.
- Of course, what is 'loss' and indeed what is 'total' are not merely statute dependent, but are necessarily conditioned by rules of remoteness, of causation, and of reasonableness, these three controls following from the principle of equivalence itself (Director of Buildings and Lands v. Shun Fung Ironworks Ltd. [1995] 2 AC 111, 126, per Lord Nicholls). These, obviously, mirror the principles governing the assessment of damages for common law wrongs. And it is that same regime which generally differentiates the losses that will be construed as falling within the term 'compensation' if it is to be 'total' from those that will not. So, for example, the law will not generally require compensation to the owner of compulsorily acquired property for a 'subjective premium' to reflect the fact that some owners may value their property at more than its market value, whether to reflect sentimental attachments or otherwise. This may, ultimately, reflect the difficulty of assessing such subjective value, but whatever the practical motivation underlying that rule may be, the legal theory is rooted in a distinction between the types of loss for which the common law traditionally afforded compensation, and those for which it did not.
- Similarly, where part of a landowner's property is taken from him or her and the future part of the use so taken may damage the remainder of his land, then such damage may be an injurious affecting of the proprietor's other lands, even though it might not be an injurious affecting of the lands of neighbouring proprietors from whom nothing had been taken for the intended works (Cowper). It has been explained that the distinction arises because in the former situation the owner had standing to oppose a bill effecting such an acquisition before Parliament and, if passed, to compensation for injury caused to his rights from the exercise of the power on the basis that but for the statute, the injury would be a private wrong (Duke of Buccleuch v. Metropolitan Board of Works (1872) LR 5 Ex. 221 at 255 per Montague Smith, Willes and Brett JJ.). A person whose land was not so taken had no locus standi before Parliament, and could only sue and recover compensation where there was a physical interference with some right appertaining to and decreasing the value of his property.
- All of this is well illustrated by Chadwick v. Fingal County Council [2007] IESC 49, [2008] 3 IR 66 ('Chadwick'). The claimants were the owners of a substantial residential property and lands, a very small portion of which (.116 acres) was compulsorily acquired as part of a project involving the construction of a motorway. The acquired lands were not used for the motorway itself: one parcel was converted into an embankment, while the other formed part of an existing roadway. The claimants unsuccessfully sought to assert a right to compensation for 'injurious affection' arising from the depreciation caused to their property by its proximity to the roadway. While the case was determined on the basis of a construction of s. 63 of the 1845 Act (which was accepted as having been incorporated by the relevant legislation pursuant to which the acquisition occurred) and while the Court held (following the decision in Edwards v. Minister for Transport [1964] 2 QB 134) that compensation for injurious affection could issue under that provision only where the injury arose from use or anticipated use of the land that had been taken from the claimant, Fennelly J. explained more generally the theory underlying compensable loss in legislation of this kind.
- Addressing the contention that the exclusion of the losses claimed by the claimants from the scope of s. 63 would render it inconsistent with the Constitution, to the intent that it should be construed so as to avoid that consequence, Fennelly J. explained (at para. 36) 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 claimants had any such right, unless land is taken and used for that purpose. The reason was that what was at stake was 'the non-tortious effect of activities on land not taken'. He explained:
'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.'
68. Fennelly J. continued, observing (at para. 38) that:
'[It]is a constant theme of the authorities that 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 [In re the Stockport, Timperley and Altrincham Railway Co. (1864) 33 LJQB 251] is that, were it not for the passing of the enabling legislation...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.'
- As I have earlier explained, it may be that the 1845 Act reflects, in the case of takings of land, the principle of equivalence by envisaging that all legislation for such compulsory acquisitions will, unless otherwise specified, incorporate ss. 63 and 68, or it may be that the full application of the principle is left to the legislature when deciding whether to expressly apply these provisions. But in a context in which the 1845 Act is not in the picture at all because there is no 'taking' of 'land', and where s. 68 is not in play because the claim is for compensation for injury caused by works on, and the use of, the lands in question themselves, the issue becomes one of first principle. And it must follow from the general consideration of the meaning of 'compensation' to which I have referred above that this is resolved by asking whether and to what extent a right recognised by the law as bound into the ownership of land has been infringed upon by the placing of the line, poles or pylons. If it has, the starting point must be that the term 'compensation' includes a diminution in value of the property holding across which the line runs, and on which the poles and pylons are located by reason of the statutory imposition of that 'burdensome right'.
- That, also, is supported by the English cases. Both ESB and the trial judge attached importance to remarks of Briggs LJ in Arnold White which, it was suggested, supported the conclusion that compensation for 'injurious affection' was not available in respect of the creation of rights of the kind provided for in s. 53. The relevant passage was as follows:
'... from 1845, the relevant statutory provisions contemplated compensation for compulsory purchase as falling into two quite different classes than those contemplated by paragraph 7 of Schedule 4 in relation to wayleaves. The division adopted in relation to compulsory purchase is into two classes: (1) compensation for the value to the owner of the land taken and (2) compensation for injurious affection to his other land: see per Scott LJ in the Horn case [[1941] 2 KB 26] at page 43. In relation to wayleaves, the two types are (1) compensation in respect of the grant and (2) compensation for damage or disturbance by the exercise of the rights granted. There is in reality no land taken or other land retained in a wayleave case because, in sharp contrast to compulsory purchase, no land or interest in land previously vested in the owner is compulsorily acquired at all. A wayleave may itself be an interest in land, but it comes into existence for the first time by virtue of the grant.'
- While the trial judge was inclined to view this statement as supporting his conclusion that compensation for 'injurious affection' could not be recovered in electric line cases in fact, the decision in Arnold White itself (where the point was whether the amount of compensation payable to the owner of the land traversed by an electricity line should be measured by reference to the price payable under a conditional contract or the substantially lower open market development value of the land at the time of the grant of the wayleave) shows that the Court in awarding compensation under Schedule 4 to the 1989 Act is focussed on the principle of equivalence, and the depreciation to the entire reference property the subject of the claim (it was held that the proper level of compensation was, in fact, the contract price). The United Kingdom cases uniformly hold that the question is whether the line has had an effect on the value of the property holding across which the line travels at the time. The cases are gathered together and recited in Stynes, but the following passages from the judgment of Thomas LJ in Welford are equally applicable to the 1927 Act:
'The statutory provisions under paragraph 7 of Schedule 4 which provide for compensation for the grant of a wayleave make no express reference to the basis on which compensation is payable under sub-paragraphs (1) or (2) in contradistinction to the provisions in respect of compensation for the grant of an easement under Schedule 3; the latter paragraph expressly applies the provisions relating to the compulsory acquisition of land.
However, there was no dispute before us as to correctness of the general approach which, as set out at paragraph 10 above, had been taken by the Tribunal. Although paragraph 7 to Schedule 4 expressly distinguishes between compensation under sub-paragraph (1) for diminution in the value of the land and under sub-paragraph (2) for disturbance, the compensation payable under the whole of paragraph 7 is to be assessed on the general principles applicable to the payment of compensation for compulsory acquisition which recognises these two separate heads as elements of the claim for compensation - injurious affection and disturbance. The distinction drawn in paragraph 7 of Schedule 4 is a necessary distinction in relation to compensation for the grant of a wayleave for a fixed period to enable occupiers and owners of chattels to recover compensation for disturbance.'
(emphasis added).
- These passages, and indeed the United Kingdom cases generally, show an ambiguity inherent in the phrase 'injurious affection' when it is sought to apply it to cases of this kind - which is perhaps why Briggs LJ in Arnold White stepped away from the term. In Welford, Thomas LJ was explaining that, absent any further elaboration, the term 'compensation' had - consequent upon the 'principle of equivalence' - a meaning that required that compensation 'in respect of the grant' include a heading commonly described as 'injurious affection'. It is clear that by this was meant the 'diminution in the value of the land in consequence of the grant of the wayleave' (para. 5(i)). The right of the claimant to that was not disputed before the Court of Appeal. It was valued on the basis of the diminution in value of the entire site through which the wayleave ran.
- In Stynes, the question was whether the claimant could recover compensation for damage to her property caused by the presence of a pylon just outside it. It was accepted that she was entitled to compensation for 'injurious affection' to her land caused by a line that ran through her garden from the pylon. While a claim for compensation for damage caused by the pylon was also described as 'injurious affection', it was of a fundamentally different kind as it did not result from the grant of any wayleave across her property, but from the presence and use of a structure outside it. The claimant sought to contend that she was entitled to compensation for that heading of 'injurious affection' by reason of the combined effect of s. 63 of the 1845 Act and s. 44 of the Land Compensation Act 1974 or the principle of equivalence. The first part of this argument failed for reasons I have explained earlier in this judgment (the grant of the wayleave did not involve the taking of an interest in land). The second part failed because the statutory entitlement to compensation was only in respect of damage arising from the grant, and that meant the grant of the wayleave. The principle of equivalence does not, it said, generate a right to be compensated for losses that do not flow from the grant of the necessary wayleave (para. 85).
- However, the Upper Tribunal made clear in the course of its ruling that it accepted a firm and consistent body of authority from the Lands Tribunal that under Schedule 7, a claimant was entitled to claim for a diminution in value of 'the subject property' caused by the presence on that property of the line (Turris Investments Ltd. v. The Central Electricity Generating Board [1981] 1 EGLR 186 at p. 188; Macleod v. National Grid Co plc [1998] 2 EGLR 217 at p. 230). In second of these cases, the approach was explained as follows:
'Although compensation for the grant of a necessary wayleave is to be determined by reference to para. 7 of Schedule 4 to the 1989 Act, this provides for the recovery of "compensation in respect of the grant." A fundamental principle of compensation is equivalence .... It follows therefore that Mr. Macleod is entitled to compensation for all the loss (that is not too remote), that flows from the grant of the necessary wayleave. This includes direct loss due to the siting of the pylons and line on the land and indirect loss due to the depreciation in value of the reference land that is not under the pylons and line...'
(emphasis added)
- That is the context in which the comments in Arnold White I have quoted above were made. Briggs LJ was certainly saying that the concept of 'injurious affection' as that term is used in the 1845 Act had no relevance to a claim under Schedule 4: that follows inevitably from the fact that there is neither a taking for the purposes of s. 63, nor a situation in which a landowner claims for damage to his property by works outside it, as was envisaged by s. 68. But he was not saying that a claimant could not obtain compensation for damage comprising the devaluation of his land holding caused by the presence of a line across it. On the contrary, that is precisely what was viewed as being comprised in the compensation payable 'in respect of the grant'. That is why the respondent in that case accepted that compensation based on 'the destruction of the development value of the pylon land' was recoverable in such cases (see para. 25).
- I find the logic of these cases compelling, and while anxious to again stress that they involve a different statutory structure, their reasoning comfortably transfers across to the scheme introduced by s. 53. First, they are based on the principle of equivalence, and to that extent reflect the starting point mandated in this jurisdiction by the decisions in Underwood and Rafferty: while both of those cases refer extensively to the relevant constitutional protections, their rationale can be located wholly in the common law as applied to the construction of the word 'compensation'. Second, the relevant language of the applicable provisions is sufficiently similar to justify adopting this reasoning here: the compensation right under s. 53(5) is framed in respect of 'the exercise by the Board ... of the powers', while that in Schedule 4 is 'in respect of the grant'. Third, I feel that counsel for the O'Reillys was correct in observing an illogicality in ESB's case: while protesting against 'injurious affection' as a head of damage, and while stressing (correctly, as I have found) that the exercise of the s. 53 powers did not involve taking an interest in land, ESB accepted that s. 53 entailed compensation arising from the impact of the line on lands in a corridor along the line, but which lands the line itself did not touch.
- While this means that ESB's characterisation of the nature of the power conferred by s. 53 was correct, and while it was also right in suggesting that neither s. 63 nor s. 68 of the 1845 Act applied to the compensation provision in s. 53(5), it was not correct in the conclusion it urged as flowing from the fact that no land was 'taken'. The issue was, instead, more confined: did the reference to 'compensation' in the provision - removed from the shadow of the 1845 Act - include or exclude injury to land other than the specific property on which the pylons or poles were located and the narrow strip of land beneath the wires? It follows from the principles and authorities I have outlined above is that the correct answer is that it included them, and that had the Oireachtas intended to otherwise provide, it was necessary for it to do so expressly. A person across whose land an electric line is placed pursuant to s. 53 is entitled to be compensated for a diminution in value of the lands the subject of that burdensome right. As apparent from paragraph 30 above, the common law cases suggest that this means the entirety of the land holding across which the line travels, and the cases from the United Kingdom dealing with electric lines frame this by reference to the 'reference property'. It does not mean any other lands owned by the relevant claimant. The question of what lands comprise the subject property is, in a case of dispute, a matter for the Property Arbitrator as is the assessment of any consequent devaluation.
Gormley
- As I have earlier noted, all parties made submissions regarding the decision of the Court in Gormley and its effect on the proper interpretation of the section. The Attorney General appeared through counsel at the hearing of the appeal and assisted in navigating the constitutional issue that thus arose. However, the Court in Gormley did not address itself to the question of what compensation was required where the s. 53 powers were exercised by ESB, and it therefore cannot be said that the Oireachtas, when amending s. 53(5), was adopting any particular method of compensation in order to give effect to the Court's decision. Without a doubt, as the O'Reillys stressed, the judgment of the Court referred to the impact of the pylons in issue in that case upon the amenities of the plaintiff's house, yet, as ESB was inclined to emphasise, it also stated the need for 'adequate' (not 'full') compensation. The Court might be thought to have suggested that whatever compensation fell within the description 'adequate', the modest ex gratia sums offered by ESB to landowners at the time came within it, as Finlay CJ seems to have been at some pains to point out that the provision of compensation to landowners would not result in any significant additional cost to ESB. And at no point did the Court say that compensation was constitutionally required in respect of the exercise of the power vested by s. 53(9) - the conclusion that no compensation was necessary in relation to the power to lop trees under s. 98 (as the Court found) would strongly suggest that it was not. So, while it is tempting to suggest that the 'compensation' to which reference is made in s. 53(6) is the compensation the Court found in Gormley to be required by the Constitution (or for that matter, only the compensation that was in fact required by the Constitution) the Court cannot approach the matter of construction in this way. It must be assumed that the Oireachtas was legislating to provide a particular measure of compensation rather than enabling only whatever form of compensation the Court ultimately concluded was mandated by the Constitution.
- The Court must, accordingly, now seek to construe the word 'compensation' as it appears in the section in its own terms while having regard to its purpose or context. As I have explained, that exercise in construction leads to the conclusion that a landowner is, in respect of the exercise of powers under s. 53, entitled to be compensated for any diminution in value of the holding traversed by the line caused by the line or supporting poles or pylons. Had the Oireachtas intended to limit the right to compensation beneath the floor fixed by the principle of equivalence, it was necessary for it to do so expressly. Having chosen instead to simply confer a right to 'compensation' without either elaboration, or qualification, it must be understood to have intended to implement the well-established meaning of that term.
- Nonetheless, the decision in Gormley was the subject of detailed argument in this appeal, and it is appropriate to address it. As I now explain, there is nothing in Gormley, or for that matter any other decision of the Court interpreting the property guarantees in Article 40.3 or Article 43 of the Constitution, to support the general proposition advanced by the O'Reillys in the course of argument, and rejected by ESB and the Attorney General, that the Constitution mandates that the placing of pylons or an electric line across lands entitles the owner of property to be paid compensation for 'injurious affection' as the parties have used that term.
- The definition of, and delineation of permissible interferences with, constitutional property rights is notoriously complex. The same is true of the specification of those circumstances in which interferences with those interests will require compensation, from those that will not, and indeed of the identification of the headings of compensation that are constitutionally required for particular impairments of specific entitlements. These complications follow from the range of property interests it has been suggested are protected by those guarantees, spanning as they do a horizon that has been said to extend from unencumbered rights in real property, to contractual rights, choses in action, money, personal property, intellectual property, statutory licences, shares, development consents or cognate entitlements, and, at least according to some of the cases, rights in an occupation or business together with the right to litigate (see, in particular, the description of the scope of constitutionally protected property interests in the judgment of Hardiman J. in Dellway and ors. v. National Asset Management Agency and ors. [2011] IESC 14, [2011] 4 IR 1, 287). They are, further, products of the range of possible limitations arising from state action, from outright and legally compelled acquisition of those rights, or where applicable their extinguishment, to lesser impairments, qualifications, or interferences. Every case presenting the questions of whether compensation is constitutionally required and, if so, what level of compensation must be provided thus confronts an involved calculus requiring an assessment of the relationship between up to seven variables: (a) the nature of the interest in play, (b) the rights commonly attached to ownership of that interest, (c) the extent of the interference, (d) the reason for the impairment, (e) whether the 'property' right is in truth a right, or some form of revocable statutory privilege (and indeed whether part of the value of the property is within the gift of the legislature or is affected by decisions made by or on behalf of the State in the exercise of statutory powers), (f) whether compensation of some form is provided consequent upon the interference, and (g) where compensation is provided for whatever it is the State has done, how it is calculated.
- That this exercise falls to be conducted against a background of case law that presents what Professor Walsh has described as 'a high level of doctrinal uncertainty' does not lessen the complication. Nonetheless, I think that in striking the right relationship between these factors, the following can be said:
(i) Obviously, the State must have good reason for the compulsory acquisition of, or legislative interference with, a person's property rights, and the extent of the interference with those rights entailed by the measure by which it is implemented must be reasonable and proportionate to that objective. In deciding whether there is such a proportionate relationship, the fact and extent of the compensation provided by the State in respect of that interference, will often be key. Compensation or no compensation, arbitrary deprivations of property will for that reason alone be invalid: Blake v. Attorney General [1982] IR 117. In a similar vein it has been found that the imposition upon one section of the community of the cost of achieving particular social objectives - however desirable - breaches these same guarantees (Re Article 26 and the Employment Equality Bill 1996 [1997] 1 IR 321 ).
(ii) There is a strong presumption that, in order to be constitutionally valid, a statutorily authorised compulsory acquisition of all of the elements that constitute a full property right in an asset must, as well as being supported by a valid objective in the public interest, be accompanied by some compensation. There has never been a case in which such a forced divestment of ownership of all of the rights comprising such property without any compensation has been upheld (see in particular Central Dublin Development Association v. AG (1975) 109 ILTR 69, 86). This principle has been applied not only to real property, but to the negation of the rights enjoyed by the holder of a chose in action (Re Article 26 of the Constitution and the Health (Amendment) (No.2) Bill 2004 [2005] 1 IR 105).
(iii) The cases present 'market value of the acquired property' as the usual benchmark for constitutionally valid compensation on an outright acquisition of all of the rights associated with ownership of property (Re Article 26 of the Constitution and Part V of the Planning and Development Bill 1999 [2000] 2 IR 321). That said, while the position of the Court as to the obligation to pay compensation of some kind where there has been an outright taking of property has been consistent, its position as to what compensation is required has arguably varied. In Dreher v. Irish Land Commission [1984] ILRM 94, 96 Walsh J. observed that it did not necessarily follow that the market value of lands, at any given time, is the equivalent of just compensation and that 'there may be circumstances where it could be considerably less than just compensation and others where it might in fact be greater than just compensation.' In In Re Article 26 of the Constitution and the Planning and Development Bill 1999, Keane CJ suggested obiter, and citing Dreher, that there would be circumstances in which the following were constitutionally mandated:
'the additional elements of compensation payable in compulsory acquisitions of land effected under the Land Clauses Consolidation Act, 1845, as determined under the Acquisition of Land (Assessment of Compensation) Act, 1919, as subsequently amended, by virtue of which the landowner is to be compensated, not merely for the market value of his land, but also for such additional elements of damage to him as disturbance, injurious affection and severance.'
(iv) Where there is such a divestment of property and the compensation provided is not market compensation, there is case law from the Court of Appeal suggesting that the courts will rigorously test the reason for this: 'any departure from the principle of market compensation would have to be subject to the principle of strict scrutiny and the principles of proportionality' (Dowling v. Minister for Finance [2018] IECA 300 at para. 139).
(v) However, it must be stressed that none of the cases out-rule the possibility that even where there has been a compelled divestment of all of the rights comprised in a property, there will be situations in which the Constitution does not mandate 'total loss' compensation as defined by the common law or statute. The statements of Keane CJ in In Re Article 26 of the Constitution and the Planning and Development Bill 1999 I have just quoted were, as I have noted, obiter and the question of whether they apply in all circumstances where there is an outright acquisition of property should be viewed as an open one.
(vi) The position where the law imposes a restriction on the exercise of only some of the rights comprising ownership of an item of property is different. Here, it has been observed that 'restrictions on the exercise of property rights falling short of deprivations are rarely invalidated by the courts.' In this context, there is an unsurprising correlation between the strength of the public interest that is invoked to justify the impairment of a property right, and the extent of the restriction that may be permissibly imposed on the exercise of that right.
(vii) In that regard it has been suggested that compensation will be required not merely where there is an acquisition or extinguishment of all rights of property in an asset but wherever there is a 'substantial encroachment' on those interests (Re Article 26 of the Constitution and the Health (Amendment) (No.2) Bill at p. 201). Where what is involved is a restriction on the exercise of only some of the rights comprising ownership of an item of property, the question of whether there is an entitlement to compensation (and, it must be presumed similarly the question of what compensation must be provided) will thus - again, obviously - depend on the nature and extent of the restriction. But this may also depend on other attendant circumstances (such as the regulatory context in which the restriction is imposed, the knowledge of the owner of the fact of, or potential for, such restrictions when acquiring the property and the reason for the restriction).
(viii) It follows that there will be circumstances in which legislation effecting a limited interference with property interests that is underpinned by a strong public interest may be upheld as constitutionally valid even though no provision is made for compensation. In Gormley it was decided both that the plaintiff had a right to be compensated where the ESB exercised the power conferred by the former iteration of s. 53(5), but no right to be compensated where it exercised its power under s. 98 to lop trees or other obstructions to the laying of the wires. The first of these limited the owner's right to use the land, the second was viewed as de minimis. In O'Callaghan v. Commissioners for Public Works [1985] ILRM 364, it was found that provisions enabling the imposition of restrictions on the user of land arising where property was the subject of preservation orders under the National Monuments Act 1930 but where there was no compensation, were not unconstitutional. The important objective of that legislation was stressed by the Court. O'Callaghan has been explained as a decision referable to the knowledge of the owner of the property that there was a monument on the land before he purchased it (Re Article 26 of the Constitution and the Planning and Development Bill 1999 at p. 352), but it will be observed that the decision comprised a challenge to the constitutional validity of the provision, and that the relevant section was upheld substantively, generally and not necessarily on the basis of the particular circumstances of the plaintiff. Outside the realms of real property there are cases in which compelling public interests were found to justify significant interferences with property rights where no compensation was provided (see J&J Haire & Co. Ltd. v. Minister for Health [2009] IEHC 562 and Unite the Union v. The Minister for Finance [2010] IEHC 354).
83. Counsel for the Attorney General, in the course of her helpful submissions, made the essential point that follows from this summary well: there is a spectrum that moves towards total loss compensation in the case of the extinguishment of a property right, and along that spectrum there are points where compensation is required, but where that compensation does not have to be total loss compensation. There is, as she put it, a tilting point at which one moves from no compensation to compensation. The closer one moves towards the end of that spectrum the more the restriction may require not merely compensation, but total loss compensation. I agree with this analysis. As I have noted, the case law affords examples of restrictions upon, and interferences with, property interests that do not attract compensation at all. These decisions are best reconciled with those in which compensation has been mandated, by an approach of this kind.
84. Bearing the foregoing in mind, there are powerful reasons for concluding that the exclusion of compensation for 'injurious affection' of the kind contended for by the O'Reillys would not be inconsistent with these principles. While - as is clear from my earlier consideration of the authorities - in some cases 'injurious affection' may arise where the claimant's land is taken and may thus reflect the diminution in the value of retained property consequent upon that taking, in this case there is no taking of property in this sense. Instead, the 1927 Act imposes a restriction on the use of part of the property of the landowner accompanied by occupation of a small area by the pylons and pole sets, together with the air space between them. The justification for that restriction is overwhelming. The owner's rights vis-à-vis the property are largely maintained. They can continue to access, and to use the land under the line, and it has obviously been decided in Gormley that they are entitled to some compensation for the limitations on their rights that have been imposed. While Underwood, Chadwick and Rafferty speak of the principle of equivalence in constitutional terms, none of the authorities were addressed to the relationship between constitutional property rights and an asserted diminution in value to land caused not by compelled acquisition, but by an imposition which causes a damage for which - at least in part - others, when they experience it, have no right to seek compensation. None of these cases demand a perfect equation between that compensation mandated by the Constitution for interferences with property interests, and the compensation enabled by the vagarious developments of the common law.
85. If any aspect of the principle of equivalence is a candidate for excision from the categories of compensation required by the Constitution where there is a legislatively imposed restriction on property rights, it is 'injurious affection'. While counsel for the O'Reillys was correct in stressing that 'injurious affection' was not introduced by the 1845 Act, it seems to have originated in legislation shortly before that. As I have noted earlier, the 1845 Act itself was geared to the interests at that time of, and was orchestrated by, a politically influential landowning class, and that legislation involved a balance not between those landowners and the State as a whole, but between their interests and those of railway entrepreneurs. Moreover, there has always been a pragmatic and practical justification for generous compensation when property is compulsorily acquired. There are good reasons for not unthinkingly treating the settlement reached between those particular interests almost two centuries ago as defining the scope of those rights of property protected today by the Constitution, and it is a mistake to reflexively convert pragmatic compromise into constitutional entitlement, at least where the issue arises from the legitimate demands of the community as a whole. The very fact that, historically, legislation has either not adopted or excluded ss. 63 or 68 of the 1845 Act shows that, traditionally, the exclusion of such losses has been tolerated by the law. The case for doing so in a context in which no property is taken, and in which instead a statutory burden is imposed in order to enable the transmission of an energy resource that is vital for all members of the community, is particularly strong.
86. The most striking feature of 'injurious affection' is the extent to which this heading of loss can operate in a random and unfair manner, potentially placing those who are the owners of certain property interests at a significant advantage to others for reasons that are not necessarily related to the injury they have exclusively sustained as a consequence of public works. Chadwick shows this, and that the accidental allocation of land to folios or joint or several ownership can affect those entitlements is well demonstrated by Heslin J. in the course of his judgment. Indeed, reporting over a century ago the Scott Committee observed that the manner in which injurious affection operated 'inflicts substantial injustice on the owner whose land is not taken' (para. 48 of its second report). Landowners may find the amenity of their property seriously affected by development on adjacent property but have no right to any compensation unless some of their property has been taken. On the other hand, those whose land has been taken will obtain compensation, potentially for precisely the same interference, the amount of their compensation increasing in proportion to the size of their property holding. The view from Ms. Gormley's residence may have been diminished in quality by reason of the presence of pylons at the end of her garden, but the proposition that she obtains compensation to reflect the consequent diminution in value of her home while her neighbours, although finding the aspect of their homes similarly diminished obtain no damages, may reflect the occasional arbitrariness of the common law: it requires some justification to convert that into a constitutional entitlement.
87. While the Scott Committee recommended the expansion of this heading of compensation to cover the position of the landowner whose property has suffered from adjacent works, but has had nothing 'taken', the Court has already found in Chadwick that the Constitution does not require that extension. Nor can it conceivably demand the maintenance of rights that effect arbitrary unfairness. The touchstone for all property rights challenges is, as the Court made clear in Blake and as it has repeatedly been stressed since then, whether there has been an 'unjust' attack on the rights involved. In my view, the exclusion of 'injurious affection' as the parties have used that term from the compensation required to be paid to those property owners on whose lands electricity pylons and poles are imposed pursuant to s. 53, and across whose holdings electricity wires must travel would not be 'unjust' within the meaning of the Court's case law negotiating the property rights provisions of the Constitution. This follows from the significant public interest in play, the limited interference with property rights arising where powers of the nature in issue here are invoked, and the sometimes random if not accidental manner in which some property owners can obtain such compensation at common law, while others cannot. The State can undertake projects that increase the value of private property, just as by engaging other activities it can cause that value to be reduced. It is not required by the Constitution to compensate for all fluctuations in value arising from those actions, and where (as is the case with the provisions in issue here) it acts to implement measures that are critically necessary in the public interest without depriving landowners of the essential features of property ownership, it should not be assumed that the Constitution mandates the payment of all components of the compensation that has been historically demanded by the common law for 'takings' of property.
The s. 53(9) issue
- I agree with Heslin J.'s conclusion that the Arbitrator erred in awarding compensation under s. 53(5) for 'injurious affection' for future access to the lands under s. 53(9). That provision is as follows:
'Where the Board or an authorised undertaker is authorised by or under this section to place or retain any electric line across any land or to attach or retain any fixture on any building the Board or such authorised undertaker (as the case may be) may at any time enter on such land or building for the purpose of placing, repairing, or altering such line or such fixture or any line or apparatus supported by such fixture' (emphasis added).
- Section 53(5) frames the entitlement to compensation for which it provides not by reference to the existence of the power under s. 53(9), but its invocation: the relevant language is 'compensation in respect of the exercise by the Board ... of the powers conferred by subsection (9) of this section ..' (emphasis added). The provision is clear, and its meaning as a matter of simple statutory interpretation is beyond doubt. The powers provided for by the section might, or might not, be exercised in the future. If they are, the landowner is entitled to compensation for loss consequent upon that exercise. While there is nothing wrong in legislating for compensation in the form of a once-off payment made before there is any such exercise, and while one would expect that such compensation would be small (and reflecting the likelihood of the power being exercised) this is not what the legislature has provided.
- It follows that the proper analysis of this issue was that the right to compensation (if any) consequent upon an exercise of the powers conferred by s. 53(9) fell to be decided when, and only when, those powers were actually exercised. There was no basis for valuing them in advance of their invocation. The Arbitrator in so doing erred in law and, on that basis alone, his award should be quashed.
The procedural issue: the cross-appeal
- In the second part of his judgment, Heslin J. proceeded to address the distinct questions giving rise to ESB's cross appeal. That was prompted by the provisions of s. 5 of the 1919 Act. It provides, essentially, for a procedure whereby the acquiring authority can reduce its exposure to costs by making an offer of compensation to the claimant. It is as follows:
'5.—(1) Where the acquiring authority has made an unconditional offer in writing of any sum as compensation to any claimant and the sum awarded by an official arbitrator to that claimant does not exceed the sum offered, the official arbitrator shall, unless for special reasons he thinks proper not to do so, order the claimant to bear his own costs and to pay the costs of the acquiring authority so far as such costs were incurred after the offer was made.
(2) If the official arbitrator is satisfied that a claimant has failed to deliver to the acquiring authority a notice in writing of the amount claimed by him giving sufficient particulars and in sufficient time to enable the acquiring authority to make a proper offer, the foregoing provisions of this section shall apply as if an unconditional offer had been made by the acquiring authority at the time when in the opinion of the official arbitrator sufficient particulars should have been furnished and the claimant had been awarded a sum not exceeding the amount of such offer.
The notice of claim shall state the exact nature of the interest in respect of which compensation is claimed, and give details of the compensation claimed, distinguishing the amounts under separate heads and showing how the amount claimed under each head is calculated, and when such a notice of claim has been delivered the acquiring authority may, at any time within six weeks after the delivery thereof, withdraw any notice to treat which has been served on the claimant or on any other person interested in the land authorised to be acquired, but shall be liable to pay compensation to any such claimant or other person for any loss or expenses occasioned by the notice to treat having been given to him and withdrawn, and the amount of such compensation shall, in default of agreement, be determined by an official arbitrator.
(3) Where a claimant has made an unconditional offer in writing to accept any sum as compensation and has complied with the provisions of the last preceding subsection, and the sum awarded is equal to or exceeds that sum, the official arbitrator shall, unless for special reasons he thinks proper not to do so, order the acquiring authority to bear their own costs and to pay the costs of the claimant so far as such costs were incurred after the offer was made'
(emphasis added).
92. Here, the chronology is central. The O'Reillys submitted their claim to ESB on 25 May 2018. That claim was for a total of €172,400. ESB made an unconditional offer on 9 January 2019 in the amount of €5,555. On 17 January 2019 the Respondent was appointed as Property Arbitrator, and on 22 January 2019 he directed that expert reports 'should be exchanged between the parties not less than 14 days prior to the hearing'. In a decision communicated on 17 February 2019, the Arbitrator concluded that the original claim met the requirement of s. 5(2) of the 1919 Act in that it was sufficiently particularised. The O'Reillys did not deliver their expert reports 14 days prior to the hearing, and on 10 May 2019 ESB advised the Arbitrator that it was ready and waiting to exchange reports with the O'Reillys. The O'Reillys delivered their reports on the evening of 14 May 2019, the hearing commencing the following day.
93. In those reports, the O'Reillys advanced additional claims, in particular: (a) a claim for loss of sites was introduced in respect of wayleave 112, (b) a claim concerning a fibre optic cable was introduced in relation to both wayleave 112 and 113, (c) a claim for injurious affection to site potential along residual road frontage regarding wayleave 113 was introduced, and (d) the O'Reillys made a claim in relation to the application of S.I. No. 337/2016 Safety, Health and Welfare at Work (Electromagnetic Fields) Regulation 2016 ('the Regulations'). The total compensation sought was €160,139 (which it will be observed was lower than that submitted a year previously).
94. At the hearing on 15 May 2019, ESB stated that it was not prepared to meet the new claims, and in the submissions delivered by it on 12 June 2019 it objected to the jurisdiction of the Arbitrator to entertain unpled claims, urging that the Arbitrator should exclude the new claims. Before the High Court, ESB rooted the prejudice it said it had sustained as a consequence of the new claims firmly in the unconditional offer procedure provided for in s. 5 of the 1919 Act: it said that it had put in an unconditional offer based on the claim in accordance with the procedure provided for in the 1919 Act. It should not be possible to 'shift the goalpost later and try to make the unconditional offer less valuable to the ESB by inflating your claim'.
- At the hearing on 15 May 2019, ESB did not make any application for an adjournment (whether based on the contention that, in light of the additional claims received on 14 May 2019, it wished to give consideration to the making of an increased unconditional offer, or on the basis that any other prejudice was perceived to arise e.g. in terms of ESB's ability to tender evidence on 15 May 2019in opposition to the increased claims). ESB never sought to put an increased unconditional offer with reference to the increased claims. All claims, original and additional, were addressed in evidence by expert witnesses on both sides
- The Arbitrator made clear in his awards that he did not take the Regulations into consideration or place any value on the laying of the fibre optic cable (stating, at para. 9.5: 'I have not taken into consideration the effects of the Electromagnetic Fields Regulations 2016 as they are post the valuation date, nor have I placed a value on the fibre-optic cable....'). With respect to the claim for loss of development value, the property Arbitrator made a ruling at the hearing (which has not been challenged) that the Notice Parties' valuer was entitled to review his valuation following engagement with the Applicant's (i.e. ESB's) valuer and on consideration of the planning evidence. At no stage did any witness proffered by ESB assert that they were prejudiced as a result of the late delivery of additional claims or that they could not address all claims by means of their evidence. In the course of the hearing before the Property Arbitrator, Mr. Boyle - ESB's valuer - after confirming that he and Mr. Tuohy (the O'Reillys' valuer) had engaged on around five occasions when they discussed a number of cases, including the present one, said the following in response to a question from counsel for the O'Reillys:
'Q: You also agree to me, it is not in the nature of Mr. Tuohy to deal with you other than fairly, professionally and you have no complaint whatsoever, that you were prejudiced on any information gave to you or didn't give to you at those meetings?
A: I would say myself and Mr. Tuohy have a good working relationship' (emphasis added)
97. Based on the foregoing, Heslin J. concluded that while the procedural discretion vested in the Property Arbitrator by Article 5(3) of the Acquisition of Land (Assessment of Compensation) Rules 1920 made pursuant to the 1919 Act had to be exercised fairly and in accordance with the principles of constitutional justice, ESB had not established that the contrary occurred. That was, in my view, clearly correct. It was open to ESB to apply for an adjournment, or to deliver a new offer. Indeed, it was decided in McCarthy v. ESB [2021] IEHC 501 that where a claim changes, the acquiring authority is entitled to make a fresh unconditional offer. O'Moore J. put the context well, clearly, and in my view correctly (at para. 31):
'It is almost inevitable in the course of any claim (whether it be a personal injuries claim, a commercial claim, or a claim of the nature provided for in the 1919 Act) that things can change during its gestation. New facts become available, new analysis is carried out, fresh vouching documents are provided by the Claimant. Any of these could lead to a radical reappraisal of the amount a claim is worth. It would be completely at odds with the intention of the legislature in enacting Section 5(1) that the acquiring authority will be confined to one shot at goal during the whole of the match. If anything, the sense of the provision is that the acquiring authority should adjust its offer if and when it sees the need to do so, as this is consistent with the whole purpose of the Section which I have outlined already.'
98. Here, ESB staked its position on being able to resist the new particulars and must be deemed to have taken the risk that the Property Arbitrator would, as he was entitled to do so, permit them. In reaching such a decision, the Arbitrator was acting within the limits of his procedural discretion. None of this involved any interference with ESB's right to fair procedures. The cross appeal should, accordingly, be dismissed.
Conclusion
(i) ESB is correct when it contends that the exercise of the powers conferred by s. 53 of the 1927 Act do not give rise to the transfer or creation of interests in land. While the exercise of the powers under s. 53 results in the imposition of a burdensome right on the property owner, it does not give rise to the transfer of any interest in land.
(ii) Therefore, there is no basis on which it can be said that the provisions of the 1845 Act are automatically incorporated into the procedure for the ascertainment of compensation enabled by s. 53 of the 1927 Act.
(iii) Moreover, s. 63 of the 1845 Act is applicable only where 'land' is 'taken' while s. 68 operates only where injury is caused to the claimant's land by works outside that land. It follows that no significance can be attached to the fact that the Oireachtas, in enacting s. 53(5) of the 1927 Act did not expressly either incorporate or exclude these provisions.
(iv) The trial judge was in error if he found that the 1919 Act operated in any way to preclude a claimant from seeking compensation for what has been termed 'injurious affection', but which I am referring to here as depreciation to the value of their holding caused by the presence on the O'Reillys' lands of the electric line and supporting poles and pylons.
(v) Presumptively, the word 'compensation' when it appears in legislation should be construed as embodying the principle of equivalence. That means that, presumptively, s. 53 enables the recovery of compensation to reflect a depreciation in the value of the land holding the subject of the burdensome rights provided for by s. 53 caused by the compulsory imposition of those rights.
(vi) There is nothing in text, purpose or context of s. 53 to displace that presumption. Indeed, once one excludes compensation for disturbance, all the compensation enabled by s. 53 is, on ESB's own case, in the nature of 'injurious affection'. In the absence of an express legislative stipulation to that effect, there is no logical reason for limiting the compensation payable under the section to the value of the arbitrarily proportioned strip beneath the line. As it was put in one of the English cases, the loss in question includes direct loss due to the siting of the pylons and line on the land and indirect loss due to the depreciation in value of the subject land that is not under the pylons and line.
(vii) None of the authorities demand a perfect equation between the compensation mandated by the Constitution for interferences with property interests, and the compensation enabled by either the vagarious developments of the common law, or by the provisions of early Victorian legislation governing the compulsory acquisition of property.
(viii) The limitation of compensation for the imposition of the rights provided for in s. 53 to exclude losses in the form of devaluation of property by reason of injurious affect would not, in my view, be constitutionally invalid.
(ix) Nor is compensation in respect of the exercise of the powers conferred by s. 53(9) mandated by the Constitution.
(x) The trial judge was, however, correct to conclude that the Arbitrator had erred when he fixed compensation for anticipated exercise of the power of re-entry: the compensation enabled in respect of the powers provided for in s. 53(9) of the 1927 Act arises - on the plain wording of the relevant provisions - when the power to enter is exercised.
(xi) Heslin J. was also right to dismiss ESB's cross-appeal: the Arbitrator was fully entitled to decide to admit the new particulars delivered by the O'Reillys and, in circumstances where ESB could have - but did not - apply to adjourn the proceedings or seek to put in an increased offer, there was no breach of its rights to fair procedures thus arising.
99. Accordingly, the O'Reillys' appeal should be allowed insofar as the trial judge erred in finding that compensation under s. 53(5) of the 1927 Act did not encompass compensation for depreciation in the value of the entire land holding the subject of the burdensome rights provided for by s. 53 caused by the imposition of those rights. The O'Reillys' appeal against that part of the High Court decision that ruled that the Arbitrator had erred in awarding compensation to reflect the rights provided for in s. 53(9) is dismissed. ESB's cross-appeal is also dismissed. It will be a matter for the Arbitrator to determine the compensation to be awarded de novo, but they together with the valuers retained by the respective parties should have regard to this judgment not merely in its confirmation that compensation comprising depreciation of the kind to which I have referred is available, but also to the fact that the theory by which I have reached that conclusion reflects that adopted in the United Kingdom. In that jurisdiction (while of course noting that there are some differences in the governing legal regime) a substantial body of law has developed around the correct valuation methodology in cases of this kind, that being a context in which there is, as I have decided in this judgment, no taking of an interest in land.