Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE BUCKLEY |
| Judgment Date | 15 December 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1215-1 |
| Date | 15 December 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J1215-1
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Plaintiffs from Order of Mr. Justice Foster, 18th November, 1971.)
Lord Justice Russell,
Lord Justice Buckley
and
Lord Justice Orr (Not present.)
MR I. GLIDEWELL, Q.C. and MR E.H. WELLS, (Instructed by Messrs. Field, Fisher & Co., Agents for Messrs. Berkson & Berkson of Birkenhead) appeared on behalf of the Appellants (Plaintiffs).
MR M. NOURSE, Q.C. and MR J. TURNER, (Instructed by Ian G. Holt, Esq., Solicitor to the Birkenhead Corporation) appeared on behalf of the Respondents (Defendants).
I, will ask Lord Justice Buckley to deliver the Judgment of the court.
In this case the plaintiff company appeals from a judgment of Mr. Justice Poster upon two preliminary questions which the District Registrar at Liverpool had ordered to be tried as preliminary issues.
The plaintiff company was at the relevant time, and we think still Is, tenant from year to year. of a building in Conway's Street, Birkenhead, where it carried on the business of dealing In new and second-hand motor cars. This building was bounded by Conway Street on its southern side and on its eastern and western sides by Henry Street and William Street respectively, which run northward from Conway Street to another street called Hens on Street. Conway Street Is intersected at right angles by Argyle Street at a point which is not very far distant from the plaintiff company's building and to the west of it. In about March, 1967, the defendant corporation, under certain powers conferred upon it by a local Act, the Birkenhead Corporation (Mersey Tunnel Approaches) Act 1965 (which in this judgment we will call "the local Act), commenced certain works authorised by the local Act, including the reconstruction of Conway Street in the area adjoining the plaintiff company's property and the intersection of Conway Street and Argyle Street.
Section 20 of the local Act, so far as relevant to the works in question In this action, is in the following terms: "() Subject to the provisions of this Act, the Corporation may within the borough make and maintain, in the lines or situations shown on the deposited plans and according to the levels shown on the deposited sections, the works hereinafter described with all necessary works and conveniences connected therewith …. Work No. 16 A newstreet commencing in Argyle Street near its northerly junction with the Haymarket …"
Section 21 authorised the Corporation In executing the works to deviate from the deposited plans and sections within specified limits.
Section 22 has the marginal note "Power to make subsidiary works". The section, so far as it is necessary to read it, is in the following terms: "(1) Subject to the provisions of this Act and within the limits of deviation, the Corporation in connection with the works may - (a) make and maintain all such approaches, subways, roundabouts, flyovers, underpasses, overpasses, stairs, ramps, passages, means of ingress or egress, shafts, stagings, buildings, apparatus, plant and machinery as may be necessary or convenient; (b) make junctions and communications (including the provision of steps or ramps for the use of persons on foot) with any existing or proposed streets which may be intersected or interfered with by or by contiguous with the works or any of them; (c) make diversions, widenings or alterations of lines or levels of any existing streets for the purpose of connecting the same with the works or any of them or of crossing under or over the same or otherwise; (d) construct and provide carriageways, footways, reserved areas, vaults, cellars, arches, sewers, drains, subways, sunken or other ornamental gardens and all such bridges, piers, viaducts, embankments, aprons, tunnels, abutments, retaining walls, wing walls, culverts and other works as may be necessary _or convenient for the works or for carrying the same over or under any railway, any stream or watercourse, any street or any land; (e) stop up and appropriate the site and soil of so much of any streets as they may consider unnecessary to retain or necessary to throw into the works; …. together withall necessary or convenient subsidiary and incidental works ….
(3) In the exercise of the powers conferred by this section the Corporation shall cause as little detriment and inconvenience as circumstances admit to any person and shall make reasonable compensation for any damage caused by the exercise of such powers….
(5) Any question of disputed compensation payable under the foregoing provisions of this section shall be determined under and in accordance with the Land Compensation Act, 1961," That Act relates to compensation for compulsory acquisition of land, not to injurious affection. Section 5 (5) has not been relied on in this case.
Section 24, so far as material, says "(1) The Corporation may stop up the whole or such portion or portions as they think fit of so much of the streets mentioned in Part I of the schedule to this Act as is shown on the deposited plans as intended to be stopped up and thereupon all rights of way over or along the same shall be extinguished and the Corporation may appropriate and use the site thereof: Provided that the Corporation shall not under the powers of this section stop up any part of the said streets unless - (a) such part is bounded on both sides by lands belonging to the Corporation; or (b) the Corporation obtain the consent of the owners, lessees and occupiers of the houses and lands on both sides thereof. ….
(3) Any person who suffers loss by - (a) the appropriation of any site of which ho Is the owner; or (b) the extinguishment of any private right; under this section shall be entitled to be paid by the Corporation compensation to be determined in the case of dispute under and in accordance with the Land Compensation Act, 1961,"
Then Section 26, so far as applicable, reads "(1) The Corporation during and for the purpose of the execution of the works may - (a) temporarily stop up and divert and interfere with any street; (b) execute and do all necessary works and things for or In connection with such stopping up or diversion and for keeping any such street open for traffic; and (c) for any reasonable time divert the traffic from any such street and prevent persons using the same. ….
(3) Any question or dispute arising under this section shall be determined by the Minister."
The works authorised by the local Act constituted an extensive scheme for the Improvement of the approaches to the Mersey Tunnel. At the intersection of Argyle Street and Conway Street they include a flyover carrying traffic travelling east and west along Conway Street over Argyle Street. There also remains a roadway crossing Argyle Street at ground level at this point. Work No. 16 la shown on the deposited plans as a new street starting from the east side of Argyle Street a abort way north of the previous intersection of Argyle Street and Conway Street, curving in a south-easterly direction into the line of the previous Conway Street and then proceeding in a straight line approximately in the same direction as the original Conway Street. This new street, which is called in the Statement of Claim "the new Conway Street", is not shown on the deposited plans as passing immediately south of the plaintiffs' building; nor in the form in which it was eventually constructed, which deviates slightly from the lines indicated on the deposited plans, does it pass immediately south of the plaintiffs' building. This new street is so sited that a sufficient space is left between it and the southern entrance to Henry Street, the southern face of theplaintiffs' building and the southern entrance to William Street, to permit the construction of a traffic road running from the southern end of Henry Street past the plaintiffs' building and past the southern end of William Stroct and so on in an easterly direction. Such a traffic road has been constructed as part of the works. This Is called in the Statement of Claim "the old Conway Street". Both the new Conway Street and the old Conway Street are at ground level, but they are separated by a kerb and railing which makes it Impossible for wheeled traffic to pass from one to the other. Consequently, vehicular traffic which has come down Argyle Street and turned left into the new Conway Street cannot get access to the plaintiffs' building. It seems that there are there are regulations In force which require traffic coming eastward along Conway Street to turn left up Argyle Street at the intersection of the two roads, but that is, we think, Irrelevant to the present proceedings. If traffic coming eastwards down Conway Street wore free to proceed at ground level in an easterly direction across Argyle Street (as the existing physical features would allow) it still would be unable to reach the plaintiffs' building because of the kerb and fence to which we have referred.
We have stated those details of the changes occasioned by the works in the neighborhood of the plaintiffs' building because we think they make the position easier to understand, but in fact the questions which we have to consider must be answered in the light of the pleading. Paragraph 1 of the Statement of Claim deals with the geographical situation of the plaintiffs' building. Paragraphs 2, 3, 4, 5 and 6 deal with sections of the Act to which we have referred. Paragraph 7 is in the following terms: "In the course of the execution of the works the Defendants bytheir contractors obstructed access to the property by closing the Old Conway Street and by excavations and other works at the junction of the Old Conway Street and Henry Street thereby obstructing access to the property whereby...
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