Argyle Motors (Birkenhead) Ltd v Mayor, Etc., of Birkenhead
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Hodson,Viscount Dilhorne,Lord Diplock,Lord Kilbrandon |
| Judgment Date | 11 December 1973 |
| Judgment citation (vLex) | [1973] UKHL J1211-1 |
| Date | 11 December 1973 |
| Court | House of Lords |
[1973] UKHL J1211-1
House of Lords
Lord Wilberforce
Lord Hodson
Viscount Dilhorne
Lord Diplock
Lord Kilbrandon
Upon Report from the Appellate Committee, to whom was referred the Cause Argyle Motors (Birkenhead) Limited against Mayor, etc., of Birkenhead, that the Committee had heard Counsel, as well on Monday the 12th, as on Tuesday the 13th and Wednesday the 14th, days of November last, upon the Petition and Appeal of Argyle Motors (Birkenhead) Limited of 12 Conway Street, Birkenhead in the County of Chester praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 15th December 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament might seem meet; as also upon the Case of the Mayor, Aldermen and Burgesses of Birkenhead, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 15th day of December 1972, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal arises out of some extensive works of reconstruction to the approaches to the Mersey Tunnel. They were carried out by the Corporation of Birkenhead under statutory powers conferred by the Birkenhead Corporation (Mersey Tunnel Approaches) Act, 1965, (c. xxxviii) "the local Act". The Appellants, dealers in motor cars, are lessees from year to year of premises abutting on Conway Street, which was one of the streets to be reconstructed. As a result of the works, access to their premises from Conway Street was interfered with, first temporarily, while the work was being executed and, secondly, permanently, through the new Conway Street being so constructed that direct access from it to their premises is no longer possible. Under each head they claim to have suffered loss of business and consequently loss of profit. The proceedings were started by the Appellants by action in the Chancery Divison claiming declarations that they were entitled to compensation for these losses, and on 30th July, 1971, certain preliminary issues were ordered to be tried before the trial. These were whether, upon the basis of specified paragraphs in their Statement of Claim, i.e., assuming the facts there pleaded to be established, the Appellants were entitled to compensation in respect of loss of profits arising from ( a) the temporary obstruction ( b) the permanent obstruction of access. Both questions have been answered in the negative by Foster J. at first instance and by the Court of Appeal, though on slightly differing bases.
The answers to these questions are stated to depend upon the construction of the local Act, together with certain well-known sections of the Lands Clauses Consolidation Act, 1845, which it incorporates, a process which, in this case, cannot be carried out with any judicial satisfaction. The relevant section of the Act of 1845 (section 68) has, over 100 years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording—which itself has an earlier history, in some sort of accord with the realities of the industrial age. The local Act, as is common with land acquisition and works legislation, contains a farrago of sections, loosely pinned together from various precedents, which have neither internal clarity nor mutual consistency. In face of this, the normal tools of interpretation fail to operate: attempts to construe the Act as a whole lead to perplexity: to attribute a consistent meaning to particular words ("works", or "subsidiary") leads to absurdity: to try to ascertain the intention of Parliament leads to conflicting conclusions. In fact, golden rules must yield to instruments of baser metal. One can only search for the occasional firm foothold and cautiously proceed from there.
I start with the fact that, by section 4 of the local Act, the Act of 1845 is incorporated. The value of this provision is reduced by the words "so far as … not inconsistent with the provisions of this Act" but there is at least a starting point. There is no doubt that this section introduces section 68 of the 1845 Act which, as existing in 1965, was in the following terms:—
"68. If any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters 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 …".
It is not disputed that, in spile of its apparent form, this subsection is, by the force of judicial interpretation, a compensation section and not merely procedural, i.e., it authorises the payment of compensation "in respect of any lands, or of any interest therein which shall have been … injuriously affected by the execution of the works". Its incorporation into the local Act, which contains a Works part (Part III), must provide a strong indication that injurious affection by the authorised works is to be compensated under this provision.
The next point, which may be vital to this appeal, is that by a series of judicial observations of high authority it is well established that the only compensation which can be obtained under this section is "in respect of lands", i.e., in respect of some loss of value of land, or (what is a branch under this same heading) in respect of some damage to lands and that compensation cannot be obtained for any loss which is personal to the owner, or which is related to some particular user of the land. The first clear statement to this effect was made by Lord Cranworth in Ricket v. Metropolitan Railway Co. (1867) L.R. 2 H.L. 175. Speaking of section 6 of the Railway Clauses Consolidation Act, 1845,—which is to the same effect as section 68 ( supra) and (this is material later) also of section 16 of the same Act which refers to "damage", he said:
"Both principle and authority seem to me to show that no case comes within the purview of the statute, unless where some damage has been occasioned to the land itself, in respect of which, but for the statute, the complaining party might have maintained an action".
Lord Westbury dissented from this view and Lord Chelmsford's opinion went on other points. Lord Cranworth's proposition was accepted in very clear judgments of Mellor J. and Hannen J. in The Queen v. Metropolitan Board of Works (1869) L.R. 4 Q.B. 358 (1869) L.R. 4 Q.B. 358. In Metropolitan Board of Works v. McCarthy (1874) L.R. 7 H.L. 243, Lord Chelmsford, in effect, adopted Lord Cranworth's proposition.
Lord Westbury's arguments, though powerful in themselves, have not gained adherence.
Lord Chelmsford said:
"It may be taken to have been finally decided that in order to found a claim to compensation under the Acts there must be an injury and damage to the house or land itself in which the person claiming compensation has an interest. A mere personal obstruction or inconvenience, or a damage occasioned to a man's trade or the goodwill of his business, although of such a nature that but for the Act of Parliament it might have been the subject of an action for damages, will not entitle the injured party to compensation under it"
( loc. cit. p. 256), and Lord Penzance agreed, saying that the rule was well settled ( loc. cit. p. 262).
In the third case in this House, Caledonian Railway Company v. Walker's Trustees (1881) 7 A.C. 259, a case on the similar Scottish Act. the rule was again stated, in firm language by Lord Selborne L.C. and by Lord Blackburn ( loc. cit. pp. 275, 293).
My Lords, it is fair comment that Ricket's case was really decided on remoteness, and that in the two other cases it does...
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