Wildtree Hotels Ltd and Others v Harrow London Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD STEYN,LORD BROWNE-WILKINSON,LORD NOLAN,LORD HOFFMANN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 22 June 2000 |
| Judgment citation (vLex) | [2000] UKHL J0622-2 |
| Date | 22 June 2000 |
| Court | House of Lords |
[2000] UKHL J0622-2
HOUSE OF LORDS
Lord Steyn Browne-Wilkinson
Lord Nolan
Lord Hoffmann
Lord Hobhouse of Woodborough
And Others
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I would also make the order which he proposes.
My Lords,
I have had the benefit of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons which he gives I would restore the opinion of the Lands Tribunal on question 3 of the preliminary points of law but otherwise would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives I would also make the order which he proposes.
My Lords,
1. The issues
The Harrow Hotel is a family business. It consists of some converted houses in the Pinner Road, a section of the main A404 road from central London to Harrow. A short distance south of the hotel, the road crosses the Metropolitan Line by Roxborough Bridge. Between 1989 and 1994 the London Borough of Harrow ("the Council") carried out improvements to the bridge and its approaches. The work was done under statutory powers which incorporated the Compulsory Purchase Act 1965. Although a compulsory purchase order was confirmed in 1986, none of the land belonging to the hotel was taken.
The owners of the hotel ("the claimants") say that during the period of the works they were subjected to various forms of interference with their use and enjoyment of the hotel. Hoardings were erected which obscured the hotel and prevented or restricted access by themselves and their customers. For long periods the roads and pavements leading to the hotel were totally or partially obstructed or closed. The works caused continual noise, dust and vibration. All this was very detrimental to business. The claimants say that in the absence of statutory protection, they would have had an action for public and private nuisance. Therefore their land was "injuriously affected by the execution of the works" so as to entitle them to compensation under section 10 of the Compulsory Purchase Act 1965:
"(1) If any person claims compensation in respect of any land, or any interest in land, which has been taken for or injuriously affected by the execution of the works, and for which the acquiring authority have not made satisfaction under the provisions of this Act, or of the special Act, 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 Lands Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds fifty pounds."
The question of compensation was referred to the Lands Tribunal. After service of pleadings the parties agreed that the Tribunal should decide certain preliminary points of law. The tribunal member (Judge Rich Q.C.) gave a decision and then, at the request of the claimants, stated a case for the Court of Appeal. The questions formulated for the court (as amended by consent in the Court of Appeal) were as follows:
"1. Whether the Lands Tribunal erred in law in deciding that compensation is not payable under section 10 of the Act of 1965 where an interference to some legal right, public or private, is not a direct physical interference to land or a right appurtenant to land.
2. Whether the Lands Tribunal erred in law in deciding that where there has been interference with some legal right, public or private, which is capable of giving rise to a claim for compensation under section 10 of the Act of 1965, the quantum of damages recoverable as compensation does not include all injurious affection attributable to and caused by the execution of the works whether or not caused by an interference, physical or otherwise, with some public or private legal right.
3. Whether the Lands Tribunal erred in law in holding that compensation is payable under section 10 of the Act of 1965 where the interference with a legal right in respect of land or an interest in land is only temporary and where after such temporary interference the value of the land or the interest in the land has ceased to be affected at the valuation date."
The Court of Appeal, by a majority (Peter Gibson and Pill L.JJ; Ward L.J. dissenting) [1999] Q.B. 634 said that the tribunal's answer to question 1 was right. No compensation was recoverable for the noise, dust or vibrations. Such matters did not constitute "direct physical interference" with land or an interest in land. The same majority disagreed with the answer to question 3. In their view, no compensation was recoverable for temporary interference which was no longer reflected in depreciation in capital value at the valuation date. On question 2 the tribunal was unanimously affirmed. Compensation was payable only for damage which, in the absence of statutory powers, would have been actionable at common law. Thus all three questions were decided adversely to the claimants, who appeal to your Lordships' House.
2. Basic principles
Section 10(1) of the Act of 1965 is a modernised version of section 68 of the Land Clauses Consolidation Act 1845. Subsection (2), which says that subsection (1) shall be construed as affording a right to compensation "which is the same" as that which section 68 had been construed to provide, is an unusual provision which suggests some anxiety on the part of the legislature to discourage the courts from taking a fresh look at the statutory language. As Lord Wilberforce pointed out in Argyle Motors (Birkenhead) Ltd. v. Birkenhead Corporation [1975] A.C. 99, 129, the effect which had been given to section 68 was not always easy to justify on normal rules of statutory construction. For example, in Hammersmith and City Railway Co. v. Brand (1869) L.R. 4 H.L. 171, 217-218 Lord Cairns observed that section 68:
"does not define the conditions under which the person whose land has been injuriously affected is to be entitled to compensation. It rather assumes that the right to compensation has been given in some other enactments, and it contents itself with pointing out the manner in which that compensation shall be obtained."
Nevertheless, despite its procedural appearance, the courts treated section 68 as creating a substantive right to compensation on principles which were worked out in a series of cases without reference to other enactments. These principles were established after much travail and section 10(2) shows that whatever their logic or merits, Parliament did not want them re-examined.
My Lords, I shall start by stating certain principles which are settled by decisions of high authority and were not as such in dispute before your Lordships, although there was argument over their application.
(1) Despite the reference in section 68 of the Act of 1845 (and now in section 10 of the Act of 1965) to land being "taken," the section gives a right to compensation to anyone whose land, or interest in land, has been injuriously affected by the execution of the works. It is not necessary that any of his land should have been taken. If land has been taken, the compensation for injurious affection of his remaining land is calculated on different principles under section 7 of the Act of 1965 (formerly section 63 of the Act of 1845).
(2) The term "injuriously affected" connotes "injuria," that is to say, damage which would have been wrongful but for the protection afforded by statutory powers. In In re Penny and South Eastern Railway Co. (1857) 7 E. & B. 660-669 Lord Campbell said:
"unless the particular injury would have been actionable before the company had acquired their statutory powers it is not an injury for which compensation can be claimed."
In practice this means that a claimant has to show that but for the statute he would have had an action for damages for public or private nuisance. As a general proposition this again is not in dispute. But a public nuisance, such as an interference with the use of a public highway, is a wrong to the public as a whole and the ordinary common law remedy was a prosecution on indictment. To support an action for damages, the plaintiff has to prove that he suffered particular damage greater than that suffered by members of the public in general. This rule offers considerable scope for dispute on the facts and some of the decisions on injurious affection reflect different judicial views on what amounts to particular damage.
(3) A corollary of the last principle is that no compensation is payable under section 10 of the Act of 1965 if the company or statutory authority acted outside its powers. It was again Lord Campbell, this time in Imperial Gas Light and Coke Co. v. Broadbent (1859) 7 H.L.Cas. 600, 612, who made this point:
"it has been determined over and over again, in every court in Westminster Hall, that under [section 68] there is no ground for seeking compensation except for that which is done under the powers conferred by the legislature. If there is wrong which is not authorised by those powers, the common law right of action exist for it…"
(4) Compensation is payable only for damage to the plaintiff's land or interest in land. He is not entitled to any compensation for loss caused to him in a personal capacity. This rule also provides scope for a great deal of argument about whether, for example, interference with the utility of the land for the...
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