Edwards v Minister of Transport

JurisdictionEngland & Wales
Judgment Date17 December 1963
Judgment citation (vLex)[1963] EWCA Civ J1217-5
Date17 December 1963
CourtCourt of Appeal
Thomas Leonrd Edwards
Claimant Respondent
The Minister of Transport
Respondent Appellant

[1963] EWCA Civ J1217-5


Lord Justice Harman

Lord Justice Donovan and

Lord Justice Russell

In The Supreme Court of Judicature

Court of Appeal

From the Lands Tribunal

MR PATRICK BROWNE, Q.C. and MR J.C. LEONARD (instructed by the Treasury Solicitor) appeared as Counsel for the Appellant.

MR MICHAEL RICH (instructed by Messrs Clifford-Turner & Co.) appeared as Counsel for the Respondent.


LORD JUSTICE RAHMAN: This appeal is concerned with injurious affection a piece of jargon having a respectable pedigree and prolific of litigation in our Courts for a century or more but none the better I think when embellished with the epithet which it acquired during the hearing when it was styled "pure injurious affection". It is not emotion but an effect which is being described.


The respondent is the owner of a middling sized house which he calls Field House, having a pleasant seat in a comparatively rural area outside lbrighton in Shropshire. It stands in grounds of something less than two acres lying south of raod called Beamish Lane. To the north of that road the respondent owns a further field of some 2½ acres kept for amenity and let to a neighbouring farmer. Abutting on that field and running north-west and south-east is a railway, sunk in a cutting. It is the respondent's ill luck that immediately to the east of his land there has come into being a large modern trunk raod, a by-pass road, with two tracks and all the noise, smell and ilashing lights which such things engender. This raod ascends a hill from the south supported on an embankment sufficient to carry it over the railway to the east of the respondent's curtilage. One can but sympathise with him in the disturbance of his quasi-rural peace but it is none the less clear that for the greater good for the greater number, householders now a days must put up with these things and that if the new road did not impinge upon his land, he would have ano redress against the promoters of it. It so happens, however, that at two points the new "monster" has invaded the respondent's territory and that admittedly gave him sone rights to compenstion. The question here is. to what extent?


The raod was constructed under the Highways Acts 1959 and 1961. Under powers conferred by the old Lands Clauses Consolidation Act of 1845 and the Acquisition of Land(Authorisation Procedure) Act of 1946 there was a compulsory purchase order made in 1960 which took away from the respondent two small triangles of land, one called on the plan plot No.14, which is 502 square yards in extent and is a little triangle at the east end of the grazing field I have described and sticks out into the now surface of the road across the western carriageway and just a little bit on to the eastern carriageway. The other bit taken is from the curtilage of the respondent's house but is only 38 square yards and is really taken in order to turn the corner round into Beamish Lane and make room for the embankment at that point. There was a notice to treat served on the respondent in 1961 and entry was made on tne land in February 1962. The by-pass road nas, I understand, now been in fact constructed.


The right to compensation arises, so far as anything here material is concerned, entirely under Section 63 of the Lands Clauses Consolidation Act of 1845, which I think I ought to read. The heading is "Purchase money and compensation - how to be estimated. 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 by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also 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" - and now I read the passage here material - "or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act or any Act incorporated therewith". What we are dealing with 1s "otherwise injuriously affecting such other lands", the Mother lands" being the respondent's lands not taken by the promoters. When one looks at the Case Stated one sees this: whether the claimant, that is the respondents "was entitled toreceive not only compensation for the acquisition and use of the said land" - those are the two small plots I have described - "but also compensation for the injurious affection of the remainder of his property as a result of the construction and future use of the said new trunk road lying both (a) within and (b) without the boundaries of the land acquired from the claimant". There is the problem stated, and in paragraph 4 the Member of the Lands Tribunal says this: "The question upon which the decision of the Honourable Court is desired is whether upon the findings of fact I came to a correct decision in law in so far as my award included compensation in respect of item (b) in paragraph 1 above". In other words, the Member of the Lands Tribunal has decided that not only may the claimant have compensation for areas within, but also for areas without, the boundaries of the land acquired from him. The Member of the Lands Tribunal, the now appointed Court for the purpose, awarded £4,000. Now £4,000 represents the amount by which the respondent's property was diminished in value compared with its value before the by-pass road arrived. That is an agreed figure, on the one hand. On the other hand there is another agreed figure which is £1,650, that being the amount agreed by the surveyors, by some alchemy which I do not understand at all, as being the amount of damage suffered by the respondent if that damage is confined to acts done upon the little plots of land which have actually been taken, having no regard to the rest of the land taken by the promoters. It was shown in evidence that in fact the main damage to the amenities of this house was due to the stretch of road coming from the south up the hill on the top of the embankment because the gradient causes change of gear and other noises and the headlights from cars and lorries at night shine into the south windows of the house, and by the time the traffic has got to the piece of land actually taken from the respondent, the worst, at any rate, of the noise is over. There does not appear to be any complaint of noisefrom southbound traffic which of course runs on the eastern lane of the by-pass.


That, therefore, was the battle as joined. The Member of the Tribunal held the larger claim of the respondent to be right, in other words, he held you may have all compensation which would arise from the exercise of any of the powers of the Act wherever they were exercised. Now I think there can be no doubt that if that decision be right, it does make a difference to the generally received view of the matter. I look, for instance, at Cripps on Compensation, which I suppose is the standard text book on this subject, and at page 240 of the Eighth Edition I find these words: "It has been held subsequently following these cases" - I need not say what they are at present - "that no compensation is payable in respect of what is done on lands other than those taken from the claimant", and further down the pare it refers to "the principles expressed in earlier cases that as the acts of user, the contemplation of which caused depreciation, would be done on lands not the property of the climant, the claimant was not entitled to any compensation". He has been held so entitled here on what the Tribunal calls "special circumstances", not, I think, pretending that the case is quite within the general run of cases of this sort. I will try and explain a little later what those "special circumstances" were.


Now this principle of injurious affection, by the use to which land taken is put, was by no means always accepted. It has now a long history behind it beginning with a case decided at first instance by Mr Justice Crompton of In re the Stockport, Timperley and Altringham Bailway Co., decided in 1864 and reported in 33 Law Journal, page 251. I read the headnote: "A railway company took some land of under their Act, and proposed to made their railway on it so close to a cotton mill belonging to L., that by reason of the proximity of the railway and the danger of fire from thetrains using the line the "building was less suitable for a cotton mill, could only be insured at an increased premium, and was rendered of less saleable value: held, that was entitled to compensation in respect of the mill being so injuriously affected, and that the rule that compensation could only be given for that which unless sanctioned by the private statute would otherwise have been an actionable wrong, had no application to cases where the Act complained of was done on claimant's own land, taken from him by the company by force of their statute". It will be seen that only goes thus far: that if some of my land be taken from me and things done on that land affect other land of mine which is either contiguous or so near as to be counted as contiguous, I may claim compensation for the user or acts done on the land which has been taken.


Mr Justice Crompton said this: "But it was asserted that no action would have lain against any proprietor for damage from fire arising from the proximity of works or engines carried on and managed, without negligence; and, therefore, that the case fell within the well established rule that compensation is only given by such Acts of Parliament when what would have been unlawful and actionable but for an Act of Parliament, is permitted by the Act of Parliament, and compensation therefor allowed in lieu and by reason of such right of action being taken away. I adhere...

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