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IN
THE SUPREME COURT OF JUDICATURE
LATRF
97/0516/3
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE LANDS TRIBUNAL
Royal
Courts of Justice
Strand
London
WC2
Thursday,
23 July 1998
B
e f o r e:
LORD
JUSTICE BELDAM
LORD
JUSTICE WARD
SIR
CHRISTOPHER SLADE
-
- - - - -
CLIFT
& ANR
APPLICANT/RESPONDENT
-
v -
WELSH
OFFICE
RESPONDENT/APPELLANT
-
- - - - -
(Transcript
of the handed down judgment of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
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
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
Thursday,
23 July 1998
J
U D G M E N T
SIR
CHRISTOPHER SLADE: 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.
The
facts
The
factual background to the respondents’ claim for compensation is set out
in the member’s decision. It can be summarised fairly shortly.
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.
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.
Since
1976 and at all material times the respondents owned the freehold interest in
the property and lived there with their son and daughter.
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.
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.
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).
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.
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”.
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.
The
legal background
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).
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
...”
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]
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 statutory authority for the relevant scheme of
works: see
McCarthy’s
case at p. 261;
(3) the
damage or injury for which compensation is claimed must be in respect of some
loss of value of the land of the claimant: see
McCarthy’s
case at p. 262,
Argyle
Motors’
case at p. 204a-b;
(4) the
loss or damage to the claimant’s land must arise from the execution of
the works and not from the authorised use of the lands compulsorily acquired
following completion of the works [though Mr Mould mentioned that the effect of
this condition had been somewhat mitigated by the 1973 Act];
(5) the
amount of compensation must be ascertainable in accordance with the general
principles which apply to damages in tort.”
We
know of no reason to doubt the accuracy of this summary of some of the relevant
principles, which was not challenged by Mr Granville Stafford on behalf of the
respondents. On this appeal we are particularly concerned with the conditions
(2) and (3). The rationale of condition (2) was expressed by Lord Penzance in
McCarthy’s
case (at p. 262) as follows:
“It
may reasonably be inferred that the Legislature, in authorising the works, and
thus taking away any rights of action which the owner of land would have had if
the works had been constructed by his neighbour, intended to confer on such
owner a right to compensation co-extensive with the rights of action of which
the statute had deprived him. But on no reasonable ground, as it seems to me,
can it be inferred that the Legislature intended to do more, and actually
improve the position of the person injured by the passing of the Act.”
As
to condition (3), Lord Wilberforce in the
Argyle
Motors’
case (at p. 204) explained:
“by
a series of judicial observations of high authority it is well established that
the only compensation which can be obtained under this section is ‘in
respect of lands’, i.e. in respect of some loss of value of land, or
(what is a branch under this same heading) in respect of some damage to lands
and that compensation cannot be obtained for any loss which is personal to the
owner, or which is related to some particular user of the land.”
In
that case the appellants accordingly failed to obtain compensation for the loss
of profits in their business.
The
tort of nuisance and Andreae’s case
The
tort of private nuisance is defined or described in
Clerk
& Lindsell on Torts
(17th Edition) para. 18-05 as follows:
“A
private nuisance may be and usually is caused by a person doing, on his own
land, something which he is lawfully entitled to do. His conduct only becomes
a nuisance when the consequences of his act are not confined to his own land
but extend to the land of his neighbour by (1) causing an encroachment on his
neighbour’s land, when it closely resembles trespass (2) causing physical
damage to his neighbour’s land or building or works or vegetation upon it
or (3) wholly interfering with his neighbour in the comfortable and convenient
enjoyment of his land.”
(This
passage was cited as a correct statement of the law by Lord Evershed M.R. in
Thompson
Schwab v Costaki
[1956] 1 W.L.R. 335 at p. 338).
In
Andreae’s
case (supra) the plaintiff occupied and carried on the business of an hotel
proprietor on a piece of land which formed part of an island site. The
remainder of the site had been acquired by the defendant company which was
proceeding to demolish the various properties which then occupied the site and
to rebuild. The plaintiff complained, and the judge found, that by reason of
the operations, which involved noise and dust, there was a substantial
interference with the comfort of the plaintiff in the reasonable occupation and
use of her house, such that, assuming damage to be established, an actionable
nuisance would be constituted. The judge found that damage was established and
assessed the damages at £4500.
At
first sight, the judge’s findings of fact might be thought to have
justified his finding of nuisance in accordance with the generally applicable
constituents of the tort. However an argument was presented to the court,
summarised by Sir Wilfred Greene M.R. as follows (at p. 5):
“But
it was said that when one is dealing with temporary operations, such as
demolition and re-building, everybody has to put up with a certain amount of
discomfort, because operations of that kind cannot be carried on at all without
a certain amount of noise and a certain amount of dust. Therefore, the rule
with regard to interference must be read subject to this qualification, and
there can be no dispute about it, that in respect of operations of this
character, such as demolition and building, if they are reasonably carried on
and all proper and reasonable steps are taken to ensure that no undue
inconvenience is caused to neighbours, whether from noise, dust, or other
reasons, the neighbours must put up with it.”
Sir
Wilfred Greene M.R. (with whose judgment Romer L.J. and Scott L.J. agreed)
accepted this argument. Contrary to the view of the Court below, he said that
there was no evidence which would warrant its being said that “the type
of demolition excavation and construction in which the defendant company was
engaged in the course of these operations was of such an abnormal and unusual
nature as to prevent the qualification to which I have referred coming into
operation”. He accordingly concluded (at pp. 6-7):
“I
am unable to take the view that any of these operations was of such an abnormal
character as to justify treating the disturbance created by it, and the whole
of the disturbance created by it, as constituting a nuisance.”
However
he added a rider to his statement of general principle, pointing out (at p. 9):
“Those
who say that their interference with the comfort of their neighbours is
justified because their operations are normal and usual and conducted with
proper care and skill are under a specific duty, if they wish to make good that
defence, to use that reasonable and proper care and skill. ...... Their duty
is to take proper precautions, and to see that the nuisance is reduced to a
minimum.”
The
Lands Tribunal’s Decision
As
has already appeared the claim form sought compensation under two heads, that
is to say in respect of:
(A) “the
obstruction by the execution of the work of direct access to the property with
associated loss of value” and
(B) “the
disturbance by the execution of the work of peaceful enjoyment at the subject
property with associated loss in value”.
As
to head (B) the evidence of Mr Clift and his agent made it clear that he
supported this element of claim on the ground (inter alia) that his house had
been physically damaged by the works. The cost of making good the physical
damage, insofar as it comprised the wall and ceiling cracks was not the subject
of the claim because that part of the claim had been settled by the Welsh
Office’s offer to pay for or carry out certain works of repair. The
member, however, accepted the agent’s evidence that the loss in value of
the property due to physical damage caused by the works was not confined solely
to the cost of repairing the wall and ceiling cracks, but in addition included
the cost of making good the effect of dust and mud upon external and internal
decorations. The claim under head (B) thus related to this additional loss in
value of the property due to physical damage caused by the works (to which we
shall refer later as “the residual loss in value of the property”).
The
member pointed out that both parties proceeded upon the basis of the
McCarthy
rules and in particular the second rule i.e. the injurious affection must arise
from that which, if done without statutory powers, would give rise to a cause
of action. Dealing first with the claim under head (B), he made in effect the
following findings:
(1) but
for the statutory powers, the effect on the respondents’ enjoyment of the
property of the noise, dust, mud and vibration produced by the works would have
constituted nuisance;
(2) the
works did not constitute such an abnormal use of land due to their duration and
intensity as to fall within the qualification in
Andreae’s
case;
(3) the
Welsh Office took all reasonable precautions in relation to the effect of the
works on the property.
On
the basis of these findings, it is clear that
Andreae’s
case would have precluded a claim by the respondents in nuisance founded on
damage
other
than physical damage
and the member so stated. The member, however, following two earlier decisions
of the Lands Tribunal in
Biard
v Deal Corporation
(1961) 12 P. & C.R. 398 and
Flanagan
v Stoke on Trent City Council
(1982) 262 E.G. 1207, rejected the Welsh Office’s contention that the
principle of
Andreae’s
case applies even in a case where the damage to the plaintiff’s property
is physical, saying succinctly:
“I
do not think it can be right that where, as appears to be the case here,
despite reasonable precautions being taken, physical damage has occurred,
compensation cannot be claimed under section 10.”
As
to the claim for compensation under head (A) above, the member pointed out that
a claim based on the effect of the works on access to the property could only
be actionable, if at all, as a public nuisance and that for this purpose it
would be necessary for the respondents to show that they suffered a loss
greater than that suffered by the public at large. He considered that that
requirement would have defeated any claim based on the need for journey
detours, which to a greater or lesser degree would have been suffered by all
car-driving residents in the Pendalar area. Nevertheless he found that, but
for the statutory powers, the respondents would have been able to establish
that they were suffering the effects of a public nuisance “albeit, in the
main, for a relatively short period”. He gave two reasons for his
conclusion that their loss in this context was greater than that of the public
at large. First, he said:
“it
does appear that the effects which the works had upon the subject property, in
terms of the use of the roads and footpaths in its immediate vicinity, were
only suffered to a similar degree by the three other semi-detached houses
adjacent to the subject property. The WO submit that any inconvenience was
temporary and mild and thus not actionable. I accept that it was temporary,
but I question whether it was mild.”
Secondly,
he said:
“As
to rat-running in the service lane, I accept that the WO did nothing to
encourage it, but it seems clear that it was a direct consequence of the
temporary obstructions to the highway which they instituted as part of the
works. I accept that the claimant, subject to the agreement of others having
rights of way over the service lane, could have erected a gate to prevent
rat-running, but this would have involved a cost and some inconvenience in
having to open and close the gate when they, or others having the right to do
so, wished to drive along the service lane. Lastly, I observed that the
claimants were the only residents who had a garage with access on to the
service lane and I think it reasonable to infer that they suffered more from
rat-running in the lane than any of the other residents who had a right to use
it.”
The
member assessed the loss in value to the property under heads (A) and (B) above
due to the effect of the works on the property, to the extent that he had found
the claim valid, at £400.
The
case stated
At
the request of the Welsh Office the Lands Tribunal stated a case for this
Court’s decision pursuant to section 3 of the Lands Tribunal Act 1949 and
R.S.C. Ord 61. The Court’s jurisdiction is limited to consideration of
the validity of the Lands Tribunal’s determination of the
respondents’ claim in point of law. The questions of law upon which the
Court’s decision is sought are the following:
“(a) Whether
I was right in law to hold that the principle laid down in
Andreae
v Selfridge
...................., whereby disturbance arising from temporary construction
works which do not constitute an abnormal use of land is not actionable as
nuisance at common law in the absence of negligence, does not apply to a case
where the nuisance so arising consists of or includes physical damage.
(b) Whether
I was correct in law to find that the effect of the roadworks upon (i) the
subject property in terms of the use of the roads and foot paths in its
immediate vicinity, and/or (ii) rat running along the service lane to the rear
of the subject property, amounted to special damage for the purposes of a claim
in public nuisance.
(c) Whether
my findings as to (i) the effects of physical damage to the subject property,
and (ii) the effects which the works had on access to the subject property in
terms of the use of roads and foot paths in the immediate vicinity thereof,
were sufficient in law to found a valuable claim for compensation under Section
10 of the Compulsory Purchase Act 1965, in accordance with the third rule in
Metropolitan
Board of Works v McCarthy
......................”.
The
first question
We
shall consider first the Welsh Office’s argument based on the decision in
Andreae’s
case, which raises the most important point arising on this appeal.
In
Biard’s
case
(supra), which was one of the two cases followed by the Member, the Lands
Tribunal held that the rule in
Andreae’s
case does not apply to physical injury to property but only to personal
inconvenience. The member in that case expressed his reasons as follows (at p.
402):
“During
the whole of the judgment of the Master of the Rolls there is not one reference
to physical injury. He refers throughout to personal inconvenience and
intangible loss, such as a falling off in hotel visitors. The words he uses
are, “[if] all proper and reasonable steps are taken to ensure that no
undue inconvenience is caused to neighbours whether from noise, dust or other
reasons the neighbours must put up with it”. I should hesitate to extend
“undue inconvenience” to cover actual damage such as the breaking
of glass windows or the cracking of walls.”
Mr
Mould pointed out that at no point in his judgment in
Andreae’s
case did Sir Wilfred Greene M.R. expressly differentiate between personal
inconvenience and physical injury. He submitted that there is no logical basis
for the limited application of the rule in
Andreae’s
case as propounded in
Biard’s
case and that the latter case was wrongly decided and should be overruled.
Accordingly in his submission the Lands Tribunal erred in law in the present
case in finding that the disturbance element of the respondents’ claim
fell within the second
McCarthy
rule.
We
are unable to accept these submissions, for the following reasons shortly
stated. As Mr Granville Stafford pointed out on behalf of the respondents, it
appears from the report of
Andreae’s
case that the argument of the defendants’ counsel was primarily founded
on the decision of Williams J. in
Harrison
v Southwark & Vauxhall Water Co.
[1891] 2 Ch 409 on the facts of which it was held that noise and dust
amounting to a nuisance but resulting from temporary and lawful work carried
out with reasonable care and skill did not constitute an actionable nuisance.
But as
Clerk
& Lindsell’s
description of the tort of private nuisance shows, the category of private
nuisance which consists of interference with one’s neighbour in the
comfortable and convenient enjoyment of his land is quite separate and distinct
from the category which consists of causing actual damage to his land. In
Harrison’s
case and
Andreae’s
case the Court was concerned solely with the first category of nuisance. As
was pointed out
Biard’s
case, all the references in Andreae’s case are throughout to personal
inconvenience and intangible loss. The effect of the rule in
Andreae’s
case, so far as it extends, is to exempt an occupier from liability to his
neighbour in respect of operations on his land which would otherwise constitute
an actionable nuisance. As Sir Wilfred Greene M.R. recognised, when one is
dealing with temporary and normal operations, such as demolition and building,
there are good reasons why, as a matter of policy, the law should expect
neighbours to put up with a certain amount of discomfort and inconvenience;
provided that precautions are taken to see that the nuisance is reduced to a
minimum. However, we see no sufficient reason why as a matter of policy the
law should expect the neighbour, however patient, to put up with actual
physical damage to his property in such circumstances. Where there is physical
damage, the loss should in our judgment fall on the doer of the works rather
than his unfortunate neighbour. No authority has been cited to us in which it
has been held that the rule in
Andreae’s
case applies in respect of physical damage caused by a nuisance. In the
absence of such authority, we hold that it does not and that the Lands Tribunal
answered the first of the three questions raised by the case stated correctly.
We might add that this conclusion accords with the decision of the Supreme
Court of Victoria in
Harris
v Carnegies Pty.Ltd.
[1917] V.L.R. 95 (see particularly at p. 99).
The
second and third questions
Mr
Mould explained that the first limb of question 3 raised by the case stated was
directed to the residual loss in value of the property, which had constituted
one element of the Lands Tribunal’s Award (head (B) above). In his
skeleton argument, he had submitted that no such residual diminution in value
had been identified by the Tribunal in any clear and intelligible way. He did
not, however, pursue this particular point on the appeal, so that we can deal
with the remaining parts of the second and third questions, which concern
rights of access to the property, together.
Mr
Mould accepted that the obstruction by roadworks of a landowner’s direct
access to his house or land, whether that access is from the public highway or
via a private road is a proper subject for compensation under section 10 of the
1965 Act, provided that the
McCarthy
rules are satisfied. The Lands Tribunal had correctly directed itself in this
case that the effects of the works on access to the property could only be
actionable, if at all, as a
public
nuisance, and that to establish a claim on these grounds the respondents would
have to show some special loss in the enjoyment of their access to the
property, greater than that suffered by the general public. Mr Mould, however,
challenged the reasons which led the Lands Tribunal to find that special loss
had been established.
First
he pointed out that the Lands Tribunal had found that the respondents continued
to enjoy both vehicular and pedestrian access to the property throughout the
period of the works. Its finding of liability for the purposes of the second
McCarthy
rule in respect of the respondents’ use of roads and footpaths in the
immediate vicinity of the property was based upon a finding of greater
“temporary” inconvenience having been suffered by the respondents
than that sustained by the public generally. In particular reliance on
Ricket’s
case, he submitted that, in the absence of blocking of access to the property,
this incidence of temporary inconvenience was insufficient in law to amount to
actionable special damage founding a claim under section 10 of the 1965 Act.
He referred us to Lord Cranworth’s diction in
Ricket’s
case at p. 198:
“The
injury must be actual injury to the land itself as by loosening the foundation
of buildings on it obstructing its light or its drains, making it inaccessible
by lowering or raising the ground immediately in front of it, or by some such
physical deterioration.”
The
injury in the present case, it was submitted, must be regarded as purely
personal to the owners, as it was in
Ricket’s
case.
The
latter case, however, as Lord Wilberforce pointed out in the
Argyle
Motors
case (at p. 204g) was really decided on remoteness. The complaint there was
based on a temporary obstruction of the highway which prevented the free
passage of persons
other
than the plaintiff
from resorting to his public house and thereby reduced the profits of his
business. This claim of consequential injury was too remote to justify a
conclusion that the plaintiff’s interest in the house itself had been
injuriously affected within the section: (see at p. 196 per Lord Chelmsford
L.C.).
The
later decision of the House of Lords in
The
Caledonian Railway Company
case which was reached after a review of a number of partially conflicting
decisions (including
Ricket’s
case) is in our judgment clear authority for the proposition that “the
obstruction by the execution of the work of a man’s direct access to his
house or land, whether such access be by a public road or by a private way, is
a proper subject for compensation”: (see at p. 276 per Lord Selborne
L.C.) Lord Selborne went on to point out (at p. 285) that the right of access
by a public road must be sufficiently proximate in order to entitle the owner
of the property to compensation, but it has not been submitted that the right
of access in the present case was physically too remote to qualify. The Member
described the interference as “temporary” but, on the facts found,
it seems plain that both the interference itself and the period over which it
continued were by no means insubstantial.
Accordingly
in our judgment the Lands Tribunal, on the facts found, was entitled to hold
that the effect of the works upon the property, in terms of interference with
the use of the roads and footpaths in its immediate vicinity, amounted to
special damage suffered by the respondents for the purposes of a claim in
public nuisance and were sufficient in law to found a valuable claim for
compensation under section 10 of the 1965 Act.
Finally,
we turn briefly to the issue concerning rat-running. The Tribunal’s
findings of fact in this context have been quoted above. From these findings
it will be seen that the Welsh Office did nothing to encourage rat-running
along the service lane during the course of the roadworks. The incidence of
rat-running was due to the actions of third parties acting independently and
unlawfully as trespassers in using the lane (which was a private way). In
these circumstances the Welsh Office, it was submitted, could not be held
liable for the independent acts of trespassers whom it did not encourage and
over whom it had no control.
In
Cambridge
Water Co. Ltd. v Eastern Counties Leather PLC
[1994] 2 AC 264 Lord Goff of Chieveley, having pointed out that the fact that
the defendant had taken all reasonable care would not of itself exonerate a
defendant from liability in nuisance, observed (at p. 301):
“But
it by no means follows that the defendant should be held liable for damage of a
type which he could not reasonably foresee; and the development of the law of
negligence in that past sixty years points strongly towards a requirement that
such foreseeability should be a prerequisite of liability in damages for
nuisance, as it is in liability for negligence.”
We
have been told that the
Cambridge
Water Co.
decision was not cited to the member and that there was no argument
specifically directed to the foreseeability or otherwise of the rat-running in
the service lane. Correspondingly there was no finding of fact explicitly
directed to that point. The Lands Tribunal, however, found that the
rat-running was a “direct consequence of the temporary obstructions to
the highway which [the Welsh Office] instituted as part of the works”.
In our judgment on the primary facts as found by the Lands Tribunal, it can
readily be inferred that the Welsh Office, when causing the temporary
obstructions to the highway, created a situation in which they must have known
both that the rat-running on the service lane was a probable consequence and
was in fact occurring. Correspondingly, in our judgment, the member was
entitled to find that the rat-running constituted a nuisance, albeit arising
through the acts of trespassers: (compare
Walker
v Brewster
5 Eq. 25;
Sedleigh-Denfield
v O’Callaghan
[1940] AC 880).
Conclusion
This
appeal has been very well argued on both sides. For the reasons given, it has
not in our judgment been shown that the Lands Tribunal erred in law in regard
to any of the three issues raised by the case stated. We accordingly dismiss
the appeal.
Postscript
The
judgment above was prepared in draft and circulated a few days after the
argument on this appeal was concluded. Before it was handed down, however,
another appeal concerning a claim for compensation under section 10 of the 1965
Act, in the case of
Wildtree
Hotels Limited and Others -v- Harrow London Borough Council
,
came on for hearing before Peter Gibson L.J., Pill L.J. and Ward L.J. Since
that case had certain features similar to those of the present case and since
certain arguments were addressed to the court in that case which were not
addressed to us, we thought it right to defer giving judgment until after the
judgments in the
Wildtree
Hotels
case were handed down.
This
in the event occurred on June 11th, 1998. The judgments are briefly reported
in the Times Newspaper reports of June 22nd. In the light of the majority
decision in that case, which might be relevant to the issues in the present
appeal, at least insofar as they relate to the part of the claim which relates
to obstruction of access, we thought it right to afford counsel on both sides
the opportunity to come back to us and address argument on the
Wildtree
Hotels
case, if they saw fit. However, counsel on neither side has thought it
necessary to follow up this invitation. Though this is speculation, counsel
may perhaps have considered that the
Wildtree
Hotels
case would not affect Mr and Mrs Clift’s claim based on physical damage
to their property; and it was this claim which the Welsh Office were
particularly interested in rebutting, in reliance on their interpretation of
Andreae’s
case. Be that as it may, we are in all the circumstances delivering this
judgment on the basis of the arguments addressed to us and without regard to
the judgments in the
Wildtree
Hotels
case. However, those judgments will of course have to be taken into account if
our present judgment ever comes to be considered by another Court.
ORDER:
Appeal dismissed with costs.
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