Wildtree Hotels Ltd and Others v Harrow London Borough Council
| Jurisdiction | England & Wales |
| Judge | Pill L.J,Lord Justice Ward,Peter Gibson L.J |
| Judgment Date | 11 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0611-21 |
| Docket Number | Case No: LATRF 97/0468/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 1998 |
[1998] EWCA Civ J0611-21
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
His Honour Judge Rich Q.C.
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Pill
Lord Justice Ward
Case No: LATRF 97/0468/3
Mr. Joseph Harper Q.C. and Mr. Barry Denyer-Green (instructed by Caplans, 2 Hobbs House, Bessborough Road, Harrow HA1 3EX) for the Appellants.
David Mole Q.C. and Mr. Paul Stinchcombe (instructed by the Solicitor for the London Borough of Harrow) for the Respondents.
Pill L.J.: This is an appeal by way of case stated from a decision of His Honour Judge Rich QC, sitting as a member of the Lands Tribunal, on 10 December 1996. The Member had agreed to consider legal issues arising under section 10 of the Compulsory Purchase Act 1965 ("the 1965 Act") as preliminary points.
While ownership is more complex, Wildtree Hotels Ltd ("the appellants") can for present purposes be treated as the owners of hotel premises known as The Harrow Hotel in Harrow. Exercising powers under the Highways Acts and a compulsory purchase order confirmed in March 1986, the London Borough of Harrow ("the respondents") undertook a complex road improvement scheme on land near the hotel for a period of five years between 1989 and 1994. No land was taken from the appellants.
In their amended points of claim, the appellants submit that the respondents interfered with public or private legal rights of the appellants as owners of the premises "which said interferences were the consequence of the carrying out of the works". Particulars are given under four headings (1) "Nuisance by noise, dust and vibration" (£310,500), (2) "Nuisance by erection of hoardings" (£124,000), (3) "Nuisance by obstruction of access to and from public highway" (£248,400) and (4) "Nuisance by obstruction of public highways" (£434,700). The claim is made under section 10 of the 1965 Act.
The questions posed, at the request of the appellants, for the opinion of this Court are:
1. Whether the Lands Tribunal erred in deciding that compensation is not payable under section 10 of the 1965 Act where an interference to some legal right, public or private, is not a direct interference to land.
Following comments in this Court, the words "or a right appurtenant to land" have been added.
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 1965 Act, the quantum of damages recoverable as compensation does not include all injurious affection attributable to and caused by the execution of works whether or not caused by an interference, physical or otherwise, with some public or private legal right.
A third question has been posed at the request of the respondents:
3. Whether the Lands Tribunal erred in law in holding that compensation is payable under section 10 of the 1965 Act 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 valuation date has been agreed as the date when the relevant works were complete, the respondents accepting that, if the answer to Question 3 is adverse to them, compensation for temporary damage which comes to an end on the completion of work must also be assessed.
The appellants claim the sum of £1,242,000. In the amended points of claim, precise claims are made under each of the four headings mentioned above and these sums form the bulk of the sum claimed. The Court was told that the sum claimed is based on a capitalisation of the loss of rental value over the period of the works. In his report, the appellants' expert witness stated "that the temporary loss in value to the land and buildings which can be claimed under section 10 of the 1965 Act is in the region of £1,242,000". No explanation was given as to how the precise sums claimed under the four headings mentioned above arise from the global sum or how they are otherwise calculated.
Section 10 of the Compulsory Purchase Act 1965 under the heading "Further provision as to compensation for injurious affection" provides:
(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 Land Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds £50.
Section 68 of the Lands Clauses Consolidation Act 1845 ("the 1845 Act") provides:
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 …."
Section 7 of the 1965 Act deals with the measure of compensation in cases of severance where land is taken from the claimant. It provides:
"In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the value of the land to be purchased by the acquiring authority, but also to the damage, if any, to be sustained by the owner of the land by reason of the severing of the land purchased from the other land of the owner, or otherwise injuriously affecting that other land by the exercise of the powers conferred by this or the special Act."
It has long been established that different considerations apply under section 7 of the 1965 Act where land is taken from the claimant and section 10 where it is not. In Horn v Sunderland Corporation [1941] 2 KB 26, Scott LJ considered, at p 42, the difference between the two equivalent sections in the 1845 Act, sections 63 and 68. Scott LJ considered the rights of the owner compelled to sell land. He stated:
"That Act … possesses two leading features. The first is that what it gives to the owner compelled to sell is compensation … In other words, he gains the right to receive a money payment not less than the loss imposed on him in the public interest, but, on the other hand, no greater. The other is that the legislation recognises only two kinds or categories of compensation to the owner from whom land is taken: (1) the fair value to him of the land taken, and (2) the fair equivalent in money of the damage sustained by him in respect of other lands of his, held with the lands taken, by reason of severance or injurious affection. For compulsory acquisition those are the only two kinds of statutory compensation. There is a third kind given by the Act, namely by section 68, but that has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act to the lands of an owner who had none of his land taken in that locality. The remedy is given because Parliament, by authorising the works, has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law. The rights conferred by section 68 have no direct or positive relevance to the question we have to decide, but negatively the section is important, just because there is nothing in it, in my opinion, which bears on our question. Whether the words 'taken for or' in the second line of section 68 have any meaning or were a mere clerical error, it is unnecessary in the present case to speculate, for it is notorious that section 68 has always been construed as applying only to lands not held with lands taken."
It is well established that under section 63 (and now section 7) compensation is payable for loss due to the acquisition described as disturbance. Different principles have evolved upon section 10 from those upon section 7 and the right to, and the assessment of, compensation where land is taken does not assist in considering the principles to be applied under section 10. The distinction was recognised in Cowper Essex v Local Board for Acton (1889) 14 App Cas 153. Lord Halsbury LC stated, at p 161,:
"But a second proposition is, it appears to me, not less conclusively established, and that is, that where part of a proprietor's land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor's land, then such damage may be an injurious affecting of the proprietor's other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing had been taken for the purpose of the intended works.
It may seem at first sight a little strange that what is injurious affecting in one case should not be in the other. But it is possible to explain that apparent contradiction by the consideration that the injurious affecting by the use, as distinguished from the construction, is a particular injury suffered by the proprietor from whom some portion of the land is taken different in kind from that which is suffered by the rest of Her Majesty's...
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