OCEAN LEISURE LIMITED v WESTMINSTER CITY COUNCIL LCA/30/2003

UPPER TRIBUNAL

LANDS CHAMBER

LCA/30/2003

Case No LCA/30/2003

Between

OCEAN LEISURE LIMITEDApplicant

WESTMINSTER CITY COUNCILRespondent

Before

The President

Barry Denyer-Green (instructed by Charles Russell) for Claimant

Paul Stinchcombe (instructed by CMS Cameron McKenna) for Compensating Authority

Venue 48/49 Chancery Lane, London WC2A 1JR

Date 3 February 2004

Hearing 10 & 11 November 2003

Property: Shop & Premises, 11/14 Northumberland Avenue, London WC2N 5AG

Catchwords: COMPENSATION – injurious affection – hoardings erected in street during construction works outside shop premises – preliminary issue – whether claim under Compulsory Purchase Act 1965 s 10 valid – held claimant entitled to compensation for any diminution in rental value

[1]The claimant in this case, Ocean Leisure Limited, has at all material times occupied shop premises fronting Northumberland Avenue. The shop, which has return frontages to Embankment Place and to Victoria Embankment, sells sailing and diving equipment. Under the River Thames (Hungerford Footbridge) Order 1999 statutory powers were given for the construction of two footbridges across the river on either side of Hungerford railway bridge. The bridges that have now been constructed are known as the Golden Jubilee Bridges. As part of the works, steps and a lift up to the footbridge on the Westminster side of the railway bridge were constructed in Northumberland Avenue outside the claimant’s premises. During the construction works hoardings were erected in Northumberland Avenue and Victoria Embankment outside the claimant’s premises, leaving only a narrow passage between the hoardings and the shop frontages and obscuring the frontages from views beyond the hoardings. For over a year access to the shop could not be obtained from Victoria Embankment. The claimant says that its trade suffered badly as a result, and it seeks compensation under section 10 of the Compulsory Purchase Act 1965 (which was applied by article 6 of the Order). The council say that the claimant is not entitled to compensation, and, on their application, I ordered that the question of whether the claimant has a valid claim should be determined as a preliminary issue. The facts

[2]The parties agreed a statement of facts in advance of the hearing, and they agreed a further statement in the course of the hearing. This reduced the disagreement between them to two particular matters, on which each party called witnesses to give evidence – Ian Ballard, the financial controller of Ocean Leisure, and David Rowlands, its Managing Director and owner, on behalf of the claimant, and Gareth John Hardwick, the project director, on behalf of the compensating authority.

[3]The twin footbridges were a project promoted by the Cross-River Partnership, a body comprising Westminster City Council, the London Borough of Lambeth, Railtrack plc (now Network Rail), London Underground Limited and the Port of London Authority. The Partnership agreed that Westminster City Council should be the undertaker under the 1999 Order.

[4]The subject premises comprise four adjoining shop units known as 11/14 Northumberland Avenue. At all material times they were occupied by the claimant as a single retail unit. They form part of the Embankment Place retail development adjoining Embankment underground station and lying beneath the extensive railway viaducts leading into Charing Cross station from Hungerford Bridge. Each of the units (which are numbered Units 27 to 30 Embankment Place) is the subject of a separate lease. Each has a south facing frontage to Northumberland Avenue. The two corner units, 27 and 30, have return frontages to Embankment Place and Victoria Embankment respectively. There is a service corridor to the rear of each unit leading 3 from Embankment Place. Each of the four units has two windows on the Northumberland Avenue frontage and each window incorporates a central glazed door. Ocean Leisure has installed display features in six of these eight shopfront bays and has kept clear as entrance doors the one in the bay nearest to Victoria Embankment and the one in the second bay along from Embankment Place. There are five bays along the Victoria Embankment frontage, in none of which is there an operating door. There are four bays along the Embankment Place frontage and one of these has an operating entrance door. The premises occupy a secondary retail pitch, but at a busy junction, and they are suited in size and location to the claimant’s retail trade. The four units together have an overall gross floor area of 828m2 or 9,000 sq ft. What is described as a “construction environment” existed in the immediate vicinity during the period of the works.

[5]The leases for each of the shop units are in similar terms. They are for a term of 25 years, from either 25 March or 25 December 1992, expiring in 1017. They contain both a tenant’s and a landlord’s break option, and there is provision for upward only rent reviews. The rent of the four units totalled £70,000 per annum at all material times, except that rent reviews effective on 25 March and 25 December had been implemented, but these have not yet been settled. The landlord’s aggregate rent proposals total £150,000 per annum. In addition there is a service charge payable as rent, which totalled £19,425 in 1993 and is subject to annual indexation. The premises demised by each lease are restricted to the interior of each unit, the landlord retaining responsibility for the main structure and the shop fronts.

[6]In the 1995 rating list for the City of Westminster the premises were entered as a single hereditament as “shop and premises”. The original entry was at a rateable value of £26,700, but this was subsequently amended to £21,800. Following an appeal arising from a proposal based on the effect of the bridge construction works, a further reduction of 20% to £17,400 was agreed with effect from 6 March 2000.

[7]The hoarding along Northumberland Avenue was in position during the period March 2000 to 31 December 2002. It was partly removed on 13 May 2002. The hoarding along Victoria Embankment was in position from August 2001 to 30 September 2002. It was partly removed at the end of December 2001. The southern (upstream) footbridge was opened on 13 May 2002 and the northern (downstream) footbridge was opened on 13 September 2002. The final completion of the works was on 13 December 2002. Signs provided by the claimant indicating that the subject premises remained open for trading were fixed to the hoardings at locations agreed between the contractor and the claimant. Public access was maintained at all material times to the shop entrances in Embankment Place and the Embankment Place end of the Northumberland Avenue frontage. These doors could thus be used at all times for access to the whole of the premises. The Embankment Place door was, however, closed for most of one day during pavement works.

[8]The width between the hoardings and the building was 1.8m, except for a length of 2m where handrails for a ramp reduced the width to approximately 1.2m. There was some fly- tipping, in particular bin-liners and a mattress, behind the hoardings, but not by the contractor. Pedestrians complained to the contractor and to the shop about walking down a dead end behind the hoardings. A moveable iron railing barrier was placed at the Embankment Place 4 end of the Northumberland Avenue hoarding, thus sealing off the whole length of the passage- way.

[9]The witnesses disagreed about the duration of this obstruction. Mr Ballard said that the barrier was in place periodically from August 2001 and for most of the time from January 2002. He said that he was generally in attendance at the premises daily between Mondays and Fridays. He had wanted the barrier put in place because, after the second hoarding was put up people went down the dead-end passageway to use it as a toilet and to sleep. Mr Rowlands, the Managing Director and owner of Ocean Leisure, said that he went to the premises three or four times a month, and he agreed with the statement that the barrier was in place periodically from August 2001 and for most of the time from January 2002. Mr Hardwick, who visited the construction site constantly, said that there was a barrier in that position only infrequently, and the contractor was instructed not to erect a barrier.

[10]The witnesses disagreed also about when the door at the Victoria Embankment end of the Northumberland Place frontage was closed for access to the premises. Mr Hardwick said that he had looked at the whole of the Northumberland Avenue area in October 1999, and then in early December 1999, when, to his recollection, there was a sign on the door saying “please use other door”. The sign remained throughout the duration of the works. Mr Ballard said that towards the end of 1999 an exploratory hole was dug about 6 to 10 feet away from the door, and this made it necessary to close it and not allow access through it for a period of approximately two weeks. Some time later, again towards the end of 1999, a further exploratory hole was dug and this necessitated closing the door for a period of six weeks. It was then closed off during the main works, and it had been closed for most of the time since completion of the works. That was for security reasons, there being inadequate staff at that end of the store. Before the works began the door had been closed on occasions during high winds, which tended to blow it open. Mr Rowlands said that before the works this door had been the main entrance for customers going to the chandlery section of the shop, which was at the Victoria Embankment end. It had occasionally to be closed during high winds.

[11]On these factual disputes, I accept the evidence of Mr Ballard and Mr Rowlands that, before the works began, the door at the Victoria Embankment end of the Northumberland Avenue frontage provided a principal access to the shop and was always open except during periods of high winds. I think it probable that, having been closed during the preliminary works in the winter of 1999-2000, it remained closed for most of the time until in August 2001 it was permanently closed for access to the premises when the Victoria Embankment hoarding was erected. During the period from then until June 2002, the narrow dead-end alleyway between the hoardings and the shop frontage in Northumberland Avenue and Victoria Embankment rendered the frontages effectively useless for display purposes. The door became effectively redundant as a means of access, because it could only be reached along the alleyway from the Embankment Place end of the Northumberland Place frontage, at which point there was another door into the shop. The moveable metal barrier was, I find, in position at that point, preventing pedestrian access along the alleyway. I think it probable that it was there at most times throughout the period August 2001 to June 2002. It was placed there by the contractor with the encouragement of the claimant in order to prevent fly-tipping and other unpleasant activities. The effect of the works during the period August 2001 to June 2002 was to render the shop frontage effectively useless for display purposes and the access to the store 5 along the alleyway behind the hoarding redundant and so unattractive that the claimant, reasonably in my judgment, regarded it as preferable that it should be closed off by the barrier. Case for the claimants

[12]For the claimants Mr Barry Denyer-Green said that the facts showed that the erection of the hoardings and other obstructions had the effect of closing access through the door at the Victoria Embankment end of the Northumberland Avenue frontage for substantial periods between December 1999 and June 2002; and that the hoardings unreasonably obstructed access to and from the premises and the use of the public highway by those visiting the premises. As a consequence the claimant suffered loss of turnover and damage to the rental value of the premises. The works, including the hoardings, were authorised by the 1999 Order, which incorporated section 10 of the 1965 Act, and compensation was payable under this provision for the diminution in the letting value of the premises during the period of the obstructions since, in the absence of the authority’s statutory powers, the loss would have been actionable.

[13]The relevant propositions for advancing a claim under section 10, said Mr Denyer-Green, had been restated and reconsidered by Lord Hoffman in Wildtree Hotels Ltd v Harrow London Borough Council

[2001] 2 AC 1

: firstly that compensation can only be claimed if the injury would have been actionable before the promoter acquired statutory powers; secondly that no compensation is payable if the authority acts outside its powers; thirdly that compensation is only payable for injury to the claimant’s land or interest in land; and fourthly that compensation is payable for injurious affection caused by the execution of the works and not for their operation. The principal issue between the parties related to the first issue – actionability in the absence of statutory powers. On this, Mr Denyer-Green said, a distinction had to be noted between two causes of action. The first arose from the right of access that an owner of land had where his land adjoined a highway. That common law right of access from the highway was a private right. Secondly, there was the cause of action that arose for obstruction of the highway where members of the public wishing to or likely to visit premises were obstructed or deterred from doing so. In such a case the cause of action was public nuisance. Compensation was not payable for loss of profits suffered as a result of the obstruction, but, as established in Wildtree, the proper measure of compensation was the reduction in rental value of the premises during the time that the obstruction continued. For this purpose it was appropriate to consider the premises on a lease by lease basis, so that, if there was no access to one of the units, compensation would be payable for that loss of access even though in fact there was internal access through the other units.

[14]Mr Denyer-Green said that the erection of the hoardings, like the construction of the bridges themselves, would have been unlawful in the absence of the powers contained in the 1999 Order. The hoardings were erected within the limits of deviation for the authorised works, and it was because of the Order that they were not unlawful.

[15]Mr Denyer-Green referred Marshall v Blackpool Corp

[1935] AC 16

at 22 for the principle that obstruction of a person’s access to his premises from the highway is actionable. He relied on Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243, Fritz v Hobson

(1880) 14 Ch D 542

, Ford v Metropolitan District Rly

(1886) 17 QBD 12

and Lingké v Christchurch 6 Corpn

[1912] 3 KB 595

, in each of which, he said, obstruction of an access to the highway was held to be actionable. In Fritz v Hobson, Ford and Lingké the obstruction was temporary, and in Lingké the obstruction made access difficult but not impossible. He noted that Herring v Metropolitan Board of Works (1865) 19 CB (NS) 510, in which compensation was refused in respect of hoardings in the street that had partially obstructed access to the claimant’s business premises, had been distinguished in Lingké. Interference with a right of access to the highway was actionable per se, and there was no test of reasonableness to be applied. Loss of access through the door to Unit 30, considered in isolation, would give rise to a claim, but the obstruction would equally have been actionable notwithstanding that access to the shop premises was available through the other two doors.

[16]The claim, said Mr Denyer-Green, could also be put in terms of public nuisance. To the extent that a test of reasonableness would fall to be applied, as it had been in Herring, the facts of the case brought it within Lingké. Clift v Welsh Office

[1999] 1 WLR 796

showed that a temporary interference with access could give rise to a claim. Although the obstruction caused by the hoardings might have been needed to protect the public from the works, in terms of the position of the claimant it was greater than was reasonable in terms of extent and duration. The question fell to be considered in the absence of statutory powers. Obstruction of a view of the highway from premises adjoining it was held to be actionable in Campbell v Corpn

[1911] 1 KB 869

, and the same would apply, Mr Denyer-Green submitted, where, as here, hoardings interfered with the view of shop windows. Case for the compensating authority

[17]For the compensating authority Mr Paul Stinchcombe submitted that on the evidence the door at the Embankment end of the Northumberland Avenue frontage had never been closed off; that there had never been denial of access to any of the doors; and that the hoardings had never been there to a greater extent or for a longer duration than was necessary for the safety of members of the public using the highway. There was no justification for considering Unit 30 in isolation since all four units traded as a single entity and there were no internal walls dividing them. Of the two sorts of interference complained of, physical obstruction and visual obstruction, no claim in respect of the latter could ever succeed because the law did not recognise the right to a view.

[18]The distinction between the private nuisance of interfering with access to the highway and the public nuisance of obstructing the highway was of no significance, said Mr Stinchcombe, when what was under consideration was the erection of hoardings. It was clear from a long line of authorities that hoardings erected in the highway during construction works on land abutting the highway were only actionable on either basis if the builder was unreasonable. The question of reasonableness was to be judged by reference not to the impact on the claimant but to whether the hoarding was there to a greater extent or for a longer period than was necessary for the job in question. If it was only there to such an extent and for such a period of time as was necessary it was entirely lawful. The hoardings cases were a distinct line of authority, and the reason for this was that hoardings were temporary and an inherent part of the consequence of building, and were necessary in order to protect users of the highway from the works being carried out. Not to erect hoardings would constitute a nuisance because there would be danger 7 to the highway users from the works. It could not be right that the erection of hoardings so as to prevent this nuisance could itself amount to a nuisance.

[19]In Wildtree, said Mr Stinchcombe, Lord Hoffman had identified the dilemma facing a claimant in a case such as this. The right to compensation only arose if the damage would have been actionable in nuisance. Actionability depended on building works being conducted without reasonable consideration for neighbours. However, immunity from liability for building works authorised by statute only arose if the works were carried out with reasonable consideration. Thus, if reasonable consideration was shown, there could be no claim for compensation (since the works would not have been actionable in the absence of the statutory powers); while, if reasonable consideration was not shown, again there could be no claim to compensation but only an action for damages.

[20]In Wildtree, Mr Stinchcombe said, one of the items of claim related to hoardings that had prevented access to the claimants’ premises. Andreae v Selfridge & Co Ltd

[1938] Ch 1

established that there was no cause of action in respect of noise and discomfort suffered by a landowner as the result of construction activities where the developer had taken all reasonable steps to avoid such effects. Where such works abutted a highway, hoardings were one of the types of interference that would arise. Such hoardings were every bit as integral with the construction activities as noise and dust, and the same principle of law applied.

[21]The hoardings cases relied on were Herring and Harper v G N Haden and Sons Ltd

[1933] Ch 298

. The principle in Herring, that obstructions necessary for the convenient and safe use of the highway were not obstructions constituting a nuisance, was accepted by the Court of Appeal in Lingké, on which Mr Denyer-Green had relied. In Fritz v Hobson the plaintiff had succeeded because the obstruction had been greater than occasion required. Discussion

[22]The claim in this case is made under section 10 of the Compulsory Purchase Act 1965. This was incorporated in the 1999 Order, which conferred the power to carry out the works to construct the Golden Jubilee Bridges. Section 10 provides: “(1) If any person claims compensation in respect of any land, or any interest in land, which has been taken for or injuriously affected by the execution of the works, and for which the acquiring authority have not made satisfaction under the provisions of this Act, or of the special Act, any dispute arising in relation to the compensation shall be referred to and determined by the Lands Tribunal. (2) This section shall be construed as affording in all cases a right to compensation for injurious affection to land which is the same as the right which section 68 of the Lands Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds fifty pounds.” 8

[23]In Wildtree Lord Hoffman referred at 7B-8A to certain principles “settled by decisions of high authority” that define the scope of section 10. Firstly, compensation may be payable under the provision where (as in the present case) no land of the claimant has been acquired for the execution of the works. Secondly, a claim only lies in respect of damage that would have been wrongful but for the protection afforded by statutory powers. It is relation to the application of this principle that dispute arises in this case. Thirdly, as a corollary of the second principle, no compensation is payable under section 10 if the person on whom statutory powers have been conferred acts outside his powers. The interaction of this principle with the second principle is a matter to which the compensating authority draw attention. Fourthly, compensation is payable only for damage to the claimant’s land or interest in land. In the light of this principle the claimant here recognises that it has no claim for loss of profits but can only seek compensation that reflects any diminution of the letting value of the premises. Fifthly (a principle of no application in relation to the present claim), no entitlement to compensation under the provision arises in respect of the use of the works.

[24]The claim is based on damage arising from what, the claimant says, in the absence of statutory powers would have constituted nuisance. Mr Denyer-Green rightly pointed to the difference between disturbance of a landowner’s right of access to the highway on the one hand and obstruction of the highway on the other. The first is actionable as the interference with a private right; the second is actionable as a public nuisance on proof of special damage. He put his case on both bases.

[25]The private right of access that the law protects includes merely the right to get from the highway into the claimant’s land and from his land into the highway. It does not include a right to get to and from the claimant’s land by going along the highway, because that is merely the public right of passage. The nature of the distinction between a landowner’s right of access to the highway and the right of highway itself has been explained in a number of cases, notably in Attorney-General v Thames Conservators (1862) 1 H & M 131 per Page-Wood VC at 32, in a passage approved by Lord Cairns in Lyon v Fishmongers Co

(1876) 1 App Cas 662

at 676 and relied on by Fry J in Fritz v Hobson

(1880) 14 Ch D 542

at 554:

“Independently of the authorities, it appears to me quite clear that the right of a man to step from his own land on to a highway is something quite different from the public right of using the highway. The public have no right to step on to the land of a private proprietor adjoining the road, and though it is easy to suggest metaphysical differences when an attempt is made to define the private as distinguished from the public right, or to explain how the one could be infringed without at the same time interfering with the other, this does not alter the character of the right.”

[26]In Chaplin v Westminster Corpn

[1901] 2 Ch 329

Buckley J based himself on these authorities in rejecting the plaintiffs’ claim for an injunction to restrain the erection of a lamp- post that would have interfered with the claimants’ access to their shop premises in Villiers Street. At 334 he said:

“A person who owns premises abutting on a highway enjoys as a private right the right of stepping from his own premises on to the highway, and if any obstruction be placed in his doorway, or gateway, or, if it be a river, at the edge of his wharf, so as to prevent him from obtaining access from his own premises to the highway, that obstruction 9 would be an interference with a private right. But immediately that he has stepped on to the highway, and is using the highway, what he is using is not a private right, but a public right.”

A little later on, having quoted Page-Wood VC in Attorney-General v Thames Conservators he said:

“There you have the two things contrasted – the right of stepping from the private property on to the highway, or from the highway on to the private property, and the right of use of the highway in proximity to the private property. One is a private right, and the other is a public right.”

[27]The interference with access that is complained of relates to the door at the Victoria Embankment end of the Northumberland Avenue frontage. The door itself was not, however, physically obstructed (except for most of one day during paving works, and no reliance is placed on this short interference, rightly in my view). The metal barrier at the end of the alleyway prevented access along the highway to the door. It is a moot point whether in that position it could constitute an interference with the private right of access, but, assuming that it could, the fact is that it was placed there with the encouragement of the claimant. In view of this it does not seem to me that the claimant is able to base its claim on an obstruction that, in the absence of statutory powers, would have constituted the wrongful interference with a private right of access to the highway. Any claim must depend on the claimant being able to establish that, in the absence of the statutory powers, it would have had a right of action in public nuisance in respect of the obstruction of the highway by the hoardings.

[28]Mr Stinchcombe’s contention was that no such right of action would have existed since an obstruction to the highway caused by hoardings which have been properly and necessarily erected for the purpose of protecting the public during the course of building works in or abutting the highway is not actionable in law. He said that the hoardings cases were a distinct line of authority and no distinction was drawn in them between interference with the private right of access to premises and the public right of highway. He relied on Wildtree. He said that any claim for compensation in respect of damage suffered as a result of the hoardings must fail for the same reason that the claim in respect of noise, dust and vibration was held to fail in that case. I start by considering Wildtree.

[29]In Wildtree (

[2001] 2 AC 1

) the claim for compensation related to various forms of interference with the claimants’ use and enjoyment of their hotel during the carrying out of highway works. Lord Hoffman (at 5E) summarised the claim as follows: “The owners of the hotel (‘the claimants’) say that during the period of the works they were subjected to various forms of interference with their use and enjoyment of the hotel. Hoardings were erected which obscured the hotel or prevented or restricted access by themselves and their customers. For long periods the roads and pavements leading to the hotel were totally or partially obstructed or closed. The works caused considerable noise, dust and vibration. All this was very detrimental to business.” 10

[30]The House of Lords held that there could be no claim to compensation under section 10 in respect of the noise, dust and vibration. Lord Hoffman, with whom the other law lords agreed, noted (at 12F) the interaction of three of the principles he had earlier referred to – that claims are restricted to damage caused by the construction of the works; that the damage must have been caused by the lawful exercise of statutory powers; and that the damage must have been such that in the absence of statutory protection it would have been actionable at common law. It would, said Lord Hoffman, be almost impossible for any claim for damage caused by noise, dust or vibration to satisfy all three of those rules. The explanation for this was that, since those were things “productive of sensible personal discomfort” within the meaning of the dichotomy identified by Lord Westbury in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 at 650, the claim was subject to the principle that a reasonable use of land, with due regard to the interests of neighbours, was not actionable. As far as building works were concerned, under the principle stated by Sir Wilfred Greene MR in Andreae v Selfridge & Co Ltd

[1938] Ch 1

at 5-6, actionability at common law depended on showing that the works were conducted without reasonable consideration for the neighbours. On the other hand immunity from liability arising out of the construction of works authorised by statute was subject to a condition that the undertaker will “carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons” (per Lord Wilberforce in Allen v Gulf Oil Refining Ltd

[1981] AC 1001

at 1011). Lord Hoffman said that, in relation to the claim for damage caused by noise, dust or vibrations, he could see no answer to the argument that the damage was either not actionable at common law or else outside the protection of the statute, and that in either case it was not compensatable under section 10. He went on to reject the claimants’ argument that a claimant who has suffered injurious affection from the construction of roadworks which, in the absence of statutory powers would have been a public nuisance, can recover for all damage caused by the construction of the works, whether or not that damage would have been separately actionable. The fact that the roadworks would have constituted a public nuisance did not create a parasitic claim to compensation in respect of noise, dust and vibration. (See 2F-13H.)

[31]Mr Stinchcombe contended that precisely the same considerations as Lord Hoffman had expounded in relation to damage caused through noise, dust and vibration applied in the case of damage arising from the erection of hoardings round works carried out in the highway in the exercise of statutory powers. It is to be noted, however, that, although the claim in Wildtree related also to damage caused by the erection of hoardings and the obstruction of the highways, there is no suggestion in Lord Hoffman’s speech that the same considerations would apply to such damage. On the contrary Lord Hoffman identified the distinction between damage arising from obstruction of the highway and damage arising from noise, dust and vibration in rejecting the claimants’ argument on the latter. At 13G-H he said: “The public nuisance which would otherwise be created by the council’s interference with the highways required statutory authority. But the council, as owners of the soil of the highway, was in other respects entitled to carry on works there in the same way as any other landowner. The question of whether noise and dust created by those works was an actionable nuisance must depend upon the same considerations as would apply to any other works undertaken by a landowner upon his land. The fact that they would have been an actionable public nuisance because they interfered with passage on the highway does not create a parasitic claim to compensation which has nothing to do with passage on the highway.” 11

[32]Moreover Lord Hoffman went on to consider that part of the claim that related to interference with access to the hotel during the construction of the works, and he expressly referred (at 14E) to Herring, the case on which Mr Stinchcombe principally relies, and to Lingké. Although the arguments that he was addressing in this part of his speech were directed to the question whether temporary damage to the value of land is excluded from compensation, and it is right to note that the claim related to both total and partial obstruction, it seems to me improbable that if he had thought that Herring and the other hoardings cases might enable part of the claim relating to obstruction of the highway to be excluded on the same basis as the part relating to noise, dust and vibration he would not have said so. What he said in relation to the effect of interference with access was this (see 14B-C):

“This form of damage, which would at common law have been a public nuisance, is not subject to the rule of give and take applicable to nuisances which cause sensible personal discomfort. If the landowner cannot carry on the works without causing an obstruction of the highway which would amount to a public nuisance, he cannot without statutory authority carry them out at all. It is the statute in such a case that legitimates the public nuisance and gives rise to a claim for compensation under section 10.”

[33]It is clear from this passage that Lord Hoffman was referring to an interference with access arising from obstruction of the highway leading to the claimants’ premises (a public nuisance) rather than the obstruction of the access from the highway, which, as previously noted, would have constituted interference with a private right. He went on to refer to Metropolitan Board of Works v McCarthy and to Caledonian Railway v Walker’s Trustees

(1882) 7 App Cas 259

, in each of which an obstruction of the highway some distance from the claimants’ premises had been held to give rise to a claim for compensation under section 68. I am not sure that Mr Denyer-Green was right in suggesting that McCarthy was a case of interference with a private right of access to the highway. The highway in question was a public dock leading off the Thames, and the dock was destroyed by the authorised works (the construction of Victoria Embankment). The claimant’s premises were situated 20 feet away from the head of the dock. In Caledonian Railway v Walker’s Trustees a two road accesses were interfered with some distance from the claimants’ premises, making them less conveniently accessible. Both these claims were in respect of damage suffered by the permanent works, but the nature of the damage – the loss of value in the claimant’s land arising from the obstruction of the highway – was the same as the damage that Lord Hoffman, and the other law lords, held to be compensatable notwithstanding that it was temporary damage arising from the works of construction. And in holding that a temporary loss of rental value could be the subject of compensation under section 10 Lord Hoffman (at 17D) found “as convincing today as it was then” the example given by Lord Westbury in Ricket v Metropolitan Rly Co (1867) LR 2 HL 175 at 204: “A man gives a rent of £100 per annum for a public house with good custom, long established in some much frequented thoroughfare, which house, if not used as a public house, would not be worth £50 per annum. Suppose, then, that the thoroughfare should be wholly or partially obstructed, and the custom of the house thereby diminished by one-half, is it consistent with common sense to say that the interest of the tenant in the house is not materially prejudiced?” 12

[34]It is moreover to be noted that the recent decision of the Court of Appeal in Clift was cited in argument in Wildtree, and the House of Lords did not suggest that it might have been wrongly decided. In that case the court upheld a decision of the Lands Tribunal in which compensation had been awarded under section 10 in respect of interference, during construction works, with landowners’ enjoyment of public rights of highway. The claimants suffered the effects of a public nuisance “albeit, in the main, for a relatively short period” (see

[1999] 1 WLR 796

at 804A) through having to make journey detours and through rat-running along the service lane behind their property. The works of construction consisted of an improvement to the trunk road in front of their property, and, while the nature of the obstruction that existed for the relatively short period is not described in the report, it is clear that the Court of Appeal held that compensation was properly awarded for its effects, notwithstanding that the obstruction must have been required for the purpose of the construction work.

[35]Mr Stinchcombe, as I have said, argued that those cases in which obstruction to the highway caused by hoardings, properly and necessarily erected for the purpose of protecting the public during the course of building works, had been held not to be actionable constituted a distinct line of authority that was conclusive against the claimants. I will consider these cases shortly, but it is right to say that it would be surprising if a general rule of law of the sort suggested by Mr Stinchcombe were to attach to a particular design of structure. Obstructions to the highway inevitably occur when highway construction works are carried out. A section of road, or a footpath, may be closed in order to ensure that the public are excluded from the construction site. There is clearly no reason in principle why a cause of action, or a right to compensation, should depend on the particular design of the excluding structure. In any event hoardings, whether around works in the highway or around works abutting the highway, may well be erected primarily for the purposes of security than for the protection of the public. It is moreover to be noted that in the two cases relied on by Mr Stinchcombe, Herring and Harper v Haden, the obstructions that were held not to be unlawful included (in Herring) bricks, rubbish and sand and (in Harper v Haden) scaffolding.

[36]The principal authority relied on by Mr Stinchcombe was Herring. In that case the Metropolitan Board of Works, in the exercise of powers conferred on them under section 135 of the Metropolis Management Act 1855, erected a hoarding in Northumberland Street for the purpose of enabling them to reconstruct a sewer running under the street. The hoarding was very close to the access to the claimant’s premises, where he carried on business as a livery stable keeper. Bricks and occasionally rubbish and sand were deposited next to the premises. As a result the access to the premises was rendered less convenient. Two or three men were sometimes required to assist in getting a carriage into the yard in consequence of the obstruction. Section 135 of the Act, which conferred the power to construct and repair sewers in streets, provided that the board should make “compensation for any damage done thereby”. The decision of a magistrate, holding that the claimant was not entitled to compensation, was upheld by the Court of Common Pleas. Of the three members of the court, Montague Smith J based himself on the conclusion that the section provided for compensation only for physical damage. Willes J said ((1865) 19 CB (NS) 510 at 523):

“…I am clearly of opinion that, where the metropolitan board are engaged in the performance of a public work which renders it necessary to erect a hoarding or to deposit materials or rubbish in a public street, the mere fact that thereby the passage 13 along the street becomes more difficult and inconvenient to A than to B and C, gives A no claim to compensation under the act…In other words, it appears to me that, the construction of the hoarding being necessary for the due performance of the works by the board, and the obstruction not having been more than was necessary, or kept for an unreasonable time, would give the appellant no cause of action, and consequently no claim for compensation under the act.”

[37]Byles J said (at 524-525):

“My judgment rests upon this ground, that the injury here complained of, viz the temporary obstruction of the public way, rendering the access to the appellant’s premises more inconvenient for a short time, gave him no cause of action and no right to compensation. As a general rule, all the Queen’s subjects have a right to the free and uninterrupted use of a public way: but, nevertheless, all persons have an equally undoubted right for a proper purpose to impede and obstruct the convenient access of the public through and along the same. Instances of this interruption arise at every moment of the day. Carts and waggons stop at the doors of shops and warehouses for the purpose of loading and unloading goods. Coal-shoots are opened on the public footways for the purpose of letting in necessary supplies of fuel. So, for the purpose of building, rebuilding, or repairing houses abutting on the public way in populous places, hoardings are frequently erected inclosing a part of the way. Houses must be built and repaired and hoarding is necessary in such cases to shield persons passing from the danger from falling substances. If this be the right of private persons, a fortiori must it be the right of a public body to which extensive power is intrusted for the general good of all. On the ground, therefore, that the obstruction here was of a temporary character, and was done for a proper purpose, and not continued for an unreasonable time, I am of opinion that this is not a case for compensation under the Metropolis Local Management Act.”

[38]Herring was the subject of consideration by the Court of Appeal in Lingké. In that case the appellant had been awarded compensation by an arbitrator under section 308 of the Public Health Act 1875 in respect of damage suffered from the laying of a drain in the highway abutting her house and shop. The section provided for the payment of compensation where any person sustained damage by reason of the exercise of powers under the Act. The council’s workmen could not throw into the road the soil excavated for the purpose of laying the drain, and they therefore threw it up against the house and shop, in which the claimant carried on the business of a furniture dealer. The effect of this was that for part of the three months that the work took to complete access to the property was interfered with. Although it was not absolutely impossible “by a process of climbing and by indulging in certain gymnastic feats” to obtain access to the house and shop, the appellant was deprived of ordinary access, so that it was impossible for her to receive or to make deliveries of furniture. In upholding the arbitrator’s award, the three lords justices variously distinguished Herring or said that it should be treated as overruled.

[39]Vaughan Williams LJ said that Herring was simply authority for the proposition that obstruction of the highway through its ordinary use did not constitute obstruction in law (see 14

[1912] 3 KB 595

at 601-603). But the digging of the sewer and its attendant acts, if done by an individual, would have given a cause of action against him. He said (at 604-605):

“I do not think that such a matter in any way falls within the instances of user on the highway which are given by Byles J which are physical obstructions of the highway, or which are justified, because the public could not use the highway unless the authority was allowed such user without liability or cause of action. But when I come to deal with this sewer which is made in the public street I find that the making of that sewer is entirely dependent upon the statute. In those circumstances I think that this instance in no way falls within the principle of the case mentioned by Byles J in detail and by Willes J in general words, in which the physical obstruction is in law not treated as an obstruction.”

[40]Earlier (at 604)

the lord justice had said:

“Putting it shortly, those obstructions which are absolutely necessary for the convenient and safe user of the highway are not deemed by the law to be obstructions of the highway for the purposes of indictment or for the purposes of the individual causes of action. All that was held there as not an obstruction was the hoarding, which I have already pointed out, I think, in the course of discussion, when a house is being pulled down, is essential for the protection of the public, for the protection of the King’s subjects who are using the King’s highway; and you should put up such a hoarding as will prevent the stones and other things which often result in the course of road repairing or building a house, falling upon those who are using the King’s highway.”

[41]Fletcher Moulton LJ observed (at 606) that Herring had been decided before the decisions in the House of Lords which had “shaped the modern interpretation of the clauses which relate to compensation under the Lands Clauses Act and other similar Acts”. At that time, he said (at 608), it had not been decided by the highest authority that in order that there might be a claim for compensation the act must be an act which if done by a private person would have inflicted an actionable wrong on the plaintiff. As the court was bound to follow those decisions, he thought that they must not shrink from giving a decision that overruled so old a decision as Herring (see 606). At 609-610 he said this: “I do not intend to go minutely into the judgments in Herring’s Case. But I would point out that in my opinion Byles J, having stated that the normal user of streets is in a sense a partial and momentary obstruction of those streets, went on to deal with obstructions not arising from normal user at all, as though they were governed by the same rules. The public have the right to use the street as a street and not as a digging ground, and I cannot see what is the good of referring to the momentary interruptions of the street by a normal user. That has nothing to do with the interruptions of that street by the breaking up of the surface by digging. But detailed criticisms of the reasoning of the judges in Herring’s Case would profit little. It appears to me that the decision of the present case rests on the two principles which are now well settled, namely, that plaintiff succeeds if it can be shewn that the act, if it had not been rendered lawful by statutory powers, would have been to her an actionable wrong. Secondly, if that is the case, the mere fact that it only operates during the execution of the work is no bar to her receiving such compensation as that temporary interference with her rights justifies.” 15

[42]Buckley LJ said (at 612):

“I want to say quite shortly as a matter of law what Herring’s Case decided. It decided that a body which by a statute in which is contained a compensation clause is authorized to do defined works is not liable to pay compensation for any such acts done in the execution of the authorized works as would not have been sufficient to support an action for damages if those acts had been done by a private person. If that is all Herring’s Case decides, it seems to me it was quite right. But that is not the purpose for which it has been used before us. It has been used before us for this purpose: There were certain physical acts of obstruction of a highway in that case. The Court, it is said, decided that those physical acts of obstruction were such as that an action for nuisance by reason of those acts could not have been brought against one who had no statutory authority. If it decides that, in my opinion Herring’s Case was wrong.”

[43]It does not seem to me, in the light of these judgments, that it is open to Mr Stinchcombe to rely on Herring as authority for the proposition that an authority that erects hoardings round construction works in a highway that it is carrying out under statutory powers will never be liable to pay compensation under section 10 if the hoardings are no larger and remain for no longer than is necessary. While support for this proposition may perhaps be derived from the passage of Vaughan Williams LJ’s judgment that I have quoted at paragraph 40 above, the majority of the court clearly rejected the contention that the erection of hoardings in connection with construction works in the highway would not have constituted a nuisance if done without statutory power.

[44]It is in my judgment fallacious to say that, as the occupier of premises adjoining a highway may obstruct the highway by erecting hoardings to a reasonable extent and for a reasonable time in connection with building works on his premises, so an authority, carrying out in the highway works that it is empowered by statute to carry out, may obstruct the highway with hoardings that surround such works. The fallacy in Mr Stinchcombe’s argument in my judgment is this. The right of an occupier of premises adjoining a highway to obstruct the highway by erecting hoardings to a reasonable extent and for a reasonable time in connection with building works on his premises is simply an aspect of his right to gain access to his premises from the highway. The right of access is not simply the right to pass from the highway onto the premises. It encompasses also the right of access to the walls, for example for the purposes of displaying advertisements: see Cobb v Saxby

[1914] 3 KB 822

. And it encompasses the right of access for the purpose of the construction, alteration or repair of buildings. If scaffolding or hoardings are needed for such operations, the landowner is entitled to erect them, notwithstanding that they obstruct the highway. But he is entitled to erect them because they are required for the exercise of his common law right of access from the highway to his premises. The entitlement to erect them is thus part of the common law right of access. By contrast construction works in a highway can only be carried out under statutory authority. Authority for any obstruction of the highway, whether caused by the permanent works or arising otherwise in connection with such works, must be derived from statute. It can have no other source.

[45]This distinction between works carried out by the owner of premises abutting the highway and works carried out in the highway pursuant to statutory powers needs to be borne in mind in 16 considering another case on which Mr Stinchcombe relies. This is Harper v G N Haden and Sons Ltd. It was an action for damages by the occupier of a ground floor and basement shop against the tenants of the upper floors who, in order to construct an additional storey, erected scaffolding and a hoarding that obstructed the highway outside the plaintiff’s premises. The Court of Appeal reversed the decision of Bennett J, who had held that the obstruction was unlawful. The judge found as a fact that the obstructions were not greater than were reasonably necessary for the purpose of carrying out the operations and did not continue for longer than was reasonable (see 301-302). However (see 316) he felt constrained to hold that the obstruction was unlawful by the statement of Fletcher Moulton LJ in Lingké (

[1912] 3 KB 595

at 608):

“If there is a public right such as the user of a street and it is interfered with by an individual, that interference does constitute an actionable wrong and give a right to damages to those members of the public who can prove special damage therefrom.”

[46]In the Court of Appeal one of the lords justices, Lawrence LJ, concluded in the defendants’ favour on the basis that the obstruction was lawful because the defendants had complied with the relevant provisions of the Metropolitan Management Act 1855. Romer LJ said (at 316- 317) that Fletcher Moulton LJ did not mean that any member of the public who found himself obstructed when passing along a highway was entitled to complain of the obstruction if he sustained special damage, and he pointed out that elsewhere in his judgment the lord justice had recognised that the right of a member of the public to use the highway was subject to the reasonable user of others and no legal cause of action arose if that reasonable user caused obstruction. He quoted (at 317) the statement of Byles J in Herring on the right of a person to obstruct the highway for the purpose of repairing his house, and (at 319) he noted, and agreed with, Vaughan Williams LJ’s approval of this statement.

[47]Lord Hanworth MR, having referred (at 302-303) to a number of authorities, set out three propositions which he founded upon them, the first of which was:

“A temporary obstruction to the use of the highway or to the enjoyment of adjoining premises does not give rise to a legal remedy where such obstruction is reasonable in quantum and in duration.”

Among the authorities he had referred to was Herring. It had been argued (see 304) that Herring could no longer be regarded as sound in law, and, confronting this argument, Lord Hanworth said (at 305-306) that in Lingké Vaughan Williams LJ had expressly accepted the principle on which Herring had been decided, while Buckley LJ did not quarrel with it and Fletcher Moulton LJ’s observations on it were obiter. It does not seem to me that it is possible to treat this as authority for the correctness of Herring in relation to the erection of hoardings round statutory works in the highway. The other members of the court did not express themselves in the same terms as Lord Hanworth, and there is no reason to believe that Lord Hanworth himself had in mind the question of hoardings round statutory works in the highway. The case was about the right of an owner to obstruct the highway with scaffolding and hoardings that are reasonably necessary for works to his building. It was Byles J’s statement on this that was the focus of approval (and the target of challenge by the plaintiff), and there is nothing in any of the judgments in Lingké to suggest disagreement with it.

[48]In the present case the compensating authority were entitled to erect the hoardings by virtue of their power to construct the works under the 1999 Order. Article 3(1) of the Order conferred the power to construct the works specified in Schedule 1 to the Order, and under article 3(3) the undertaker was empowered to carry out such other works (of whatever nature) 17 as might be necessary or expedient for the purpose of, in connection with or in consequence of, the construction of the scheduled works. Under article 5 the undertaker was empowered to execute street works for the purposes of the authorised works, including the breaking open of streets, the placing of apparatus there and the execution of any works required for or incidental to these purposes. In the absence of these statutory powers the erection of the hoardings would have been unlawful. In my judgment, therefore, the claimant in the present case is entitled to compensation under section 10 for any diminution in the rental value of its premises that may have been caused by the obstruction of the highway by the hoardings.

[49]I would add that any loss suffered as the result of the premises being less visible because of the hoardings would not, in my judgment, be recoverable. Mr Denyer-Green was unable to identify any authority that suggested that the occupier of premises adjoining the highway was entitled to a view from the highway to his premises, and I can see no reason in principle why such a right should exist. He did refer to Campbell v Paddington Corpn

[1911] 1 KB 869

in which the plaintiff had been successful in his action for damages against the council which had unlawfully erected a stand in the highway for the purpose of enabling spectators to view the funeral procession of King Edward VII. The stand blocked off views of the procession from the plaintiff’s balcony and windows, for the use of which he was to have been paid a substantial amount of money. The Court of Appeal upheld the decision. It seems to me, however, that this decision is probably best regarded as being related to its own particular facts. But even if it is authority for there being a right on the part of a frontager to view the highway, it is no authority for the proposition that he has a right to view his property, and to have others view it, from the highway. Conclusion

[50]I determine that the claimant is entitled to compensation under section 10 for any diminution in the rental value of its premises that may have been caused by the obstruction of the highway by the hoardings. The parties are invited to make submissions on costs in relation to the determination of this preliminary issue, the decision on which will become final when the question of costs has been determined. A letter about submissions on costs accompanies this decision. Directions will in due course be given for the further conduct of these proceedings. 31 December 2003 George Bartlett QC, President ADDENDUM ON COSTS 18

[51]I have now received the parties’ submissions on costs. The claimant asks for its costs of the preliminary issue, which, it says, was determined effectively and substantively in its favour. The compensating authority submit that there should be no order as to costs. Further they submit that no order as to costs should be made until any appeal that may be made against the decision has been decided by the Court of Appeal or the time period for lodging such appeal has expired.

[52]Taking the compensating authority’s latter point first, I do not think that it would be appropriate to postpone a decision on costs pending a possible appeal. Indeed it must, I think, be appropriate that I should at this stage make a decision on the claimant’s application for costs so that, if that decision is challenged, it can be considered by the Court of Appeal at the same time as any appeal on the substantive decision. I would add that I intended, in accordance with standard Lands Tribunal practice, that my decision of 31 December 2003 should not take effect until the question of costs had been determined, so that the time limit for application to the Court of Appeal for permission to appeal would not begin to run until the decision on costs had been made, but I failed to state this in terms. The final paragraph of my decision should be read as though this had been stated.

[53]The compensating authority resist the claimant’s application for costs on four grounds. Firstly they say that the claimant has achieved only partial success. The claim, for £282,000 loss of profits, was in respect of loss alleged to have been caused in three ways: nuisance from noise and dust during construction works, nuisance caused by the hoardings obstructing the highway and obstructing access to the premises from the highway, and nuisance caused by the hoardings interfering with the visibility of the premises from the highway. The argument on noise and dust was abandoned at the door to the Tribunal, and it was only in relation to loss of profits arising from the obstruction of the highway by the hoardings that the claimant was successful. So, the authority suggest, the claimant has won on only a small part of its claim.

[54]In my view the claimant is right in saying that on the trial of the preliminary issue it has succeeded in establishing the substance of its claim – that it has a valid claim under section 10 by virtue of the obstruction caused by the hoardings, (The question whether as a result of this obstruction it in fact suffered loss did not arise on the preliminary issue.) While in respect of certain features of the obstruction, access to the premises from the highway and the interference with visibility, I did not accept the claimant’s submissions, the decision has established that there is a valid claim. Given its success in thus establishing the substance of its claim, I do not think that it would be right to deprive the claimant of any part of its costs on the basis that it has not been successful on every aspect of the preliminary issue. In any event it does not appear to me that any significant time was taken up before or during the hearing with the question of visibility, and no time at all was spent on the question of noise and dust.

[55]Secondly the compensating authority say that the claim was exaggerated and that the claimant should be deprived of its costs on this account. They point out that the claim was couched in terms of loss of profits whereas compensation would in law fall to be assessed on the basis of the reduction in rental value of the premises, and moreover the amount claimed exceeded the total rent paid for the relevant period. The claimant draws attention to a letter of 8 April 2003 from 19 Winbourne Martin French, the surveyors acting for it in relation to the claim, to Dunlop Heywood Lorenz, the authority’s consultants. The letter stated:

“The correct basis for the claim should be the diminution in rental value during the works.”

Whether or nor the claim as submitted was exaggerated, the basis of the claim – the diminution in retail value – was clearly established by the time of the preliminary hearing. The preliminary issue required to be determined whatever the size of the claim, and I can see no need, even if the claim as originally submitted was exaggerated, to mark this by depriving the claimant of all or part of its costs of the preliminary issue.

[56]Thirdly, the authority say that the claimant failed to take adequate legal advice early in the proceedings, with the result that costs were incurred in encouraging the claimant properly to plead and particularise its claim. This, however, in my view, is a matter that goes not to the costs of the preliminary issue, but to the costs of the proceedings in the reference as a whole. The authority also say that the claimant was unhelpful in agreeing the statement of facts and was very slow, necessitating repeated requests by the authority to agree facts, and they say moreover that, contrary to the order of the Tribunal requiring a statement of facts, witness statements were submitted to the Tribunal without leave. It does not appear to me, however, that the authority have been put to any significant additional expense as a result of the conduct of which they complain. Evidence was called, with my permission, based on the witness statements, and this assisted in establishing the facts on which my decision was based.

[57]Finally, the authority say that the claim raises points of law of considerable public importance. I accept this, but I cannot see why this should constitute a reason for depriving the claimant of its costs when it has been substantially successful in establishing the legal basis for its claim.

[58]The proper order in my view is that the compensating authority should pay the claimant’s costs of the preliminary issue, such costs if not agreed to be the subject of a detailed assessment by the Registrar on the standard basis. Dated 3 February 2004 George Bartlett QC, President 20