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Cite as: [2004] 1 ILRM 521, [2003] IEHC 69

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Representatives of Chadwick and Goff v. Fingall County Council [2003] IEHC 69 (17 October 2003)


     
    THE HIGH COURT
    Record No. 2001/2503SS
    IN THE MATTER OF THE ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919, THE PROPERTY VALUES (ARBITRATIONS AND APPEALS) ACT 1960, THE ARBITRATION ACTS 1954 AND 1980, THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 to 1993, THE LOCAL GOVERNMENT (NO. 2) ACT 1960, THE HOUSING ACT 1966, THE LOCAL GOVERNMENT (ROADS AND MOTORWAYS) ACTS 1974 TO 1993, THE FINGAL COUNTY COUNCIL NORTHERN MOTORWAY (AIRPORT TO BALBRIGGAN BYPASS) SCHEME 1995, AND THE CONFORMATION ORDER THE MINISTER FOR THE ENVIRONMENT DATED 30TH MARCH 1998
    BETWEEN
    THE REPRESENTATIVES OF TERENCE CHADWICK DECEASED
    AND SHEELAGH DAVIS GOFF
    CLAIMANTS
    AND
    FINGAL COUNTY COUNCIL

    RESPONDENTS

    JUDGMENT of O'Neill J. delivered the 17th day of October, 2003

    These proceedings are a consultative case stated for the opinion of the High Court in which the property arbitrator Mr. John R. Shackleton submits the following question:

    "Am I correct in holding that upon the true construction of section 63 of the Lands Clauses Consolidation Act 1845, the compensation for injurious affection to the lands retained by the claimants, caused by the carrying out of the works and subsequent use of the motorway, is limited to injurious affection caused by such works on and such use of, the land actually acquired from the claimants?"

    BACKGROUND

    The respondent as the "acquiring authority" by virtue of the Acts cited in the title hereof was empowered to construct a motorway from the existing M1 at the airport to the Balbriggan bypass. By virtue of the Fingal County Council Northern Motorway (Airport to Balbriggan Bypass) Scheme 1995, the respondents were empowered to acquire, inter alia, lands of the claimants. The claimants are the owners of a property on the north side of Malahide estuary, about a mile north of Swords and nine miles from Dublin City Centre, east of the existing M1 national primary route. The property is comprised of a substantial three storey 18th century house on circa 18 acres of land together with farm buildings and a gate lodge. The house is a listed building. For the purposes of carrying out the motorway scheme the respondents compulsorily, acquired from the claimants, .047 hectares (circa .116 acres). This land was comprised in two plots being plot 47 and plot 47 A. Both of these plots were at the eastern end of the claimants land. No part of this land taken under the scheme, formed part of the carriageway of the new motorway. Plot No. 47 was used as part of the embankment leading up to the bridge which spanned the Malahide estuary. No part for the works were constructed on plot 47 A which formed part of an existing roadway.

    The claimant's residence is 198 meters from the carriageway of the motorway at its closet point and 250 metres from the bridge abutment.

    The claimants contend that the value of their property will be depreciated by its proximity to the new motorway, and in their claim for compensation under section 63 of the Lands Clauses Consolidation Act 1845, they claimed to be entitled to recover the entire depreciation in value of their property as "injurious affection" of their retained lands, caused by the exercise by the respondent of their relevant statutory powers in carrying out the motorway scheme.

    The respondents resist this aspect of the claim, contending that any "injurious affection" of the claimants retained lands is limited to injury caused to those lands by such works as are carried out on, and such user as takes place on the land actually taken from the claimants, and as the land actually taken from the claimants is used merely as a landscaped embankment, and being no being part of the carriageway of the motorway, the claimants claim in respect of injurious affection is limited to such injury, if any, as is caused by that limited use and cannot extend to the depreciation of their property, caused by the use of the two carriageways as a highway, which are constructed on lands not taken from the claimants.

    The issue raised in this case stated has not been considered by the courts in this jurisdiction heretofore but has been the subject of several judgments in the United Kingdom and in recent times in the High Court of Australia.

    At the root of the controversy is section 63 of the Land Clauses Consolidation Act 1845 which is in the following terms:

    "63. 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 to the damage, if any, to be sustained by the owners of the land by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated therewith."

    SUBMISSIONS OF THE CLAIMANTS

    It was submitted by Mr. Mohan S.C. and Mr. Ralston S.C. that the interpretation of section 63 contended for by the respondents is not supported by the words used in the section; that a literal interpretation of the section supports the claimants case and that to arrive at the interpretation favoured by the respondent, would require the addition to the section of words which are not there limiting its effect to injury caused by works on or user of the land taken rather than as is expressed in the section, injury cause "by the exercise of the powers of this or this special act or any act incorporated therewith".

    They submit that as the section in question has been re-enacted in effect in various statutes since the foundation of the State, and since 1937 in particular, it is to be considered as a post Constitution Statute enjoying the presumption of constitutionality. Therefore if two or more interpretations of the section are under consideration only that one which is in conformity with the Constitution can be adopted.

    They submit that under article 43 of the Constitution it is imperative that where land is compulsorily taken, as in this case, that full compensation must be paid, t in the sense that the claimant must recover the whole of his loss, no more or no less. In this regard they rely upon the authority of Underwood v. Dublin Corporation [1997] 1 I.R. p 70.

    They submitted that this Court now confronted for the first time with construing section 63, cannot be bound by the decisions of courts of another jurisdiction or by professional practices that may have been based on such judicial decisions. In this respect they refer to a line of authority in the United Kingdom culminating in the judgment of the Court of Appeal in the case of the Minister For Transport v. Edwards [1964] 2 Q.B. 134. They submit that the case of Edwards was wrongly decided, but that in any event should not be considered persuasive authority as it conflicts with the only interpretation of section 63 which they submit is consistent with article 43 of the Constitution as mentioned above, in that it would deny the claimant compensation for the whole of their loss, and hence should not be followed by this court.

    They submit that in the long line of authority reviewed by Harman L.J. in the Edwards case and indeed followed by him; in only one of the cases mentioned was section 63 itself in issue and that was in the case of The Duke of Buccleuch v. Metropolitan Board of Works [1872] L.R. 5 H.L. 418, and in that case the speeches of their lordships support the proposition now advanced by the claimant namely that they should be entitled to recover the entire depreciation in the value of their property, land having been taken from them compulsory, on the grounds of injurious affection of their retained property, by the entire motorway scheme.

    They urge this court to adopt and follow the reasoning of the High Court of Australia in a recent case namely Marshall v. The Director General, Department of Transport [2001] H.C.A. 37, (21st June, 2001), in which all of the Judges of the High Court of Australia rejected the authority of the Edwards case preferring instead reasoning based upon a literal interpretation of the relevant Australian statutory provision, which was held in one of the judgments to be in substance the same as section 63 of the Act of 1845.

    They submit that it is immaterial that persons from whom no land was taken have to suffer the same or worse ill effects on their property, but because no land was taken from them, they have no right to compensation for such loss. Their predicament cannot and should not result in the interpretation of section 63 so as to deny the claimant or somebody else from whom land was taken to an inadequate level of compensation, not warranted by the actual terms of section 63.

    For the respondents it was submitted by Mr. O'Reilly S.C. and Mr. Butler S.C. that section 63 of the Act of 1845 has been correctly interpreted in judgments of the House of Lords, Privy Council and Court of Appeal, in the line of authority which culminated in the Edwards case, and this has been accepted by all of the established Irish commentators. They submit that compensation is payable only under section 63 in respect of lands which are taken and where part only of lands are taken under section 63 compensation is payable for the part so taken and any claim for injurious affection is proportionate to the lands taken and their use and not otherwise.

    They submit no right of action on grounds of nuisance can arise from the use of land authorised by statute or administrative decision and that section 63 is an exception to this general principle because it allows recovery for damage occasioned authorised use of land or lands taken from the claimant. They submit that this necessarily excludes compensation for damage caused by authorised use of land not taken from the claimant as to grant damages in such a case would breach the constitutional principle of equality, because other property owners who may be equally or even worse affected than the claimant will not be entitled to claim damages if no part of the land was taken, as in that circumstance they could not come within section 63 of the 1845 Act.

    They submit that the claimants are constrained to challenge the constitutional validity of section 63 of the Act of 1845 and its re-enactment in section 52 of the Roads Act 1993, which they cannot do in these proceedings.

    They submit that the principle of proportionality in the interpretation of property rights, as discussed in the In re article 26 of the Constitution in the matter of part 5 of the Planning and Development Act 1999 [2000] 2 IR 321 supports the respondents submissions on the interpretation of section 63.

    DECISION

    The first thing I should draw attention to is the wording of section 63 itself, where it provides that the cause of injurious affection which can be a source of compensation is where it is caused "by the exercise of the powers of this or the special Act, or any Act incorporated therewith". The "special Act" in this case would be the Roads Act 1993, in particular section 52 thereof and "any Act incorporated therewith" would comprise in this case The Acquisition of Land (Assessment of Compensation) Act 1919, and section 10 of the Local Government Act 1960 as inserted by section 86 of the Housing Act 1966.

    I mention these enactments at this junction not because any issue or controversy arises in this case out of them, but merely to say that there is nothing in these enactments which adds to or alters the basis for compensation, which is set out in section 63 of the 1845 Act itself. The reason I draw attention to this, at this stage is because it is quite clear to me from some of the early English cases, and specifically the cases of the Hammersmith and City Railway Company v. Brand [1869] L.R. 4 H.L. 171, and The City of Glasgow Railway Union Company v. Hunter [1870] L.R. 2 H.L. S.C. 78, and the case of The Duke of Buccleuch v. Metropolitan Board of Works [1872] L.R. 5 E.X. 221, that in those cases the basis for the ascertainment of compensation, was found in the first two cases not at all in section 63 and in the third case partly in section 63 and also in the Thames Embankment Act 1862.

    In the instant case however it is clear that it is section 63 itself and it alone that is to be considered, as the basis of any entitlement of the claimant to compensation for injurious affection.

    My first necessary task is to review the line of authority which culminated in the Edwards case in the light of the submissions made for the claimant.

    The case of Leigh v. The Stockport, Tilbury and Altringham Railway Company [1864] 33 L.J. Q.B. 251 appears to be the point from which the modern line of authority takes its departure. It was submitted by Mr. Mohan that this was a case which was decided under section 68 of the Act of 1845 and not section 63 and he bases that submission on the head note to the case which undoubtedly does recite section 68. However it would seem to me, from the body of the report that the reference to section 68 is in error and it should have referred to section 63, as it is clear from the body of the report that the case could only have been dealt with under section 63, it being a case in which land was taken.

    The facts of this case briefly were that Mr. Leigh was the owner of a cotton mill and some of his land was taken by the acquiring company for the purposes of a railway. He was in due course compensated for the taking of the land but he claimed compensation for injurious affection on the basis, that because of the risk of fire caused by sparks from the running of trains on the land that was taken from him that the land which he retained was depreciated in value and not insurable except at a greatly increased premium.

    His claim in this regard was resisted by the Railway Company who relied upon the then, established principle, that where compensation was sought for injurious affection, it could only be awarded where that which was complained about was an actionable wrong in respect of which the Act, authorising the taking of the land for the purpose of the public undertaking in question, in effect provided an immunity. Thus compensation for injurious affection under section 63 or indeed also, similar enactments could only be awarded where Parliament had taken away a right of action which but for the intervention of Parliament, could have been pursued by action in the normal way.

    The learned judge appeared to depart from this principle, but only to the extent that the works or user complained of was done on the land taken from the claimant.

    This, therefore is the first case in which the rule that the respondents in this case now invoke, was applied. The following passage from the judgement of Crompton J. in that case illustrates the original principle and the important departure from it as follows:

    "On the part of the company it was denied that the premises were rendered less convenient and fit for the purposes of a cotton mill and that the value of the mill was diminished by reason of what was done by virtue of the powers of the Act; 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 where what would have been unlawful and actionable but for the Act of Parliament is permitted by the Act of Parliament and compensation thereof allowed in lieu and by reason of such right of action being taken away. I adhere entirely to this rule as laid down by my brother Willes in Broadbent v. The Imperial Gas Company and in many other cases; but the question here is whether such rule is at all applicable to cases where part of the land is taken and compensation is given not only for the value of the part taken, but for the rest of the land being injuriously affected, either by severence or otherwise, and I am of opinion that the distinction pointed out by Mr. Manistry is correct, and that the rule in question does not apply to such cases. Where the damage is occasioned by what is done upon other lands which the company have purchased and such damage would not have been actionable as against he original owner as in the case of the sinking of a well and causing the abstraction of water by percolation, the company have a right to say, "We have done what we had a right to do as proprietors and do not require the protection of any Act of parliament, and we therefore have not hindered you by virtue of the powers of the Act and no cause of action has been taken away from you by the Act.

    Where, however, the mischief is caused by what is done on the land taken, the party seeking compensation has a right to say:

    "It is by the Act of Parliament and by the Act of parliament only that you have done the acts which have caused the damage. Without the Act of parliament everything you have done and are about to do in the making and using of the railway would have been illegal and actionable, and is therefore a matter for compensation according to the rule in question."
    I think therefore that the distinction between cases where the land is taken and the cases of abstraction of light, rights of way, by acts done on other lands is well founded. This distinction is referred to by my brother Blackburn in the recent case of Chamberlain v. Crystal Palace Company 6 L.T. REP. M.S. 318 as having been taken in former cases. I am of opinion that the premises in question were injuriously affected and that within the sections of the Land Clauses Act as to compensation where land is taken and that the jury have rightly included the damages for such injury in their verdict."

    What is to be gleaned from this case, is that there was a core principle at that time governing the ascertainment of compensation for injurious affection provided for under section 63 of the Act of 1845, which was that compensation could only be awarded where the authorising Act protected the promoter of the undertaking from action in respect of an actionable wrong. Thus the normal user of the facility provided pursuant to the Act of Parliament e.g. a Railway, Sewage Plant, a canal etc. would not give rise to the injurious affection unless it amounted, in itself, to an actionable wrong. In the above case it was clear that the running of trains along tracks was not in itself an actionable wrong although it did give rise to sparks which created the problem for Mr. Leigh.

    As a result of the judgment of Crompton J. in that case compensation could thereafter be recovered for injurious affection to the land retained by a claimant resulting from the non actionable user of a public facility provided pursuant to Act of Parliament, but only on the land taken from that claimant.

    The reason for the departure taken by Crompton J. and the restriction of it to the activity on the land taken is perfectly clear, and it is, that the user of the taken land, would be an actionable wrong as against the original owner from whom it was taken, in that, all the activities, both the execution of works and use of the facility when constructed, would be a trespass, unless excused or immunised by the Act of Parliament. On the other hand these identical activities done on land not taken from the claimant would never be actionable as a trespass, and in the absence of negligence not otherwise actionable by the claimant, and consequently the restriction of compensation to activity on the taken land is clearly right in principle.

    Hence the reasoning of Crompton J. is impeccable, in that he permitted compensation to be recovered as injurious affection because everything done on the taken land would but for the Act of Parliament be a trespass, whereas if done on the land which was never the property of the claimant would not at all, be actionable, His ruling is in effect, an aspect of the older principle, that where Parliament provides for the award of compensation for injurious affection it can only by awarded in respect of what would be an actionable wrong in respect of which parliament provides immunity under the relevant act to the perpetrator.

    Before leaving consideration of this case I would draw attention to the portion quoted above where the learned judge says "I am of the opinion that the premises in question injuriously effected within the sections of the Land Clause Act as to the compensation where land is taken …". Manifestly, in my view it is section 63 that is referred to there and not section 68.

    The effect of the age old principle that compensation for injurious affection could not be awarded in respect of what would not have been an actionable wrong, is that no-one could claim compensation for injurious affection for any injury to property caused by the user of the public facility, without negligence, authorised by Parliament. Hence the community or in particular those members of it who happen to live near to public undertakings, such as railways, motorways, sewerage treatment plants etc. were not entitled to compensation for the depreciation of their properties from the ordinary user of these facilities. The rule which emanated from the Leigh v. Stockport case has often been characterised as an exception to this general principle and indeed so it was submitted by the respondent in this case. In my view it is not an exception to the general principle, but as stated earlier, merely an aspect of it. The taking of a claimants land and the doing on it of any acts would be an actionable trespass. That wrong, in respect of which there is an immunity or protection under the relevant acts of Parliament, distinguishes the situation of the land owner from whom a portion of land is taken from the predicament of the community in general from whom nothing is taken. A separate and distinct wrong is perpetrated on the landowner from whom land is taken which is not inflicted on those in proximity to a public undertaking but from whom no land is taken.

    Were compensation for injurious affection not to be provided on this basis to someone for whom portion of their land was taken it could very well be said that the right to compensation for injurious affection under section 63 would have been rendered nugatory. The limitation of that compensation to in the execution of works or the user on the land taken, is in my view necessary, having regard to the general principle applying to the injurious affection, whether caused to someone from whom land is taken or otherwise, that compensation under this heading is only provided in respect of an actionable wrong for which immunity is provided by the relevant Act of Parliament.

    The existence of this core principle is undoubtedly necessary, as in its absence, in claims for compensation for injurious affection from both those whose lands are taken and others under section 68 of the Act, compensation would have to be awarded for injury to property, in circumstances where the claimant would have had no right of action in respect of that injury under the common law. Thus it could be said that section 63 and similar statutory provisions gave a new right to compensation where no right to compensation for the same injury existed at common law. The above case and indeed may others make it clear that section 63 and similar enactments have been construed, on the basis that Parliament did not intend to provide compensation where no right to same existed at common law, but instead intended to provide compensation only where an existing right to compensation was taken away by the authorisation in the relevant statute enabling a particular public undertaking to proceed.

    However in the case of the owner from whom land is taken the granting of compensation for user on the land taken was right in principle because a legal wrong i.e. a trespass would but for the Act of Parliament have occurred and its limitation to the land taken was also right in principle because the wrong in question could not extend beyond the boundaries of the land taken to activity conducted on other lands, and the granting of compensation for injurious affection to a land owner in these circumstances recognises a real distinction between the circumstance person from whom land has been taken and the predicament of the general community whose property may be in proximity to the public facility in question.

    Moving next to the case of the Hammersmith and City Railway Company v. Brand [1869] L.R. 4 H .L. 171. In this case the claimant claimed damages for injurious infection because of the vibration caused by the running of trains over a railway line which was adjacent to her premises. No land of the claimant was taken for the purposes of the railway. The House of Lords rejected a claim holding that Mrs. Brennan's right to compensation was to be determined under sections 6 or 16 of the Railway Clauses Act of 1845 rather than under the Land Clauses Consolidation Act of 1845, and a narrow construction was placed on these sections because of the heading in the Act under which they came namely; "And with respect to the construction of the railways and the works connected therewith be it an Act as follows". The sixth section of that Act was in the following terms:

    "In exercising the power given to the company to construct the railway and to take lands for that purpose the company shall be subject to the provisions and restrictions contained in this Act and in the Land Clauses Consolidation Act and the company shall make to the owners and occupiers of and all other persons interested in any lands taken or used for the purposes of the railway or injuriously affected by the construction thereof full compensation for the value of the land so taken or used and for all damage sustained by such owners occupiers and other parties by reason of the exercise as regards such land of the powers by this or this special Act or any Act incorporated therewith vested in the company."

    Injury resulting from "the exercise as regards such land as the powers by this or this special Act or any Act incorporated therewith vested in the company." as provided for in section 6 of this Act was held to be confined to injury resulting from the construction of the railway rather than its use on the basis of the title to that part of the Act and also the use of the phrase "by the construction thereof" in the body of section 6. Thus injury resulting from the user of the railway was held to be excluded. A similar conclusion was reached in relation to section 16 of the same Act which was in the following terms:

    "It shall be lawful for the company for the purposes of constructing the railway or the accommodation works connected therewith hereinafter mentioned to execute any of the following works…..and all other acts necessary for making and maintaining altering or appearing and using the railway."

    The phrase "using the railway" had been relied upon by the claimant but it was held that the works mentioned in the context of this section were for the purpose solely of preparing or enabling the railway to be used and not for the actual use of the railway.

    This case was also distinguished on the grounds that no land was taken.

    The case of City of Glasgow Union Railway Company v. Hunter [1870] L.R. 2 H.L. S.C. 78 quickly followed the Brand case. In this case also compensation was claimed for injurious affection arising from the noise or smoke which would be generated by trains. The Brand case was followed and hence it was held that compensation could only be awarded in respect of injury arising from the carrying out of the construction of the railway and not its use.

    In this case, the case of Leigh v. Stockport Railway was referred to but distinguished because Brand's case was followed and hence damages confined to injury arising from the execution of the works. Doubt was cast over the correctness of the judgment of Crompton J. in the Stockport Case in the speech of Lord Chelmsford but he distinguished the Stockport case on the additional basis that in that case the damage complained of took place on the land taken whereas in the Hunter case the activity complained of took place not on the land taken, but on a railway bridge over the land of another person. He had this to say however in respect of the judgment of Crompton J. in the Stockport case:

    "If I had to express an opinion upon the correctness of this decision I should be disposed to say with Baron Bramwell in the case of the Duke of Buccleuch v. the Metropolitan Board of Works (1).
    'It does seem strange that the taking of a piece of a man's land should let him in to prove all sorts of damage for which he could not otherwise recover'."

    The Hunter case fell to be decided under the provisions of the Railway Clauses (Scotland) Act which was in identical terms to the Railway Clauses Act 1845.

    As these two cases were decided under the provisions of the Railway Clauses Act and not the Land Clauses Consolidation Act 1845 and as the decision in each case resulted from the construction of the particular provisions of those Acts which are not similar to the Land Clauses Act they do not afford much assistance in the interpretation of section 63 of the 1845 Act.

    The next case which must be considered is that of The Duke of Buccleuch v. the Metropolitan Board of Works [1870] L.R. 5 H.L 418 in this case the Duke was the owner of a property known as Montague House whose grounds ran down to the Thames in Whitehall in London. The property enjoyed access to the river by means of a gate which led to a causeway or jetty which extended out into the river so as to provide access to the waters of the river at all times regardless of the level of the water. A scheme for the creation of an embankment under the aegis of the Thames Embankment Act 1862, resulted in the taking of the causeway and the creation of an embankment with a road thereon which separated the Duke's property from the river. He made a claim for compensation under section 63 of the Act, and inter alia he was awarded the sum of £5,000 to reflect the diminution in the value of his property because of the use of the embankment as a highway with all of the noise dirt and inconvenience that would accompany that. The House of Lords upheld this award to him, and the claimant herein, relies heavily on the authority of this case as supporting the interpretation of section 63 which he contends for.

    The leading speech was given by Lord Chelmsford, in which he said the following:

    "The only question upon which there has been a difference of opinion among the judges is, whether the umpire was authorised to give compensation in respect of the depreciation of Montague House by the conversion of the lands between it and the river into a highway and the consequent public use of it. This question partly depend upon the 63rd section in Land Clauses Consolidation Act 1845 which is incorporated with the Thames Embankment Act and which enacts that in estimating the purchase money or compensation to be paid by the promotions of an undertaking
    'regard shall be had not only to the value of the land to be purchased or taken but also to 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 land as such owner, or otherwise injuriously effecting such other lands by the exercise of such power'.
    The plaintiff was the owner of land within the meaning of this clause in respect of the causeway which was taken away from him. It is quite immaterial whether the soil of the causeway belonged to him or he had merely an easement over; for by the 4th section of the Thames Embankment Act, the word "lands" is to include easements, interests, rights, and privileges in, over, or affecting lands; and the 27th section of the same Act empowers the Metropolitan Board of Works to appropriate by grant or demise any reclaimed land, &c., to any owner of lands now situated on the present left bank and river frontage of the river Thames…….
    This section contemplates two descriptions of damage likely to be sustained by the owners of land on the bank and river frontage of the Thames - one loss of the river frontage; the other in any other manner, by reason of the embankment or other the exercise of any of the powers of the Act.
    It seems to me to be quite clear that the umpire was entitled to consider not only the damage which the plaintiff sustained by being deprived of the causeway but also whether he was entitled to compensation in respect of damage otherwise sustained by reason of the embankment. Now, if he was of opinion that Montague House was depreciated in valued as a residence by reason of the proximity of the embankment and of all the consequences of its use as a public highway, he was bound to give the plaintiff some compensation, and the amount proper to be awarded was entirely for him to determine.
    It can hardly be doubted that in addition to the damage sustained by the loss of the river frontage the house must have been "injuriously affected" – i.e. depreciated in value – by way of in interposition between it and the river of an embankment to be used as a public highway; and this seems to bring the right to compensation within the very words of the 27th section of the special Act because it is damage otherwise than by loss of the river frontage by reason of the embankment or roadway."

    Lord Westbury and Lord Colonsay concurred in the speech of Lord Chelmsford. Lord Cairns reached a conclusion in favour of the Duke but on a different basis, namely, determining his loss to be the result of an injury to his riparian right by the taking away of his entire water frontage.

    I am not in agreement with the submission for the claimant, that this case is a clear authority on the interpretation of section 63 of the Act of 1845. It seems clear to me that Lord Chelmsford was greatly influenced in the conclusion that he reached by the provisions of section 27 of the Thames Embankment Act which was the special Act and indeed the last paragraph above quoted would seem to suggest that it was upon this section that he rested his judgment.

    The alternative approach adopted by Lord Cairns appears less persuasive to me. There was no dispute, but that the basis of the umpires award £5,000 in respect of the depreciation of the property had nothing to do with the loss of a riparian right, but was expressed to be on account of the interposition between the Duke's property and the river of an embankment with a highway on it with all of the attendant annoyances that would go with that.

    The next case for consideration is that of Cowper Essex v. Local Board for Acton [1889] 14 APP. CAS. 153. In this case compensation was claimed under section 63 of the Act of 1845 where the respondents compulsorily acquired lands of the claimant for the purposes of sewerage works. A jury who assessed compensation awarded a sum for the injurious affection of the claimants retained lands by reason not only of the construction of the sewerage works but also in respect of their use upon the lands taken from him.

    Of particular note in this case is that the case of Leigh v. Stockport Timperley and Altrincham Railway Company was expressly approved.

    The following passage from the judgment of Lord Halsbury illuminates the reasoning adopted;

    "My lords with reference to the main question I have had less difficulty since I take it that two propositions have now been conclusively established. One is that land taken under the powers of The Land Clauses Act and applied to any use authorised by the statute, cannot by its mere use, as distinguished from the construction of works upon it, give rise to a claim for compensation. 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, than such damage may be an injurious effecting of the proprietors other lands, though it would not be an injurious effecting of the lands of neighbouring proprietors from whom nothing has been taken for the purpose of the intended works.
    It may seem at first sight a little strange that what is injurious effecting in one case should not be in the other. But it is possible to explain that apparent contradiction by the consideration that the injurious effecting by the use, as distinguished from the construction, is a particular injury suffered by the proprietor from whom some portion of his land is taken, different in kind from that which is suffered by the rest of her majesty's subjects."

    He then goes on to say:

    "It is, however unnecessary to consider the question as if it were res integra, since I think that Buccleuch v. Metropolitan Board of Works, has established the proposition in such a way as to be binding upon your Lordships. I think it is impossible to explain that case when the question expressly raised was whether the umpire had awarded damages in respect of the future use of the embankment as distinct from its construction, and when it was admitted that he had awarded damages in respect of the use of the intended road, and your lordships affirm the right to make such an award."

    This is an important case because, regardless of what may be submitted and argued as to the effect of the speeches in the Buccleuch case, there is no doubt that the Cowper Essex case is conclusive authority for the proposition that section 63 is to be construed so as to permit compensation for the user as well as the execution of the works on the part of the land taken, where that injuriously effects the retained land, and Lord Halsbury was of the view that Buccleuch v. Metropolitan Board of Works was binding authority for that proposition. This result is expressed most neatly in the following passage from the speech of Lord Watson where he say;

    "It appears to me to be the result of these authority which are binding upon this house, that a proprietor is entitled to compensation for deprecation of the value of his other lands, insofar as such depreciation is due to the anticipated legal use of works to be constructed upon the land which has been taken from him under compulsory powers. The construction of the Act which has been thus adopted by the House has previously been enforced by Mr. Justice Crompton in the Stockport case."

    Lord Watson was also of the view that the speeches in the House in Buccleuch v. Metropolitan Board of Works were consistent with this principle.

    The next case referred to is Horton v. Colwyn Bay and Colwyn Urban District Council [1908] 1 KB 327. This was a decision of the Court of Appeal. The facts of the case briefly were that the respondents took portion of the claimant's land for the purpose of sewerage works. However all that was done on the lands taken from the claimant was the laying of pipes to take sewerage to and from the sewerage works, which were constructed on other lands. As part of his claim the claimant claimed for the depreciation in the value of his retained property caused by the construction and use of the main sewerage works which of course was not on the land taken from him.

    In the course of his judgment Lord Alverston C.J. said the following:

    "For a great many years it was thought and eventually was held to have been wrongly thought, that it made no difference as to the extent of a claim for compensation for injuriously affecting, that any land of the claimant had or had not been taken. The contrary view which had been expressed by Crompton J. in the well known Stockport case was at one time thought not to be good law. The question came under review in the House of Lords in the Copper v. Essex case and it must now be taken to have been decided by judgements, which are of course binding upon us sitting in this court, that a persons whose land has been taken is entitled to compensation which he would not have been entitled to if none of this lands had been taken, either on the ground, to use the language of some of the authorities, that he could have prevented the statutory undertaking from being carried out, and so could make his own terms, or on the ground that, in as much as some of his land was taken and an actionable trespass would, but for the statutory powers, have been committed, he was entitled to the full measure of common law damage."

    The judgement of Buckley L.J. in the same case follows the Stockport case and the Cowper Essex v. Acton Local Board case and the following is said:

    "The principal of the Stockport case was applied and extended by the House of Lords in Cowper Essex v. Acton Local Board to this extent, that if the claim is by a person from whom land has been taken compulsorily, he may have compensation for damage sustained by the injuriously effecting of other lands of his, and such damage is not confined to damage in construction, but extends to damage in user of that which is constructed on the land taken from him.
    But no case has been cited, and none I think exists, in which the doctrine has been applied to damage occasioned by works erected upon land not taken for the claimant."

    Further on in his judgment he says the following;

    "The appellant argues that he is within the Stockport case and the Cowper Essex case, upon the ground that the pumping station and reservoir that was situated on land other than land of the claimant, forms with the sewers laid in his land one sewage undertaking. The test is not whether the whole formed one undertaking -- a railway undertaking is one undertaking. The test is whether that part of the undertaking which lies on the claimants land has created the injury to the claimants adjoining lands."

    It is to be noted of course that the statutory provision in question was section 308 on the Public Health Act 1875. However it would appear from the argument and the judgments, that there was no difference of any substance between its terms and section 63 of the Land Clauses Act 1845.

    The next case referred to was the case of the Sisters of Charity of Rockingham v. the King [1922] 2 AC 315. Here we have a judgment of the Privy Council on a dispute occurring in the province of Nova Scotia in Canada, which follows the Cowper Essex v. Acton Local Board case and applies the principles set out there, to the relevant Canadian statutory provision.

    That brings me finally to the case of Edwards v. The Minister for Transport [1964] 2 Q.B. 134 which is said to be the modern authority, restating the principles laid down in the earlier cases and which Mr. Mohan submits specifically has been wrongly decided or should not be followed.

    The facts in that case are quite similar to the facts in the instant case. In the Edwards case the claimant owned a substantial dwelling house with a number of acres around it. The respondents had a scheme to build a trunk road and for that purpose took from him two small parcels of land. One of these pieces of land jutted into one of the carriageways of the road over a very short distance. The other piece of land was taken for the purposes of rearranging an entrance. The issue as to compensation was yet again the same, namely, whether or not the claimant was entitled to recover the full depreciation in the value of his retained lands or whether he was confined to such loss as was caused by the user of the lands actually taken from him. There can be no doubt from the head note and indeed from the body of the judgment that the claim involved was made under section 63 of the Land Clauses Consolidation Act 1845 and thus the issue considered in the Court of Appeal was directly related to that section.

    In the course of his judgment Harman L.J. reviews some of the authorities discussed above, and I would respectfully agree with his review, save in one instance, where I would respectfully disagree with his discernment of the ratio decidendi of the decision in the Buccleuch case which he appeared to derive from the speech of Lord Cairns in that case; as being the loss of a riparian right by virtue of the loss of the whole of the river frontage, thus giving rise to a claim large enough to cover the whole of the damage to the whole of his interest whatever that interest might have been. In my view the ratio in the Buccleuch case is to be found in the judgment of Lord Chelmsford and appears to rest largely, on section 27 of the Thames Embankment Act 1862.

    In the result having reviewed the authorities, Harman L.J. with whom Donovan L.J. and Watson L.J. agreed, relying on the principles set out in the authorities, discussed above came to the conclusion that the damage resulting from the user of the motorway had to be confined to that very limited damage occurring on the portion of the land taken from the claimant.

    Mr. Mohan submitted that of all of the cases referred to, only the Buccleuch case was dealt with under section 63. I must disagree with that submission. It is apparent to me from a review of the cases that the Stockport case was a case under section 63. Undoubtedly the Buccleuch case was a case in which the claim was made under section 63 but its determination appears to me to have been heavily influenced by section 27 of the Thames Embankment Act. Without any shadow of a doubt Cowper Essex case was decided under section 63. And finally the Edwards case was a case under section 63.

    Were these cases wrongly decided or should they not now be followed in this jurisdiction? To answer that question involves a consideration of whether the underlying principles discussed above ought to apply in the application of section 63 and specifically should there be adherence to the principle that compensation should only be paid in respect of injury resulting from what would have been an actionable wrong but for the intervention of Parliament, providing immunity to the promoter of the undertaker. If this principle is consistent with a correct interpretation of section 63, then the next question is whether the rule which originated in the Stockport case and ultimately approved in the House of Lords in the Copper Essex case and faithfully followed thereafter culminating in the Edwards case, is sound in principle and to be applied in this jurisdiction.

    The real question here is whether the original principle, namely no compensation unless an actionable wrong is shown is consistent with the correct interpretation of section 63. If it is, there is no doubt in my mind but that the principle emanating from the Stockport case is well reasoned and sound in principle.

    There is no doubt that the courts of the United Kingdom at every level have upheld this principle, leading inexorably to the conclusion that so far as that jurisdiction was concerned its courts found no inconsistency between that principle and a true interpretation of section 63. Necessary to that conclusion is a view that Parliament in enacting section 63 did not intend that compensation would be provided for injury which would not otherwise attract damages.

    The fundamental objective of statutory interpretation is to give effect to the intention of Parliament, that intention of course to be discerned from the language of the statute in question save where ambiguity or absurdity exists so as to cloud the real intention of Parliament. The principle that, no compensation should be paid where the injury would not otherwise attract damages is of course not expressly included in section 63 or in any other provision of the Act of 1845. The proposition stated in this principle would appear to me to be so obvious, as to hardly require express statement. If this were an issue of interpretation of a contract in which it was claimed that that the above principle was an implied term, I would have no hesitation in concluding that the "bystander test" was satisfied.

    I see no inconsistency between the observance of this principle and the express terms of section 63 and furthermore I would be inclined to the view that an interpretation of section 63 which excluded that principle would in reality defeat the true intention of Parliament which could fairly be said was; where land was compulsorily taken, to fully compensate for that; in the first instance by paying the full value for the land; secondly paying for damage resulting from the severance of one piece of land for another and thirdly to pay for damage to the owner of retained land where the use of the taken land injures the retained land. It is clear from the entirety of the Act of 1845 that for those whose land was not taken there is no right to compensation except under section 68, where injury to property is caused by the execution of the works. Quite clearly what is entirely excluded from the statutory scheme of compensation is a right to compensation for those whose land is not taken, for injury caused by the user of the public facility in question. These limitations on access to compensation under the statutory scheme in my view support the principle that compensation is provided only where but, for the act of Parliament, the injury complained of, would be actionable. The existence of this principle in my view derives from the scheme of the Act which limits compensation in this way for those whose land is not taken. If their right to compensation is limited in this way it would seem to me necessarily to follow that the right to compensation under section 63, where land is taken, is not intended to be so extensive, as to, merely on the ground that some land was taken, to enable that owner of land to claim as injurious affection depreciation and the value of the property caused by the user of a public undertaking, which the rest of the community living in proximity to the public undertaking must suffer in exactly the same way, but without any recourse to compensation under the Act.

    I am satisfied therefore that the principle that compensation can only be awarded under sections 63 and in respect of a wrong which would be actionable but for the intervention of Parliament is not only consistent with section 63 but in my view is necessary to it to ensure that the section operates in harmony, in particular with section 68, so as to provide compensation to members of the community injured by public works on a basis which as between those who have some land taken from them and some who do not, is both rational and fair.

    I am equally satisfied that the rule which permits compensation to a land owner from whom land has been taken for injury caused by the user of the taken lands but confined to the user on the taken lands is also rational, right in principal and fair as being compensation in respect of an actual wrong i.e. trespass, and fair to the rest of the community, in the sense that this is a separate injury to the land owner from whom land is taken, which is not suffered by the rest of the community who live in proximity to the public undertaking but from whom no land is taken.

    This brings me to the next issue raised by the claimant and that is whether the rule thus stated derived from these authorities, is consistent with the Constitution.

    For the claimants it was submitted that in compulsorily taking the claimants land, the respondents were obliged to compensate the claimant for the entirely of loss resulting from this, which includes the full depreciation in the value of their property by reason of the carrying out of the motorway scheme. In this regard the claimants rely upon the judgment of the Supreme Court in the case of Dublin Corporation v. Underwood [1997] 1 I.R. 69.

    For the respondents it was submitted that the rule limiting compensation to user of the lands actually taken was in conformity with the principle of equality contained in Article 40.1 of the Constitution, and if there was any interference with the property rights of the claimants it was a proportionate interference in the sense as discussed in In re in the matter of Article 26 of the Constitution and in the matter of part 4 of the Planning and Development Bill 1999 [2000] 2 IR 321.

    It needs first to be determined whether or not there has been any infringement of the claimant's rights under article 43 of the Constitution by reason of a denial of compensation to them for a compensatable loss.

    The review and analysis of the authorities above in my view reveals the position to be that the loss which they now seek compensation for namely the full depreciation and the valve of the property caused by the motorway scheme is not a loss which was ever a compensatable loss, in the sense that the use of the land upon which the motorway is constructed could not be said to have been an actionable wrong so far as these claimants are concerned. Thus the limitation of compensation for injurious affection to that which is done solely on the land taken does not deprive them of compensation for something that they would otherwise have been entitled to compensation for but for the intervention of the relevant statute. Clearly they were entitled to be paid the value of the land and the expenses or losses resulting from the severance of the land taken from the retained land and because what was done on their taken land and the continuing user of it would but for the statute would also be a trespass they were entitled to damages for that. But beyond that at common-law they would have been entitled to no more. Thus in my view under section 63 of the Act as applied in this way, they are entitled to recover the full amount of such loss as is visited on them by the compulsory taking of their land but are not entitled to recover for the additional claimed loss because that loss would not have recoverable at common law in any event. Section 63 in my view matches the losses which but for the statute, would be recoverable at common law.

    Therefore in my view the claimants have not demonstrated that they are denied compensation for a compensatable loss, and in that way that their rights under article 43 have been infringed.

    Having reached that conclusion it is of course unnecessary for me to express any opinion on the respondents submission that such interference as there has been with the claimants constitutional rights is permissible as being proportionate.

    I am of the view however that the submission that the rule limiting compensation as aforesaid, is consistent with article 40.1 of the Constitution and indeed were section 63 to be interpreted as permitting the recovery of the entire depreciation of the claimant's property because of the motorway scheme, that would be an infringement of the guarantee of the equality before the law contained in that article, in the sense that neighbours of the claimants who could be affected in exactly the same way by the motorway scheme or indeed perhaps even worse, would have no right to have any compensation if no land of theirs was taken and would have to suffer any diminution in the value of their properties without compensation. There would in my view be a manifest and unjustifiable inequality in the treatment of those persons vis à vis the claimants, if section 63 to be interpreted in the manner contended for by the claimants.

    In conclusion therefore I am of the opinion that the rule which limits compensation for injurious affection of retained land, to works and user on the taken lands, and thereby excluding injury due to user on other lands is in conformity with the Constitution, is sound in principle. I am also of opinion, that the cases in which this principle was laid down, were correctly decided and in my view ought to be followed in this jurisdiction.

    The question of whether or not there should be compensation for injury to property caused by the non actionable use of public facilities such as motorways is clearly one of national policy and is a question which, in my opinion, is solely within the competence of the Oireachtas.

    Finally although it may be unnecessary to say it, having regard to the foregoing; I decline to follow the reasoning in the judgments in the case of Marshall v. The Director, Department of Transport, [2001] HCA 37 (21st June, 2001).

    I would answer "Yes" to the question posed in the case stated.


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