Clift v Welsh Office

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSIR CHRISTOPHER SLADE
Judgment Date23 July 1998
Judgment citation (vLex)[1998] EWCA Civ J0723-2
Date23 July 1998
Docket NumberLATRF 97/0516/3

[1998] EWCA Civ J0723-2

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LANDS TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Beldam

Lord Justice Ward

Sir Christopher Slade

LATRF 97/0516/3

Clift & ANR
Applicant/Respondent
and
Welsh Office
Respondent/Appellant

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

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

1

Thursday, 23 July 1998

SIR CHRISTOPHER SLADE
2

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

3

The facts

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

Prior to the member's decision:

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

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

14

The legal background

15

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

16

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

"(1) If any person claims compensation in respect of any land, or any interest in land, which has been … injuriously affected by the execution of the works … any dispute arising in relation to the compensation shall be referred to and determined by the Lands Tribunal.

(2) This section shall be construed as affording in all cases a right to compensation for injurious affection to land which is the same as the right which section 68 of the Land Clauses Consolidation Act 1845 has been construed as affording …"

17

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

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

18

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

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

(2) the injurious affection must arise from that which will give rise to a cause of action if done without the...

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