“Whether, if the claimant has suffered loss through the diminution in value of its leasehold interest in the premises due to the carrying out of the works, it is entitled to compensation undersection 10 of the Compulsory Purchase Act 1965 .”
“(a) the construction of the new trunk roads at Ardley in the Parishes of Ardley and Stoke Lyne, in the District of Cherwell in the County of Oxfordshire, in pursuance of the Trunk Road Orders; (b) the construction and improvement of highways and the provision of new means of access to premises at Ardley in the Parish of Ardley in the County of Oxfordshire, in pursuance of the Side Roads Order; 4 (c) the improvement of the Trunk Road at Ardley; (d) use by the Secretary of State in connection with such construction and improvement of highways; (e) the mitigation of adverse effects which the existence or use of the highways proposed to be constructed or improved will have on their surroundings.”
“The Works commenced in or around February 2001 and were completed in or around September 2002. The execution of the Works generally during this period caused disruption to the operation of the CVMSA, and in particular the ability of vehicles readily or conveniently to access the CVSMA from the Ardley Interchange.”
“(1) This Part of this Act shall apply in relation to any compulsory purchase to whichPart II of the Acquisition of Land Act 1981 , or Schedule 1 to that Act, applies... (2) In construing this Part of this Act the enactment under which the purchase is authorised and the compulsory purchase order shall be deemed to be the special Act… (4) In this Part of this Act ‘the works’ or ‘the undertaking’ means the works or undertaking, of whatever nature, authorised to be executed by the special Act…”
“(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 whichsection 68 of the Lands Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds fifty pounds.”
“(1) Provision may be made by an order under this section in relation to a trunk road or a classified road, not being, in either case, a special road, for any of the following purposes:- (a) for authorising the highway authority for the road – (i) to stop up, divert, improve, raise, lower or otherwise alter a highway that crosses or enters the route of the road or is or will be otherwise affected by the construction or improvement of the road; 7 (ii) to construct a new highway for purposes concerned with any such alteration as aforesaid or for any other purpose connected with the road or its construction, and to close after such period as may be specified in the order any new highway so constructed for temporary purposes.”
“The expression ‘the special Act’, used in this Act, shall be construed to mean any Act which shall hereby be passed which shall authorize the taking of Lands for the Undertaking to which the same relates, and with which this Act shall be so incorporated as aforesaid… …and the Expression ‘the Works’ or ‘the Undertaking’ shall mean the Works or Undertaking, of whatever Nature, which shall by the special Act be authorized to be executed.”
“In considering Mr Jolliffe’s claim for compensation, it is necessary to distinguish between the stopping up of the highway (Coombe Street) and the compulsory acquisition of land. In order to stop up the highway, the Minister of Transport made an order under section 49 of the Town and Country Planning Act, 1957. It was contained in the Stopping up of Highways (City and County of Exeter) (No.3) Order, 1962 (S.I. 1962 No.1276), and was dated January 6, 1962. It authorised the stopping up of various streets in Exeter, including this part of Coombe Street. But it is important to observe that the Act of 1947 contains no provision for compensation. In this respect the Act is like the old Highways Act, 1835. The legislature provided for local inquiries and confirmation by quarter sessions. But no provisions for compensation. Under that Act the stopping up might ruin a man’s trade, but he could recover no compensation. So here, the stopping up of Coombe Street may damage Mr Jolliffe’s trade in that street, but he can recover no compensation on that account. In order to acquire the land they needed, the corporation of Exeter, as highway authority, made an order under section 214 (1) of the Highways Act, 1959. They made a compulsory purchase order on May 24, 1960, and it was confirmed by the Minister of Transport on February 27, 1962. But it is important to notice that none of Mr Jolliffe’s land was acquired. The corporation already owned most of the land they needed for the new inner by-pass road. All they needed in the vicinity of Coombe Street were two parcels of land. These two parcels were shown coloured pink on the plan. They are near to Mr Jolliffe’s garage but on the opposite side of the street. They were not part of the street but alongside it.”
“Mr Jolliffe is, therefore, entitled to compensation for injurious affection due to the execution of the works. What are the ‘works’? The works are the works authorised by the ‘special Act’. The ‘special Act’ is defined by the Act of 1946 as the ‘enactment under which the purchase is authorised and the compulsory purchase order.’ In this 10 case that is section 214 (1) of the Highways Act, 1959, and the compulsory purchase order. The works authorised by those provisions are the works on the pink land, and not the works in Coombe Street itself. The result is this: If the road works executed on the two parcels of pink land had injuriously affected Mr Jolliffe’s land, he would have been entitled to compensation. But it is apparent that the works on those two parcels (taken by themselves) did not affect Mr Jolliffe’s land at all. They were near Coombe Street, but not across it. So they did not affect the use of Coombe Street. The thing which affected Mr Jolliffe’s land was the stopping up of highway, for which there is no compensation.”
“....The authorised ‘works’ here were only the works on the pink land. It was not those works which caused the damage to Mr Jolliffe.”
“....The stopping of the highway was a separate step altogether. It was not done in the execution of the authorised works, that is the works on the pink land. It was done by the Minister under a separate statute. The injury to Mr Jolliffe would have been just as great if the highway had been stopped up by a barrier without any road works at all. In my opinion the injury to Mr Jolliffe was done by the stopping up of the highway, for which the statute has not provided compensation. He must rest content with the advantageous site which has been let to him on the by-pass. I would allow this appeal, refuse the declaration asked, and enter judgment for the defendant.”
“I agree. The judge obviously saw the difficulty caused by the fact that the stopping up of Coombe Street was done by the order of the Minister under section 49, as it then was, of the Town and Country Planning Act, 1947.”
“I respectfully say that I cannot agree with the judge in this conclusion. It is a novel doctrine that, if the Minister exercises a power which he can exercise without incurring a liability to pay compensation to anybody, the fact that the exercise of that power is done at the request of a local authority imposes an obligation upon them and places them under a liability to pay compensation. What was done by the Minister when he made the stopping-up order was done under the power given to him by section 49; and the stopping up could not in any sense be said to be works authorised 11 by the special Act, which was, of course, the compulsory purchase order. I agree the appeal should be allowed.”
“....This seems to me really to establish the contention of the corporation that the execution of the works authorised, that is to say, the construction of the highway, did not have any injurious effect on the plaintiff’s property. The damage was already done. Coombe Street, before a pick or spade had been laid on the works, had been turned into a cul-de-sac so far as the plaintiff was concerned.”
“It was common ground that the relevant provision of the 1999 Order was article 16 (not article 6, mentioned by the Tribunal). That article provided for the application of Part I of the 1965 Act to ‘the acquisition of land under this order’. The relevance of 12 that provision is not obvious, since no land in the vicinity appears to have been ‘acquired’ as part of this Order. However, counsel for the claimant helpfully pointed out that section 1 of the 1965 Act, which introduces Part I, is also apparently limited to acquisition of land, but that has never been held to limit the application of section 10.”
“The learned Counsel for the Respondent proposed the following rule as a guide to the decision of each case. Where by the construction of works authorized by the Legislature there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of, in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation. I think the rule as thus stated may be accepted with this necessary qualification, that where the right which the owner of the house is entitled to exercise is one which he possesses in common with the public, there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world.”
“The question therefore is, whether the Respondent, as the owner of premises which were in close proximity to the public drawdock, has by its destruction suffered an injury and damage differing in kind from that of the public in general? ....”
“Holding, as I do, Beckett’s Case (2) to have been rightly decided, it appears to me that the present case is scarcely distinguishable from it. As in Beckett’s Case, the Respondent’s premises abut upon a highway, and his access from his premises to the river Thames, and from the river to his premises, was by means of this highway, which was partly land and partly water. The Board of Works narrowed the highway by destroying that part of it which consisted of the dock and which was farthest from his premises, and by this narrowing of the highway by the destruction of the dock the Respondent’s premises are stated in the special case to have been permanently damaged and diminished in value.”
“I have read this part of the judgment at length from which I think it sufficiently appears, that the judgment did not proceed on the ground that the obstruction to the water highway was opposite to the plaintiff’s premises, but this appears more clearly by a reference to the case at large which shews that the damage was all occasioned by making the embankment across the mouth of the drawdock, more than 400 feet from the plaintiff’s premises and so cutting him off from the Thames. Probably when that was done, the rest of the drawdock now rendered useless was filled up, though that is not stated in the case, but whether it was filled up or not, the damage to McCarthy’s premises would be the same.”
“Now I do not dispute that an obstruction to a highway may be so distant from lands, that no one could reasonably find that the lands were appreciably damaged by the obstruction, but I think it unnecessary to try to give a definition of that distance. It is enough to say that in this case the distance is not too great.”
“I cannot find a single word in the opinion of the noble and learned Lords who decided McCarthy’s Case (1), or anything in the facts of that case, capable of giving a colour to the appellants’ contention. In point of fact, the appellants’ works obstructing Canal Street and Victoria Street, are less than 100 yards from the respondents’ property, whereas the works of the Metropolitan Board, by which his access to the Thames was cut off, were upwards of 120 yards distant from, and were in no reasonable sense ex adverso of, Mr McCarthy’s premises. Probably the dock, which came to within twenty feet of the premises, would be discontinued after it ceased to have communication with the river; but it seems plainly to follow from the judgments 18 delivered in that case, that if McCarthy’s access, instead of being wholly cut off by the river wall which the Board erected, had been made so inconvenient that the value of his premises was in consequence materially lessened, he would still have had a good title to compensation.”