England and Wales Court of Appeal (Civil Division) Decisions

Pill L.J.: This is an appeal by way of case stated from a decision of His Honour Judge Rich QC, sitting as a member of the Lands Tribunal, on 10 December 1996. The Member had agreed to consider legal issues arising under section 10 of the Compulsory Purchase Act 1965 (“the 1965 Act”) as preliminary points.

While ownership is more complex, Wildtree Hotels Ltd (“the appellants”) can for present purposes be treated as the owners of hotel premises known as The Harrow Hotel in Harrow. Exercising powers under the Highways Acts and a compulsory purchase order confirmed in March 1986, the London Borough of Harrow (“the respondents”) undertook a complex road improvement scheme on land near the hotel for a period of five years between 1989 and 1994. No land was taken from the appellants.

In their amended points of claim, the appellants submit that the respondents interfered with public or private legal rights of the appellants as owners of the premises “which said interferences were the consequence of the carrying out of the works”. Particulars are given under four headings (1) “Nuisance by noise, dust and vibration” (£310,500), (2) “Nuisance by erection of hoardings” (£124,000), (3) “Nuisance by obstruction of access to and from public highway” (£248,400) and (4) “Nuisance by obstruction of public highways” (£434,700). The claim is made under section 10 of the 1965 Act.

The questions posed, at the request of the appellants, for the opinion of this Court are:

1. Whether the Lands Tribunal erred in deciding that compensation is not payable under section 10 of the 1965 Act where an interference to some legal right, public or private, is not a direct interference to land.

Following comments in this Court, the words “or a right appurtenant to land” have been added.

2. Whether the Lands Tribunal erred in law in deciding that where there has been interference with some legal right, public or private, which is capable of giving rise to a claim for compensation under section 10 of the 1965 Act, the quantum of damages recoverable as compensation does not include all injurious affection attributable to and caused by the execution of works whether or not caused by an interference, physical or otherwise, with some public or private legal right.

A third question has been posed at the request of the respondents:

3. Whether the Lands Tribunal erred in law in holding that compensation is payable under section 10 of the 1965 Act where the interference with a legal right in respect of land or an interest in land is only temporary and where after such temporary interference, the value of the land or the interest in the land has ceased to be affected at the valuation date.

The valuation date has been agreed as the date when the relevant works were complete, the respondents accepting that, if the answer to Question 3 is adverse to them, compensation for temporary damage which comes to an end on the completion of work must also be assessed.

The appellants claim the sum of £1,242,000. In the amended points of claim, precise claims are made under each of the four headings mentioned above and these sums form the bulk of the sum claimed. The Court was told that the sum claimed is based on a capitalisation of the loss of rental value over the period of the works. In his report, the appellants’ expert witness stated “that the temporary loss in value to the land and buildings which can be claimed under section 10 of the 1965 Act is in the region of £1,242,000”. No explanation was given as to how the precise sums claimed under the four headings mentioned above arise from the global sum or how they are otherwise calculated.

Section 10 of the Compulsory Purchase Act 1965 under the heading “Further provision as to compensation for injurious affection” provides:

(1) If any person claims compensation in respect of any land, or any interest in land, which has been taken for or injuriously affected by the execution of the works, and for which the acquiring authority have not made satisfaction under the provisions of this Act, or of the special Act, any dispute arising in relation to the compensation shall be referred to and determined by the Lands Tribunal.

(2) This section shall be construed as affording in all cases a right to compensation for injurious affection to land which is the same as the right which section 68 of the Land Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds £50.

Section 68 of the Lands Clauses Consolidation Act 1845 (“the 1845 Act”) provides:

If any party shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this or the special Act, or any Act incorporated therewith, ... such party may have the same settled ....”

Section 7 of the 1965 Act deals with the measure of compensation in cases of severance where land is taken from the claimant. It provides:

“In assessing the compensation to be paid by the acquiring authority under this Act regard shall be had not only to the value of the land to be purchased by the acquiring authority, but also to the damage, if any, to be sustained by the owner of the land by reason of the severing of the land purchased from the other land of the owner, or otherwise injuriously affecting that other land by the exercise of the powers conferred by this or the special Act.”

It has long been established that different considerations apply under section 7 of the 1965 Act where land is taken from the claimant and section 10 where it is not. In Horn v Sunderland Corporation [1941] 2 KB 26, Scott LJ considered, at p 42, the difference between the two equivalent sections in the 1845 Act, sections 63 and 68. Scott LJ considered the rights of the owner compelled to sell land. He stated:

“That Act ... possesses two leading features. The first is that what it gives to the owner compelled to sell is compensation ... In other words, he gains the right to receive a money payment not less than the loss imposed on him in the public interest, but, on the other hand, no greater. The other is that the legislation recognises only two kinds or categories of compensation to the owner from whom land is taken: (1) the fair value to him of the land taken, and (2) the fair equivalent in money of the damage sustained by him in respect of other lands of his, held with the lands taken, by reason of severance or injurious affection. For compulsory acquisition those are the only two kinds of statutory compensation. There is a third kind given by the Act, namely by section 68, but that has nothing to do with compulsory acquisition. It is a remedy for injuries caused by the works authorised by the Act to the lands of an owner who had none of his land taken in that locality. The remedy is given because Parliament, by authorising the works, has prevented damage caused by them from being actionable, and the compensation is given as a substitute for damages at law. The rights conferred by section 68 have no direct or positive relevance to the question we have to decide, but negatively the section is important, just because there is nothing in it, in my opinion, which bears on our question. Whether the words ‘taken for or’ in the second line of section 68 have any meaning or were a mere clerical error, it is unnecessary in the present case to speculate, for it is notorious that section 68 has always been construed as applying only to lands not held with lands taken.”

It is well established that under section 63 (and now section 7) compensation is payable for loss due to the acquisition described as disturbance. Different principles have evolved upon section 10 from those upon section 7 and the right to, and the assessment of, compensation where land is taken does not assist in considering the principles to be applied under section 10. The distinction was recognised in Cowper Essex v Local Board for Acton (1889) 14 App Cas 153. Lord Halsbury LC stated, at p 161,:

“But a second proposition is, it appears to me, not less conclusively established, and that is, that where part of a proprietor’s land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor’s land, then such damage may be an injurious affecting of the proprietor’s other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing had been taken for the purpose of the intended works.

It may seem at first sight a little strange that what is injurious affecting in one case should not be in the other. But it is possible to explain that apparent contradiction by the consideration that the injurious affecting by the use, as distinguished from the construction, is a particular injury suffered by the proprietor from whom some portion of the land is taken different in kind from that which is suffered by the rest of Her Majesty’s subjects.”

Lord Macnaghten stated at p 177, that “it may be said that an adjoining lessee or owner from whom no land is taken might suffer in the same way, and that he would be without redress. That is true. But I cannot see why a person whose case is within the spirit and within the very letter of the Act should be deprived of the full measure of compensation because his neighbour, who is not within the Act at all, is perhaps hardly dealt with.”

Four propositions upon section 10 are commonly stated to emerge from decisions of the House of Lords, to which I will refer, of long standing and only one of them is in issue in this case. It is common ground, first, that under section 10 the injurious affection must be the consequence of the lawful exercise of statutory powers, second, that the injurious affection must arise from that which if done without statutory authority, would give rise to a cause of action, and, third, that when damage arises, not out of the execution, but only out of the subsequent use of the work, there is no case for compensation.

What is in issue is the scope of the remaining proposition:

“Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which right gives additional market value to such property, apart from the use to which any particular owner or occupier might put it, there is a title to compensation if, by reason of such interference, the property, as a property, is lessened in value.”

(Proposition of Counsel, Mr Thesiger QC, in Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 as stated by Lord Cairns LC at p 253 and substantially accepted by the House.)

For present purposes, it is common ground that the interference claimed to have occurred under the four headings in the amended points of claim was the inevitable consequence of the carrying out of the works and that requirement is satisfied. In summary, the appellants’ case on Question 1 is to rely upon the principle that injurious affection arises from acts which, if done without statutory authority, would give rise to a cause of action and to submit that the principle applies to such matters as noise, dust and vibration which are capable of being actionable wrongs or a nuisance. The test is whether the injurious affection is attributable to interference which is capable of being an actionable wrong and not whether the interference capable of being an actionable wrong is physical interference. The value of land may be affected by the works without there being direct physical interference.

The submission on the second question goes further and is that compensation is payable for all injurious affection whether or not attributable to what would otherwise be an actionable wrong. Once it is established that there would have been a cause of action if the work had been done without statutory authority, the appellants are entitled to compensation for all the damage resulting from the works whether particular items of damage would or would not have been actionable. The principle in Andreae v Selfridge [1938] Ch 1 does not apply to public works, it is submitted.

As to the third question, on which the Member found in the appellants’ favour, it is accepted by the appellants that diminution in the value of the land resulting from the works must be established but submitted that compensation is payable for temporary diminution in value during the works and not only upon a valuation when works are completed. The Member relied upon the decision of the Court of Appeal in Ford v Metropolitan and Metropolitan District Railway Companies [1886] 17 QBD 12. Question 3 raises a fundamental question, which must be considered with Question 1, on the scope of section 10 of the 1965 Act.

For the appellants, Mr Joseph Harper QC submits that in its approach to section 10 the Court should have regard to the principle of equivalence stated by Lord Nicholls in Director of Buildings and Works v Shun Fung Ironworks Ltd [1995] 2 AC 111, 125, a case where land was acquired:

“No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss.”

Mr Harper submits that the Court should take the opportunity to end the confusion which he says has existed in the law on injurious affection for a century. He accepts that section 10 is concerned with diminution in the value of land. He submits that the rational construction of section 10 is that the owner of an interest in land is entitled to compensation under the section whenever the value of land is adversely affected by the execution of the works however that adverse effect occurred. A temporary diminution of value during the execution of the works is also to be reflected in the compensation payable.

Before considering the mid and late 19th century cases, and it will be necessary to do so, it is appropriate to refer to Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99. The plaintiff company was tenant from year to year of premises in which it carried on a car dealing business. In the course of local authority works, access to the premises was obstructed. The company sought compensation under the local Act, into which section 68 of the 1845 Act was incorporated, in respect of loss of profit of the business. It was held in the House of Lords that compensation under section 68 could be obtained only in respect of some loss of value of land or damage to land and not for a loss which was personal to the owner or related to some particular use of the land.

Giving the leading speech, Lord Wilberforce confirmed that section 68, by the force of judicial interpretation, was a compensation section and not merely procedural. It authorised the payment of compensation both in respect of any lands or any interest therein which shall have been injuriously affected by the execution of the works. Of section 68 Lord Wilberforce said at p 129 A:

“The relevant section ... has, over 100 years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording - which itself has an earlier history - in some sort of accord with the realities of the industrial age. The local Act, as is common with land acquisition and works legislation, contains a farrago of sections, loosely pinned from various precedents, which have neither internal clarity nor mutual consistency. In face of this, the normal tools of interpretation fail to operate: attempts to construe the Act as a whole lead to perplexity: to attribute a consistent meaning to particular words (‘works’ or ‘subsidiary’) leads to perplexity: to try to ascertain the intention of Parliament leads to conflicting conclusions. In fact, golden rules must yield to instruments of baser metal. One can only search for the occasional firm foothold and cautiously proceed from there.”

Lord Wilberforce referred to Ricket v Metropolitan Railway Co (1867) LR 2 HL 175, Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas 259, Lord Wilberforce made these statements of principle. At p 129 G he stated:

“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,’ ie 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.”

At p 130 H Lord Wilberforce stated:

“... if the right to compensation in the present case depends upon section 68 the appellants cannot succeed in obtaining compensation for business losses as such. I make it clear, as did the Court of Appeal, that if they can prove that a loss of profitability affects the value of their interest in the land they can recover compensation for this loss of value.”

In the course of considering Ricket, Lord Wilberforce stated at p 130 F:

“As a matter of language, though language is an uncertain guide in this statute, it must be said that the words I have quoted ‘in respect of any lands, ...’ support the exclusion of claims for personal loss. And, though it might be said that a generous policy of compensation would favour compensation for losses caused to individuals through works of social benefit, a policy to this effect, however just it might appear in a particular case, involves too great a shift in financial burden and too many adjustments or qualification (if it were to be workable) to be suitable for introduction by judicial decision.”

Near the end of his speech Lord Wilberforce repeated that in his opinion “the word ‘damage’ must be read in the sense in which it has come to be used over the years during which section 68 has been applied and interpreted, viz., damage to land”.

Agreeing with Lord Wilberforce, Viscount Dilhorne stated at p 134 G:

“It may well be that the execution of the authorised works has inflicted a loss on the appellants which far exceeds the amount of compensation obtainable by them for injurious affection to their interest in the land on which they conduct their business. If that be so, they will suffer a hardship for which the law as it now stands does not provide a remedy. Extension of the right to compensation is a matter for Parliament and not for judicial decision.”

When Lord Cranworth in Ricket referred to “actual injury to the land itself” and Lord Wilberforce in Argyle Motors referred to “damage to land”, they had in mind also physical interferences with rights used in connection with land. That is confirmed by the adoption of Mr Thesiger’s submission in McCarthy and the fact that examples used by Lord Cranworth included obstruction of light and making land inaccessible.

Walker, like Ricket, involved interference with a right of access. Lord Selborne LC (at p 276) considered it established 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”. Lord Blackburn (at p 293) stated that the statute is “confined to giving compensation for an injury to land or an interest in land” and held (at p 299) that “the right of access by a public way to land is a right attached to the land and that if an obstruction to the public right of way occasions particular damage to the owner or occupier of that land by diminishing its value, the action which he might bring for that particular damage would be an action for an injury in respect of the land”. He added that “an obstruction to a highway may be so distant from land that no one could reasonably find that the lands were appreciably damaged by the obstruction (p 299) but confirmed (at p 302) that “the deterioration of land from the obstruction of a public way is an action for an infringement of a right attached to the land”.

Reference should also be made to Beckett v Midland Railway Co (1868) LR 3 CP 82 where Ricket was considered and which was approved in McCarthy (per Lord Chelmsford and Lord Hatherley) and cited with approval in Walker. A railway company erected an embankment on a part of the highway opposite the plaintiff’s house, thereby narrowing the road from 50 to 33 ft and materially diminishing the value of the house. Ricket was distinguished and it was held that this was such a permanent injury to the estate of the plaintiff in the premises as to entitle him to compensation under the Lands Clauses Consolidation Act and the Railways Clauses Consolidation Act 1845.

Willes J stated, at p 103:

“The apparent character of the works done seems to me to furnish another and a conclusive reason for holding that here was a sufficient cause of action and sufficient damage. The road has been permanently narrowed. We are not to imagine the possibility of the railway being abandoned and the road restored to its original state. Indeed, by the mere fact of the embankment being made on it, the road is pro tanto destroyed by Act of Parliament. We must therefore assume that the obstruction complained of will continue until the end of time.”

Willes J stressed that the interference was permanent and distinguished the case from others where the obstruction was temporary only.

Considering Caledonian Railway Company v Ogilvy (2 Macq. 229), Willes J stated, at p 104, that “there was no permanent taking away of the road but a mere occasional obstruction on the passing of a train, to the temporary inconvenience of those who wished to use the road. The noble Lords there held that the estate was not damaged; or, at all events, the injury to the estate, if any, formed no element in the judgment of the House. Here, the jury, upon evidence which was properly presented to them, and warranted their conclusion, have found that the plaintiff’s estate in the house was actually damaged”

Bovill CJ (at p 92) also distinguished Ricket’s case on the ground that the injury in Beckett “is permanent and the plaintiff’s premises are found by the jury to be diminished in value quite irrespective of the particular person and of the trade carried on. It is not necessary that the claimant’s house should be actually touched or interfered with to entitle him to claim compensation under the Acts: a substantial interference with the enjoyment of light and air affords a ground of action or of claim for compensation.”

Keating J stated (at p 106):

“Agreeing with all that has fallen from my Lord and my 2 learned brothers, the practical ground upon which I rest my judgment is that the present case ranges itself within Chamberlain’s case ((1862) 2 B&S 605) and not within Ricket’s case because the highway has been permanently interfered with so as in the opinion of the jury to have diminished the value of the plaintiff’s property.”

Lord O’Hagan in McCarthy (p 268) also considered the differences between Ricket and Chamberlain: “The distinction is perfectly plain that the injury in the one case was temporary and personal, and in the other case permanent and to the premises”. In Chamberlain ((1863) 2 B&S 617 at p 637), Erle CJ, in the Exchequer Chamber, affirming the judgment in the Court below had stated:

“Moore v The Great Southern and Western Railway Company (10 ICLR 46) is in principle very closely allied to the present, for there the Company did not take any part of the plaintiff’s land, but, in order to lower the road, made a deep cutting along the boundary of the land, so that he was deprived of the easy access to his house and premises which he before enjoyed; and it was held that this was a permanent injury for which he was entitled to compensation. Here the Railway Company have substituted a new highway for the old one; the old highway is blocked up and the plaintiff’s houses are as inaccessible as was the plaintiff’s house in Moore.”

I have referred to the analysis in Walker, and in Chamberlain and Beckett to demonstrate the scope of section 10 as I understand it to be. It is concerned, in cases where land is not acquired from the claimant, with compensation for works interfering with an owner’s rights in or in connection with the land. The measure of compensation is the diminution in the value of the land caused by that interference. I anticipate Question 3 by adding that it is concerned with a comparison between the value of land before and after the works.

Interferences with rights of access feature prominently in the cases. There may also be compensation where land has been purchased subject to a restrictive covenant protecting the claimant’s land or where there has been an interference with, for example, a right of support or a right of light. That being so, I consider that the parties’ expression “direct physical interference”, in Question 1, fails to identify the real point of difference between them, which does not depend on the directness of the interference. It fails to appreciate the nature of the rights for breach of which section 10 may provide compensation.

The claims made under headings 2, 3 and 4 are capable of forming the basis of a section 10 claim because they each allege obstruction of access to and from the hotel, a right used in connection with the land. The hoardings are alleged to have “effectively prohibited or restricted access”. As heads of claim, they are not in issue, though whether the particular obstructions give rise to compensation may be in issue as in Ricket and Beckett. What the appellants in this case are truly seeking, under Question 1, as emerged in the course of Mr Harper’s submissions, is a finding that disturbance caused by “noise, dust and vibration” (heading 1), inevitably resulting from the works, can form the basis of a claim in the absence of their causing physical damage to the land. To illustrate his point, Mr Harper referred to the law of nuisance and the three kinds of nuisance (Clerk & Lindsell on Torts 17th Edn paragraph 18-05), first, encroachments, second, nuisances causing physical damage and third, nuisances causing an interference with the enjoyment of land. In St Helen’s Smelting Co v Tipping (1865) 11 HLC 642 Lord Westbury LC stated, at p 650:

“It is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produced material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort”.

Mr Harper’s aim is to establish that the third kind of nuisance as so defined and provided it affects the value of the land, is compensatable under section 10. There is an overlap between this submission and Question 3 because the submission does contemplate, if not require, that devaluation during the works is compensatable. The disturbance of use by way of personal discomfort during the works is unlikely to be significantly reflected in the value of the land upon completion of the works. What is sought is compensation for devaluation during the works, by noise, dust and vibration. It is also claimed that obstruction to access during the works, if reflected in the value of the land during the works, is compensatable.

It may be interposed that it is common ground that, especially in the case of commercial premises such as hotels, a valuation at the conclusion of the works may well be lower than at the commencement because of the disruption of trade caused by the works and the need to recover trade over a period after the works are complete. That diminution is accepted as being compensatable under section 10. Further, vibration, and even dust, may cause damage to land and premises leading to a lower value when works are complete. That too is compensatable but is different from the damage through disturbance which Mr Harper seeks to bring within section 10.

Mr Harper relies upon the decision of the Court of Appeal in Lingké v Mayor of Christchurch [1912] 3 KB 595 and of Parker J in Leonidis v Thames Water Authority [1979] 2 EGLR 8 decided under the Public Health Acts, the first of them under section 308 of the 1875 Act and the second under its successor section 278(1) of the 1936 Act. Section 308 provided that “where any person sustains any damage by reason of the exercise of any of the powers of this Act ... full compensation shall be made to such person by the local authority exercising such powers”. Section 278(1) provides that “a local authority shall make full compensation to any person who has sustained damage by reason of the exercise by the authority of any of their powers under this Act ... .”. Business losses caused by interference with access during the works were successfully claimed.

The first issue in Lingké was whether a cause of action arose. The principle was expressed that a “plaintiff succeeds if it can be shown that the act, if it had not been rendered lawful by statutory powers, would have been to her an actionable wrong” (Fletcher Moulton LJ at p 610). The principle was affirmed by Parker J in Leonidis: “if a private individual had done what the defendants did in the present case the claimant would have had a good cause of action ... .”.

These cases affirm the principle in Ricket that “unless the particular injury would have been actionable before the company had acquired their statutory powers it is not an injury for which compensation can be claimed” (per Lord Chelmsford at p 187). That principle is not is issue in the present case. The second issue in Lingké, whether the plaintiff sustained particular damage to enable him to sue in respect of a public nuisance, is also not in issue in the present case.

The cases do not support the proposition that compensation is payable for disturbance under section 10 because compensation in those cases was not dependant on proving damage to the value of land. The sections in the Public Health Acts provide that compensation shall be paid to a “person” who has sustained damage and do not support a reconciliation between damage to land and disturbance to users creating a business loss even if that is accompanied by a temporary loss of value to land. Parker J (at p 10) acknowledged the distinction between the Public Health Acts and “sections which do limit compensation to injury to land”. It will be necessary to refer to Lingké again on Question 3.

As posed, Question 2 does not arise upon the answer I propose to give to Questions 1 and 3 but I set out the basis of the appellants’ case. It assumes a right of action in the claimant. The appellants’ proposition is that once such a right of action exists, damages are recoverable for all the detrimental consequences of the works including those which would not themselves have founded an action. It is also submitted, and I regard it as a separate submission, that the principle is that no cause of action arises in respect of operations, such as demolition of buildings, if they are reasonably carried out and all reasonable and proper steps are taken to ensure that no undue inconvenience is caused to neighbours, does not apply to major public works such as those in the present case.

Mr Harper relies essentially upon the Court of Appeal decision in Re London, Tilbury and Southend Rly Co and Trustees of Gower’s Walk Schools (1889) 24 QBD 326 where compensation was awarded for diminution of value following an infringement of a right to light. The claimants who owned buildings with ancient lights pulled them down and erected a new building in their place. While the position of some of the windows of the new building coincided with that of windows on the old, other windows on the new building occupied wholly different positions. A railway company, in the exercise of their powers, erected a warehouse which obstructed the lights of windows in the new building. The claim was brought under section 16 of the Railways Clauses Act 1845 but the difference in wording between that and the Land Clauses Act 1845 (requiring the railway company to “make full satisfaction ... to all parties interested, for all damage by them sustained”) does not appear to have been considered relevant.

I can see no application in the present case for anything decided in Tilbury. I consider Tilbury to be decided on the narrower ground first considered by Lord Esher MR (at p 329):

“If ... a person puts up buildings, the inevitable consequence of their erection being to obstruct ancient and modern lights, should he not be taken to have foreseen that in obstructing the one he would obstruct the other? If that were proved in a common law action the plaintiff would be entitled to damages for the whole of the consequences of the wrongful act of obstructing ancient lights, which would include damage to the new as much as to the old lights. If so, it seems to me obvious that compensation must be given under the statute to the same extent.”

Lindley LJ stated at p 332:

“They [the railway company] have infringed the rights of the trustees by darkening certain ancient windows, and as a consequence of that they have diminished the value by an amount found by the arbitrator to the £1,450. That is the necessary consequence of their wrongful act. On what principle are the railway company not to pay for that diminution in value? The railway company say they might have blocked up all the modern windows; but to this the trustees may reply, that more than this has been done, that their rights have been infringed, and that, though no action will lie because the infringement is authorised by an Act of Parliament, their case falls within the 16th section of the Railways Clauses Act, and that the consequence is that full compensation must be made, which full compensation is the difference between the value of the land as it was and as it is at present.”

Lopes LJ stated at p 332:

“Having regard to the position of the windows of the school buildings, it is physically impossible to obstruct the light to the new, without at the same time obstructing the light to the ancient windows.”

General statements in Tilbury, which might suggest that damages irrecoverable at common law could be claimed as compensation, must be read in the context that the devaluation of the building was caused by the loss of light whatever the precise position of the windows. Having regard to the issues in the present case, the principle that once the infringement of a relevant right is established the damage is the diminution of value resulting from that infringement does not assist the appellants. If Mr Harper is correct in his approach to Question 1, the appellants must nevertheless establish loss resulting from that which, if done without statutory authority, would give rise to a cause of action. I see no justification for a departure from ordinary principles of causation whether by disapplying the principle in Andreae v Selfridge or in any other way. I accept the submission of Mr Mole QC that section 68 does not allow a wider measure of compensation than that allowable in an action for tort.

I turn to Question 3. In my judgment, there can be no doubt that section 10 of the 1965 Act is concerned with the value of land or damage to land. On its face, that principle would appear to require a comparison of the value of the land before and after the works. It may however be said that, for some purposes, the phrase “the value of the land” may include both the market value of the land and compensation for disturbance. Thus, in Hughes v Doncaster MBC [1991] 1 AC 382 it was held that the phrase “the value of the land” in section 5 of the Land Compensation Act 1961 included both the market value and compensation for disturbance. Lord Wilberforce, with whose speech the other members of the House of Lords agreed, stated, at p 392 G,:

“Thus, although compensation in respect of the market value of land acquired and compensation for disturbance must in practice be separately assessed, the courts have consistently adhered to the principle, both before and after the present rules were first introduced by the Act of 1919, that the two elements are inseparable parts of a single whole in that together they make up “the value of the land” to the owner, which, unless he retains other land depreciated by severance or injurious affection, was the only compensation which the 1845 code awarded to him.”

That principle does not assist the present appellants (and they did not seek expressly to place reliance on it). Lord Bridge recognised that section 7 of the 1965 Act involved a different approach to heads of compensation and so, a fortiori , does section 10.

The difficulty of bringing their alleged loss and damage within section 10 emerges from the way in which the appellants have formulated their claim. They recognise that the damage must be to the value of the land. It is expressed as a series of capital sums said to result to result from obstruction of access. On enquiry, however, it was found to be based on an alleged loss of rental value, itself based on loss of profits over the period of the works. I find it impossible to fit that approach with the application of section 10 in the authorities.

The appellants rely upon Ford. The plaintiffs had a short lease of three rooms. The railway company took away part of the house including the hall, through which the plaintiffs had an exit to the street. There was evidence that interference with the building did materially affect the value of the rooms on which the plaintiffs had a lease. The plaintiffs’ right of going through a passage was interfered with. Compensation of £600 was awarded and this award was upheld in the Court of Appeal.

Counsel acknowledge the difficulty of assessing the effect of the decision, as reported. The point was taken by the railway company that the arbitrator had awarded compensation for some items upon which he had no jurisdiction to award it: “mere personal inconvenience or mere injury to the business of the person claiming”. Under the then existing law, an award was invalid if any part of the compensation was beyond his jurisdiction. It was held that the arbitrator was not influenced by matters beyond the scope of his jurisdiction. Bowen LJ stated at p 29 that “the sum he has awarded is amply explained by the existence of the substantial matter of compensation which the plaintiffs are entitled to claim”. What is not clear from the report is whether the loss of access was permanent and therefore caused permanent loss of value and, if so, whether the compensation was for that permanent loss.

What is clear from the report is, first, that it was submitted that temporary damage could not be the subject of compensation (p 18). It is also clear that adverse comment was made upon any distinction between injury existing during the works and injury which remained when the work was finished. Lord Esher MR stated, at p 20,:

“The chief point argued is this: it was urged that we were bound by authority to hold that if the arbitrator awards any compensation upon such a claim as this for injury, when it is injury only existing during the continuance of the work, and does not confine himself to injury which remains when the work is finished, the award is bad. That has always struck me as an exceedingly strange proposition — that compensation may be given for the injury which exists at the time when the work is finished, and yet that no compensation is to be allowed for the very same injury which exists during the progress of the works. That has always seemed to me to be a very fine distinction, which I could not understand; and when we look into the authorities, we find that it is based on an expression of Lord Chelmsford. I cannot help thinking that that expression, which has been cited from Ricket v Metropolitan Ry Co , decided in the House of Lords, and has been relied upon as an opinion of Lord Chelmsford, is open to the explanation that it is a defective expression; he did not intend to say that which no doubt his words, prima facie , seem to imply. But be that as it may, that expression of his, as has been pointed out, was not adopted by Lord Cranworth in the very same case, and certainly has been spoken of, to say the least, with doubt by Lord Selborne in Caledonian Ry Co v Walker’s Trustees . I cannot, therefore, take that expression of Lord Chelmsford’s as a binding authority upon this Court, as a decision of the House of Lords. If that be so, we are driven back to principle. As I have said, I cannot believe that a fine-drawn distinction which seems to me unreasonable can be the law, and therefore I cannot think that the mere fact that the arbitrator has given some compensation for injury done before the works were completed, invalidates the award.”

Lord Chelmsford in Ricket at p 189 had said of section 68 of the Lands Clauses Act 1845 and of section 6 of the Railways Clauses Act 1845 that they appeared to him to apply not to temporary but to permanent works of companies, whereas section 16 of the latter Act related to the damage occurring during the execution of the works.

Cotton LJ also refers to, and cites, Lord Selborne’s comment upon the statement of Lord Chelmsford. He concludes that Lord Chelmsford’s statement should not be relied upon because it was not the ground of decision in Ricket. Cotton LJ continued, at p 24,:

“In my opinion it would be wrong, and to take a very narrow view of this Act, to say that compensation for injury caused by the exercise of the powers vested in the company is to be confined to injury caused by the works when constructed. In my opinion the right to compensation ought to include also injury caused to the house, not only by the works when finished, but by exercise of the powers of the Act in the course of putting up those works. ... Therefore in my opinion — and the Master of the Rolls has already expressed his opinion generally to the same effect — if injury is caused to the value of the building by that which is done while the works are being constructed, the owner or occupier or person having an interest is entitled to compensation in respect of his land and his interest in the land which are injuriously affected.”

It is not entirely clear whether Cotton LJ had in mind damage during the works having a permanent effect or such damage having only a temporary effect on value. If the above statement may suggest the latter, the analysis by him at p 22 does not:

“The railway company took away part of the house; they took away, as I understand, all the front block, and took away the hall, through which the plaintiff had an exit to the street, and there was evidence that that interference with the building did materially affect the value of the rooms of which the plaintiffs had a lease.”

Moreover, there seems to me to have been, with the greatest respect, a misunderstanding of Lord Selborne’s comments in Walker, cited by Cotton LJ, upon Lord Chelmsford’s statement in Ricket. Lord Selborne stated at p 283:

“Much of Lord Chelmsford’s reasoning was founded upon a distinction between temporary and permanent damage under the 68th section of the Lands Clauses Act, and 6th and 16th sections of the Railways Clauses Act in which Lord Cranworth did not concur; and it certainly does not appear to me that the decision of Ricket’s case, either in this House or the Exchequer Chamber, can satisfactorily be explained by any such distinction. But both these noble and learned Lords agreed that the damage by loss of custom, of which the plaintiff complained, was a consequence of the works of the railway company, too remote and indefinite to bring it within the scope of any of the compensation clauses of the Acts; and this I consider to have been the true ground of that decision.”

It can readily be agreed that Ricket (cf Chamberlain) was decided on the ground of remoteness. It does not follow that the distinction made in Ricket, and other cases, between permanent and temporary loss, is invalid. The two issues are separate and I do not read Lord Selborne as advocating that temporary loss of value comes within section 68. The damage for which an award was made in Walker was a permanent damage (Lord Blackburn at pp 291 and 292). Moreover Lord Selborne spoke with approval of Beckett where the permanence of the damage was a feature. All that Lord Selborne was doing, in my view, was to explain why a different result was reached by the House in Ricket and rightly concluding that it was on the ground of remoteness.

Bowen LJ referred to the proposition of Mr Thesiger approved in Walker and stated, at p 27, : “We are driven therefore to consider what is the right, if any, in the present case which has been interfered with, and whether it has been interfered with so as to affect the selling value of the property as property within the definition to which I have alluded”. Bowen LJ considered the right of the plaintiffs and stated (at p 28) that it “was therefore a private right which the occupiers of those rooms were by law entitled to make use of in connection with their property, and I think there can be no question that the right gave an additional market value to the property”. Bowen LJ continued:

“Has that right been interfered with according to the definition laid down in Metropolitan Board of Works v McCarthy? It is urged that the injury which was caused to the house by the taking away of the enjoyment of this hall, was an injury caused only during the progress of the works, and therefore was not such an injury as was intended to be compensated by section 6 of the Railways Clauses Act, which provides for compensation being given for an injury done to land by the construction of a railway. But the question seems to me rather to be what is the character of the injury inflicted, than what is the period during which it occurs. I cannot help thinking that on the plain reading of the Act of Parliament an injury may be done to houses and land, (if it is an injury sufficient to lessen the value of the property,) quite as fully during the progress of the works, as by the works after they have been constructed ... Compensation, therefore, was rightly claimed by the plaintiffs in this case in respect of the alteration of the hall which formed the access to the demised premises.”

In the absence of a reported finding as to whether the diminished right of access was temporary or permanent, and in the presence of statements by Cotton LJ and Bowen LJ which could apply to damage during the works having a permanent effect, I find it difficult to assess the principle in Ford and its effects. The main object of the Court, it seems to me, was to decline to invalidate the arbitrator’s award on the ground that it included heads of damage beyond his jurisdiction. Bowen LJ concluded by stating:

“I have come to the conclusion that he did not do so, that the sum he has awarded is amply explained by the existence of the substantial matter of compensation which the plaintiffs are entitled to claim, and that, therefore, the award ought not to be disturbed.”

Concentrating, as it did, on that question, the Court did not authoritatively define what the award was for or by what process any compensation for injury during the works related to or formed a part of the sum awarded.

It appears to me from the statement of Bowen LJ just cited that the “substantial matter of compensation” he had in mind was a permanent loss of value. Notwithstanding his adverse comments upon a distinction between injury during the works and injury when the works are finished, the analysis by Cotton LJ of the injury suffered is in terms entirely consistent with the approach in the earlier cases I have cited.

In the result, I am not able to conclude that the majority of the Court established a principle that compensation was payable under section 68 for temporary disturbance of rights over or in connection with land. The basis of the decision is too uncertain to establish any such principle and it would in any event be contrary to the principles established in earlier cases of high authority . It has to be recognised that, in Lingké, Fletcher Moulton LJ stated at p 607:

“It is quite true that in the long line of decisions (not consistent with one another in all cases) there was a time when it was thought that there was a fundamental difference between damage caused by temporary interference with property to the user of it and permanent interference. But since the case of Ford v Metropolitan and Metropolitan District Railways Companies , which was decided in this Court in 1886, it has been settled law that the fact that an interference is only temporary and that it takes place during the construction of the works is not fatal to the right to compensation. Where the interference would give ground for compensation if perpetual, then if it is temporary, but not for a negligible time, it will also give ground for compensation.”

That statement was obiter because the Court was dealing with the Public Health Act 1875 where, as already stated, different considerations apply. As a comment on the then current view, the statement of Fletcher Moulton LJ is of course entitled to great respect. Upon analysis, however, I find myself driven to the conclusion that Ford does not undermine the earlier authorities to which I have referred. We have not been referred to any case under section 10 in which the “temporary loss of rental value” basis put forward in this case has been approved.

Compensation under section 68, and now under section 10 of the 1965 Act, is based upon a permanent devaluation of or damage to the land and no further sum is payable with respect to temporary devaluation during the works on the basis argued in this case. If I am wrong about that, I would in any event hold that compensation is not payable under section 10 for disturbance during the works by noise, dust and vibration not affecting the value of the land when the works are complete, as distinct from temporary physical interference with the land or a right used in connection with the land.

Since writing this judgment, I have had the opportunity to see in draft the judgment of Ward LJ. The answer which Ward LJ gives to question 1 follows from his conclusion as to the effect of the decision of the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655. It is a view which was not expressed on behalf of the appellants at the hearing and, before concluding this judgment, I should wish to refer to it.

The relevant principle in Hunter is that only a person with an interest in land can sue in private nuisance. Counsel arguing the contrary case in Hunter (p 679D) relied on St Helen’s Smelting Co v Tipping . He submitted that, in St Helen’s , enjoyment of property by substantial occupation (short of an interest in the land) had been recognised as a distinct form of nuisance and that no material distinction was to be drawn in nuisance between owner and non-owner occupation. It was in order to refute that argument that Lord Hoffmann held (p 707) that the third category of nuisance in St Helen’s , that is nuisances causing an interference with the enjoyment of land, “do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land”. St Helen’s had not “divided nuisance into two torts”. Lord Hoffmann stated that once that was understood, the rule that the plaintiff must have an interest in the land falls into place as logical, and indeed inevitable. The purpose and effect of the decision of the House in Hunter on this point was to limit the category of persons who can sue in private nuisance.

Lord Hoffmann was not expressly construing section 68 of the 1845 Act and the authorities under it and I do not understand his reasoning to have that effect or to bear upon the law there expressed. St Helen’s is not cited in any of the cases cited in the speeches in Argyle or in the other cases upon which I have relied in considering question 1 (and injurious affection cases were not cited in St Helen’s ). There is nothing in those cases which suggests that the law of injurious affection under section 68, and now section 10 of the 1965 Act, was being treated as part of or a branch of the law of nuisance. There is nothing to suggest that the law of injurious affection was so influenced by the categorisation of nuisance in St Helen’s (Lord Westbury LC at p 650) that Lord Hoffmann’s reaffirmation that St Helen’s did not divide nuisance into two torts could have the effect of equating a section 10 claim with a claim in private nuisance.

While the conclusion of Ward LJ demonstrates a way in which the law of injurious affection under section 68 might have developed (a way which may well have been beneficient), it does not in my respectful view accord with the way it did in fact develop. I have already cited Lord Wilberforce’s rejection in Argyle (at p 130G) of the notion of introducing a more generous policy of compensation under section 10 by judicial decision.

I would dismiss the appeal and allow the cross-appeal.

Lord Justice Ward: I am consoled by the fact the problems acutely presented to me in this case by Section 68 of the Lands Clauses Consolidation Act 1845 have never been easy of resolution. In 1867 in Ricket -v- The Directors, etc., of The Metropolitan Railway Company [1867] L.R. 2 H.L. 175 it appeared to the Lord Chancellor (Lord Chelmsford):-

"to be a hopeless task to attempt to reconcile the cases upon the subject."

Lord Wilberforce more than a century later observed in Argyle Motors (Birkenhead Ltd. -v- Birkenhead Corporation [1975] A.C. 99, 129A and 129F:-

"The relevant section of the Act of 1845 (Section 68) has, over a hundred years, received through a number of decisions, some in this House, and by no means easy to reconcile, an interpretation which fixes upon it a meaning having little perceptible relation to the words used. This represents a century of judicial effort to keep the primitive wording - which itself has an earlier history - in some sort of accord with the realities of the industrial age...It is not disputed that, in spite of its apparent form, this subsection is, by force of judicial interpretation, a compensation section and not merely procedural, i.e., it authorises the payment of compensation “in respect of any lands, or any interest therein, which shall have been...injuriously affected by the execution of the works, ..."

The questions which arise in this appeal are whether compensation is payable under Section 10 of the Compulsory Purchase Act, 1965 which itself applies Section 68 of the 1845 Act in respect of the claims which are brought under four heads:-

1. Nuisance by noise, dust and vibration, said to be “physical interferences” to the claimants’ rights to be protected in their enjoyment of the premises directly affected by the nuisance.

2. Nuisance by the erection of hoardings obscuring the hotel and effectively preventing or restricting the claimants’ rights of access to and from the highway.

3. Nuisance by obstruction of the hotel’s rights of access to and from the adjoining public highway.

4. Nuisance by obstruction of the use of the public highway thereby obstructing access to the premises.

I agree with Pill L.J. that the claims brought under headings 2, 3 and 4 above, being claims of interference with rights of access, are capable of forming the basis of a claim under Section 10 (though whether in fact they do or not is a matter for the Lands Tribunal.) I also agree with him that the real and important issues are:-

1. Whether the claim under the first heading for compensation for nuisance by noise, dust and vibration is sustainable if no physical damage is caused to the land itself; and,

2. Whether a claim lies if the loss in the value of the land is of temporary duration lasting only whilst the property is affected by the actual execution of the works and without the property having suffered any permanent ill-effect by the time of the completion of the work.

Support for the respondent’s submissions are principally derived from the speech of Lord Cranworth in Ricket and from the speech of Lord Chelmsford in The Chairman, etc., of the Metropolitan Board of Works -v- McCarthy [1874] L.R. 7 H. L. 243. Lord Cranworth said at p. 198:-

"The injury must be actual injury to the land, as by loosening the foundations of the 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."

Lord Chelmsford said at p. 253:-

"Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of in connection with such property...there is a title to compensation if by reason of such interference, the property, as a property, is lessened in value."

I do not accept those dicta justify or were intended to lay down a rule so narrow and circumscribed as the respondent submits. My reasons for that view are the following.

1. Although Ricket may really have been decided on remoteness, I accept what Lord Wilberforce said about the case namely that:-

"The pronouncements by eminent members of this House are in such explicit terms that a clear conviction of their error or, possibly, the most powerful considerations of policy would need to be present before so strong a current of authority could be turned back."

The ratio of that case (when not viewed in terms of remoteness) is, as I analyse it, no more than that the damage must be damage to the land itself. In the sentence immediately preceding the passage I have quoted above, Lord Cranworth had said:-

"Both principle and authority seem to me to show that no case comes within the purview of the statute, unless where some damage has been occasioned to the land itself, in respect of which, but for the statute, the complaining party might have maintained an action."

That is the general principle. He then went on to give examples of actual injury to the land but his use of the phrase “as by...” is an indication, to my mind, that he is not giving an exhaustive list of examples. There is no suggestion that other examples of “actual injury” to the land itself would be excluded from compensation. He was not, in my judgment, circumscribing the ambit of the section of the Act with which the court was concerned which was in similar terms to Section 68.

There is no hint in the speech of Lord Chelmsford L.C. that he was limiting the application of the section. As he later explained in McCarthy, he was taking “some pains to distinguish” the case where the premises themselves had been injuriously affected and Ricket’s case where:-

"the jury found that there was no damage done to the structure of the house, i.e., to the premises; and the question in the special case for the opinion of the court was, whether the loss of customers by the plaintiff in his trade was such damage as to entitle him to recover from the company?"

Lord Westbury dissented and one has to note that Lord Blackburn in Caledonian Railway Company -v- Walker’s Trustees observed that Lord Cranworth’s reasoning was not accepted by the other members of the House and that he (Lord Blackburn) would not have been prepared to follow that particular dictum.

2. The next case in the Victorian trilogy is McCarthy. The Lord Chancellor, Lord Cairns, embraced the test stated by counsel, Mr Thesiger that the construction of the works should be such character that:-

"there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of in connection with the property...if, by reason of such interference, the property, as a property is lessened in value."

I make these observations about the definition:-

(i) The title to compensation depends on the property as a property being lessened in value. This restates the point I have made that the essence of the claim is damage to property lessening its value as such.

(ii) The Lord Chancellor said of the Thesiger definition:-

"I should not be disposed to find fault with any part of that definition..."

An essential part of the definition to which he was thus giving his approval must also have been the meaning which counsel himself was giving to the words he was using even though counsel’s explanation was not being repeated in the speech. Counsel is reported at p. 249 to have said this:-

"The word “physical” is here used in order to distinguish the case from cases of that class where the interference is not of a physical, but rather of a mental, nature, or of an inferential kind, such as those of a road rendered less agreeable or convenient, or a view interfered with, or the profits of a trade, by the creation of new highway or street, diminished in the old one."

The definition cannot be properly applied without using it in the context it was intended to have.

(iii) Moreover, this distinction between physical and personal is expressly made by Lord Chelmsford. He said at p. 256:-

"After the many irreconcilable decisions upon the compensation clauses in the Lands Clauses Consolidation Act, and the Railways Clauses Consolidation Act, I think we may now be said to arrived at some settled conclusions on the subject. It may be taken to have been finally decided that in order to found a claim to compensation under the Acts there must be an injury and damage to the house or the land itself in which the person claiming composition has an interest. A mere personal obstruction or inconvenience, or a damage occasioned to a man’s trade or the goodwill of his business, although of such a nature that but for the Act of Parliament it might have been the subject of an action for damages, it will not entitle the injured party to compensation under it.” (My emphasis is added.)

(iv) Lord Penzance first stated the general rule, then made the qualification. The general rule is (p. 262):-

"It may reasonably be inferred that the Legislature, in authorising the works, and thus taking away rights of action which the owner of the land would have 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 this statute 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 improved the position of the person injured by the passing of the Act."

Then he added the qualification-

"There is another rule, which is, I conceive, well settled in these cases, namely, that the damage or injury, which is to be the subject of compensation, must not be of a personal character, but must be a damage or injury to the “land” of the claimant considered independently of any particular trade that the claimant may have carried on upon it."

I emphasis that his qualification is not that there should be physical damage but that there should be damage to the land as opposed to damages of a personal character.

(v) The general rule is part of the ratio of the case. The Lord Chancellor said at p. 252:-

"...I propose entirely to accept the test which has been applied both in this House and elsewhere, as to the proper meaning of those words (“injuriously affected”) as giving a right of compensation, namely, that the proper test is to decide whether the act done in carrying out the works in question is an act which would have given a right of action if the works had not been authorised by Act of Parliament."

Lord Hatherley at p. 260 said:-

"But I believe the rule to be a sound one, that wherever an action might have been brought for damages if no Act of Parliament had been passed, the case is brought within the class of cases in which the property is “injuriously affected” within the meaning of the Act."

Lord O’Hagan said at p.265:-

"The policy of that Act I apprehend to have been to prevent private caprice or selfishness from interfering with the prosecution of works designed for the public benefit; but to do this with strict regard to individual rights by securing ample compensation in every case in which individual sacrifice or inconvenience is found to be essential to the general good. It never contemplated that the community should profit at the expense of a few of its members, and as a condition of redress, it required only proof by the owner of injury to his property.”

3. The third case is Caledonian Railway Company -v- Walker’s Trustees. Lord Selborne, L.C. said at p.275/276:-

"The propositions which I regard as having been established by (earlier decisions of the House)...being these:-

1. Where a right of action which would have existed if the work in respect of which compensation is claimed had not been authorised by Parliament, would have been merely personal , without reference to land or its incidents, compensation is not due under the Act.

2. Where damage arises not out of the execution, but only out of the subsequent use of the work, then also there is no case for compensation.

3. Loss of trade or custom by reason of a work not otherwise directly affecting the house or land in or upon which a trade has been carried on, or any right properly incident thereto, is not by itself a proper subject for compensation.

4. 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.” (My emphasis has been added)

Lord O’Hagan said at p.288:-

"I have never been able to understand the reason why premises should not be held to be “injuriously affected” if they are injured under such circumstances by the construction of a railway as to be diminished in usefulness and lowered in value, or why, if there be real and appreciable injury, there should not be adequate compensation."

Lord Blackburn said at p.293:-

"And it must, I think, also be now considered as settled that the construction of those statutes is confined to giving compensation for an injury to land or an interest in land; that it is not enough to show that an action would have lain for what was done if unauthorised, but it must also be shown that it would have lain in respect of an injury to the land or an interest in land. "

Again it is pertinent to point out that the qualification to the general rule (there must have been a cause of action but for the statutory authorisation) is only the qualification that there must be injury to the land. There is no suggestion that there must be physical injury to the land.

4. Finally there is Argyle Motors (Birkenhead) Ltd. -v- Birkenhead Corporation. That case establishes that:-

"...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. (p.129G.)

As a matter of language, though language is an uncertain guide in this statute, it must be said that the words I have quoted “in respect of any lands, ...” support the exclusion of claims for personal loss. (p.130f.)

...if the right to compensation in the present case depends upon section 68 the appellants cannot succeed in obtaining compensation for business losses as such. I make it clear, as did the Court of Appeal, that if they can prove that a loss of profitability affects the value of their interest in the land they can recover compensation for this loss of value." (p.130H).

The criterion laid down by Lord Wilberforce to entitle compensation is “some loss of value of land” or “ some damage to lands”. He does not require that the damage be physical damage. He accepts that if a loss of profitability affects the value of the land, compensation is payable for that loss of value.

The real question posed in this case is whether or not the claim for compensation for nuisance by noise, dust and vibration is an injurious affection of the land of the kind which the speech of Lord Wilberforce would embrace. At the heart of the issue lies the question whether or not a cause of action for that kind of nuisance is one the essence of which is the causing of some loss of value of land or some damage to land or to an interest in the land.

In my judgment those questions are answered affirmatively by Hunter -v- Canary Wharf Ltd [1997] A.C. 617. The speech of Lord Cooke of Thorndon citing the judgment of Sayre J. in Hosmer -v- Republic Iron & Steel Co. (1913) 60 South 801 enables me to quote Blackstone’s definition of nuisance as “anything done to the hurt or annoyance of the lands...of another” (Commentaries, 4th ed. (1876), Vol. III, ch XIII, p.190). For Lord Goff of Chieveley at p.687G - 688C:-

"The basic position is, in my opinion, most clearly expressed in Professor Newark’s classic article on “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480 when he stated, at p. 482, that the essence of nuisance was that “it was a tort to land. Or to be more accurate, it was a tort directed against the plaintiff’s enjoyment of rights over land...”...Later, when distinguishing cases of personal injury, he stated, at pp. 488 - 489:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”"

For Lord Lloyd of Berwick at pp. 695C and 696A:-

"Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.

...

It has been said that an actionable nuisance is incapable of exact definition. But the essence of private nuisance is easy enough to identify, and it is the same in all three classes of private nuisance, namely, interference with land or the enjoyment of land. In the case of nuisances within classes (1) or (2) the measure of damages is as I have said the diminution in the value of the land. Exactly the same should be true of nuisances within class (3). There is no difference of principle....Damages for loss of amenity value cannot be assessed mathematically. But this does mean that such damages cannot be awarded: see Ruxley Electronics and Construction Ltd -v- Forsyth [1996] AC 344 per Lord Mustill, at pp. 360 - 361, and per Lord Lloyd of Berwick at p. 374."

For Lord Hope of Craighead at p. 724

"So where it is the tort of nuisance which is being relied upon to provide the remedy - and I believe the same rule should apply whether the remedy sought is that of an injunction or in damages - the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. ...The effect on that interest in land will also provide the measure of his damages, if reimbursement for the effects of the nuisance is what is being claimed, irrespective of whether the nuisance was by encroachment, direct physical injury or interference with the quiet enjoyment of the land. The cost of repairs or other remedial work is of course recoverable if the plaintiff has required to incur that expenditure. Diminution in the value of the plaintiffs’ interest, whether as owner or occupier, because the capital or letting value of the land has been affected is another relevant head of damages. When the nuisance has resulted only in loss of amenity, the measure of damages must in principle be the same."

For my part the speech of Lord Hoffmann brings symmetry to the law and removes the uncertainties which have blighted a consistent approach to the meaning of the language of Section 68 of the 1845 Act. Lord Hoffmann explains at p. 702H:-

"Nuisance is a tort against land, including interests in land such as easements and profits."

That, therefore, is common ground in the four speeches. It is, however, from his critical analysis of Khorasandjian -v- Bush [1993] QB 727 that I draw my crumbs of comfort for my dissenting from the strong views taken by my Lords Pill L.J. and Peter Gibson L.J. whose judgments I have read in draft. Lord Hoffmann said of Dillon L.J.’s judgment in that case seeking to extend the right of action to others than those who have an interest in the land that his (Dillon L.J.’s) reasoning:-

"is based upon a fundamental mistake about the remedy which the tort of nuisance provides."

It is, I fear, necessary to cite at some length from pp. 705 and 707 of his speech. He said:-

"It (that fundamental mistake) arises, I think, out of a misapplication of an important distinction drawn by Lord Westbury L.C. in St Helen’s Smelting Co -v- Tipping (1865) 11 HL Cas 642. In that case the plaintiff bought a 1,300 acre estate in Lancashire. He complained that his hedges, trees and shrubs were being damaged by pollution from the defendants’ copper-smelting works a mile and a half away. The defendants said that the area was full of factories and chemical works and that if the plaintiff was entitled to complain, industry would be brought to a halt. Lord Westbury said, at pp. 650 - 651:-

“My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, any thing that discomposes or injuriously affects the senses or the nerves whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs....But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply in circumstances the immediate result of which is sensible injury to the value of the property.”

St Helen’s Smelting Co -v- Tipping was a landmark case. It drew the line beyond which rural and landed England did not have to accept external costs imposed upon it by industrial pollution. But there has been, I think, some inclination to treat it as having divided nuisance into two torts, one of causing “material injury to property”, such as flooding or depositing poisonous substances on crops, and the other of causing “sensible personal discomfort” such as excessive noise or smells. In cases in the first category there has never been any doubt that the remedy, whether by way of injunction or damages, is for causing damage to the land. It is plain that in such a case only a person with an interest in the land can sue. But there has been a tendency to regard cases in the second category as actions in respect of the discomfort or even personal injury which the plaintiff has suffered or is likely to suffer. On this view the plaintiff’s interest in the land becomes no more than a qualifying condition or springboard which entitles him to sue for injury to himself. If this were the case the need for the plaintiff to have an interest in land would be hard to justify. The passage I have quoted from Dillon L.J. ( Khorasandjian -v- Bush [1993] QB 727, 734) is an eloquent statement of the reason. But the premise is quite mistaken. In the case of nuisances “productive of sensible personal discomfort,” the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered sensible injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.

...

But inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness.

...

Once it is understood that nuisances “productive of sensible personal discomfort” ( St Helen’s Smelting Co -v- Tipping, 11 HL Cas 642, 650) do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed inevitable."

It is, to my mind, equally logical and indeed inevitable that a claim for compensation for nuisance through noise, dust and vibration should also fall into place along side the right to compensation for nuisance through direct physical injury to the land or for nuisance through an interference with a right of way or a right of access to and from the properties. They are all examples of land or an interest in land being injuriously affected by the execution of authorised work. Once the true nature of the claim made in this case is understood to be in lieu of the tort against land, there can be no reason not to include it as a form of injurious affection of land.

Consequently, and like Lord O’Hagan in McCarthy, I “cheerfully” answer the first question posed by the member of Land Tribunal by saying, “Yes, the Land Tribunal did err in law in deciding that compensation is not payable under Section 10 of the Compulsory Purchase Act 1965 where an interference to some legal right, public or private, is not a direct physical interference to the land or a right appurtenant to land.”

My immediate reaction is why should it not be? The settled purpose of the legislation is to confer a right to compensation co-extensive with the right of action of which the statutes deprived the claimant: see for example, Lord Penzance’s speech in McCarthy cited above. I do not apprehend there to be any doubt about the entitlement to damages where an actionable nuisance causes a temporary interference. To cite Lord Hoffmann in Hunter again, he said at p. 706D dealing with “an action for nuisance caused by smells from a pig farm”:-

"But diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case a transitory nuisance ,” (my emphasis added) “ the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. But estate agents do this all the time. The law of damages is sufficiently flexible to be able to do justice in such a case: compare Ruxley Electronics and Construction Ltd -v- Forsyth [1996] AC 344.

There may of course be cases in which, in addition to damages for injuries to his land the owner or occupier is entitled to recover damages for consequential loss. He will, for example, be entitled to loss of profits which are the result of inability to use the land for the purposes of his business."

I have already referred to the speech of Lord Hope where he refers to the letting value of the land as a relevant head of damages.

So, in my judgment, it should be. Suppose the claimant is the owner of a house the only entrance to which is from the highway on which road works are being carried out with the result that a mound of earth is piled outside his front door making it impossible for him to enter his home for a period of six months in the middle of the five years whilst this work is being carried out. He has to incur the expenditure of finding alternative accommodation. He suffers no further loss. Why, in all justice, should he not have a right to be reimbursed that expenditure? If the purpose of the Act is, and surely it is, that he should be compensated for the loss he would otherwise recover by his action in tort, then I confess I baulk at imposing the restrictions upon his claim for which the respondent to this appeal contends.

What is the basis for that restriction? The respondent relies upon a passage in the speech of Lord O’Hagan in McCarthy where he said at p. 268

"It appears to me that, looking only to Ricket’s case and Chamberlain’s case , the distinction is perfectly plain that the injury in the one case was temporary and personal, and in the other case permanent and to the premises."

This seems to me a scant basis for a proposition which runs counter to Lord O’Hagan’s own statement of the general principle which is also cited above. It did not feature in Mr Thesiger’s definition which was accepted by that court as the appropriate test.

A second reason for this limitation derives from Lord Chelmsford’s analysis in Ricket’s case of the 6th and 16th sections of the Railways Clauses Consolidation Act, 1845 (Section 6 being similar to Section 68 of the Lands Clauses Consolidation Act with which we are concerned.) It led him to say at p. 189:-

"These sections appear to me to apply not to temporary, but to permanent works of companies."

I have pointed out that his speech stood alone. His distinction between temporary and permanent damage was criticised by Lord Selborne L.C. in Caledonian Railway Company -v- Walker at p. 283. When Lord Chelmsford was at pains to explain in McCarthy the reasoning of his opinion in Ricket’s case he (unlike Lord O’Hagan) distinguished Ricket’s case from Chamberlain’s case only on the basis of the absence of damage done to the house in the former case. He made no reference there to the temporary as opposed to the permanent nature of the damage. True it is that on the facts of McCarthy there was permanent damage caused by the destruction of the dock but that is mentioned as a fact of the case, and not as the reason for the decision in the case.

For me, the matter is put beyond doubt by the decision of this court in Ford -v- Metropolitan and Metropolitan District Railway Companies [1886] 17 Q. B. 12. As appears from p. 20 in the judgment of Lord Esher, M.R.:-

"The chief point argued is this: it was argued that we were bound by authority to hold that if the Arbitrator awards any compensation upon such a claim as this for injury, when it is injury only existing during the continuance of the work, and does not confine himself to injury which remains when the work is finished, the award is bad. That has always struck me as an exceedingly strange proposition - that compensation may be given for the injury which exists at the time when the work is finished, and yet that no compensation is to be allowed for the very same injury which exists during the progress of the work. That has always seemed to me to be a very fine distinction, which I could not understand; and when we look into the authorities, we find that it is based on an expression of Lord Chelmsford. I cannot help thinking that that expression, which has been cited from Ricket -v- Metropolitan Railway Company decided in the House of Lords, and has been relied upon as an opinion of Lord Chelmsford, is open to the explanation that it is a defective expression; he did not intend to say that which no doubt his words, prima-facie, seem to imply. But be that as it may that expression of his, as has been pointed out, was not adopted by Lord Cranworth in the very same case, and certainly seems to have been spoken of, to say the least, with doubt by Lord Selbourne in Caledonian Railway Company -v- Walker’s Trustees. I cannot, therefore, take that expression of Lord Chelmsford’s as a binding authority upon this court, as a question of the House of Lords. If that be so, we are driven back to principle. As I have said, I cannot believe that a fine drawn distinction which seems to me unreasonable can be the law, and therefore I cannot think that the mere fact that the Arbitrator has given some compensation for injury done before the works were completed, invalidates the award."

I add the emphasis to show that the point was central to the decision. Cotton L.J. was of the similar view that Ricket was not binding upon the court and he said at p. 24-

"In my opinion it would be wrong, and to take a very narrow view of this Act, to say that compensation for injury caused by the exercise of the powers vested in the Company is to be confined to injury caused by the works when constructed. In my opinion the right to compensation ought to include also injury caused to the house, not only by the works when finished, but by the exercise of the powers of the Act in the course of putting up those works....I should say “construction” (in Section 6 of the railway Clauses Act 1845) points to the actual construction of works as well as to works when constructed."

Finally, Bowen L.J. said:-

"I cannot help thinking that on the plain reading of the Act of Parliament an injury may be done to houses and land, (if it is injury sufficient to lessen the value of the property,) quite as fully during the progress of the work, as by the works after they have been constructed."

It was thus the unanimous view of the Court of Appeal that Lord Chelmsford’s language was not an integral part of the decision in Ricket’s case. They were not bound by it. Neither am I. But, since this was, as I have indicated, a point fully material for the court’s decision, then it cannot be treated as obiter and it is binding upon us.

No case was cited to us which throws doubt upon Ford which has stood the test of more than a century. On the contrary it was applied by this court in Lingke -v- Christchurch Corporation [1912] 3 KB 595, 607 where Fletcher Moulton L.J. said:-

"But since the case of Ford -v- Metropolitan and Metropolitan District Railway Cos which was decided in this court in 1886, it has been settled law that the fact that an interference is only temporary and that it takes place during the construction of the works is not fatal to the right to compensation. Where the interference would give ground for compensation if perpetual, then if it is temporary, but not for a negligible time, it will also give ground for compensation."

I find it difficult to ignore the persuasive force of that observation. It is correct that Section 308 of the Public Health Act, 1875 is couched in terms that “where any person sustained any damage by reason of the exercise of any of the powers of this Act”, (emphasis added) but the difference between that and the language of the 1845 Act does not seem to me to be crucial. He who has an interest in land sustains damage when his land is injuriously affected. Moreover the court in Lingke was clearly of the view that they should follow the Lands Clauses Consolidation Act cases in the House of Lords. They adopted the same approach, namely, 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 plaintiffs. Since the action in nuisance would lie, there is no justification for denying compensation.

The choice of valuation date does not present an obstacle to compensation being assessed, albeit with difficulty on a letting value basis or otherwise for loss of amenity, given the way in which the case proceeded before the Member. His decision records that:-

"In the course of argument the parties accepted that the obvious date by reference to which compensation must be assessed is the date when the works giving rise to the entitlement to compensation are complete...Mr Mole also accepted that if, as I have found, the claimant may be entitled to compensation for temporary damage which comes to an end on the completion of work, then as at that date what must be assessed is the loss which has been suffered up to that date. If that has to be assessed by reference to annual values the relevant values must be the values at the date when the loss was in fact suffered."

Pausing only to say that an action for consequential loss is not to be excluded, I agree with the decision of the Member and consequently I would so answer the third question posed by him.

On this issue I am entirely in agreement with my Lords. Just as I see no reason why the claimant should get less in the case of a temporary interference, I see no reason why he should get more than he would have been entitled to had he been able to bring his action in tort. The Member did not err in this respect.

For my part, I would allow the appeal on question 1 and dismiss the cross-appeal.

Peter Gibson L.J.: To those unfamiliar with the law of compulsory purchase it may come as a surprise that in the late 1990s that part of the law which relates to injurious affection of land not held with land compulsorily purchased is still governed by the construction given by the courts to a section of an Act passed over 150 years ago. That surprise may be the greater because s.68 Lands Clauses Consolidation Act 1845 has given rise to difficulty and a divergence of views and, as Lord Wilberforce said in Argyle Motors v Birkenhead Corp. [1975] A.C. 99 at p.129, the section has received an interpretation which fixes on it a meaning having little perceptible relation to the words used. Thus although s.68 is in form merely procedural, Lord Wilberforce pointed out that it has been interpreted as a compensation section, "i.e., it authorises the payment of compensation "in respect of any lands, or of any interest therein, which shall have been injuriously affected by the execution of the works, ... ."" Moreover although the section is expressed to apply where lands or any interest therein shall have been " taken for or injuriously affected by the execution of the works" (my emphasis), as Lord Wilberforce indicated in the passage which I have cited, the section has been interpreted as applying as though the words emphasised by me were not there. S.10(1) Compulsory Purchase Act 1965 repeats the words of s.68 including the words "taken for or injuriously affected", but subs. (2) makes clear that it must be construed in the way in which s.68 has been construed, as conferring the same right to compensation for injurious affection to land.

Five limitations on the right, conferred by s.68, to compensation have been distilled by commentators from the decided cases, viz.

"I The injurious affection must be the consequence of the lawful exercise of the statutory powers relating to the execution of the works.

II The injurious affection must be such that if not caused by the acts done under statutory authority it would give rise to a cause of action.

III The value of the land or interest must be directly affected by physical interference with some legal right, public or private, which the claimant is entitled to make use of in connection with his property.

IV The damage must arise from the execution of the authorised works and not from their use.

V The compensation must be ascertainable in accordance with the general rules applicable to damages in tort." (Encyclopedia of Compulsory Purchase, para. 2-1568)

At least one of those limitations is challenged in this appeal. I would emphasise that the limitations are cumulative. Thus it is not enough to find that the injurious affection would have given rise to the tort of nuisance if caused by works not under statutory authority. For example, if the tort would have been undue interference with a landowner's comfortable and convenient enjoyment of his land, that would not suffice unless the third limitation was satisfied. Again, if the injurious affection arose from the use of the authorised works it would not be compensatable by reason of the fourth limitation even if the first, second and third limitations were satisfied.

Of the 2 questions of law stated by the Lands Tribunal in its Case Stated requested by the Appellants, the first, as amended in this court, is whether the Lands Tribunal erred in law in deciding that compensation is not payable under s.10 where an interference to some legal right, public or private, is not a direct physical interference to land or a right appurtenant to land.

Mr. Harper Q.C. for the Appellants submitted that the true test of compensation entitlement was whether the injurious affection was attributable to an interference which was capable of being an actionable wrong, and not whether the interference capable of being an actionable wrong was a physical interference or not. Thereby Mr. Harper challenged the correctness of the third limitation from the Encyclopedia. Mr. Harper pointed to the way Mr. Thesiger Q.C. is recorded in the note of the argument in Metropolitan Board of Works v McCarthy (1874) L.R.7 HL 243 at p.249 as having put the proposition which was accepted by the House of Lords and as having explained that proposition:

"The principle to be deduced from a consideration of all the cases is this, that where by the construction of works there is a physical interference with any right, public or private, which an owner is entitled to use in connection with his own property, he is entitled to compensation if, by reason of such interference, his own property is injured. The word "physical" is used in order to distinguish the case from cases of that class where the interference is not of a physical, but rather of a mental, nature, or of an inferential kind, such as those of a road rendered less agreeable or convenient, or a view interfered with, or the profits of a trade, by the creation of a new highway or street, diminished in the old one."

Mr. Harper submitted that it was sufficient that the value of land was affected by matters such as noise, dust and vibration which would be actionable if produced without statutory authority even though there was no physical interference.

I am not able to accept those submissions. Mr. Thesiger did not suggest that the interference need not be physical nor did the House of Lords in adopting Mr. Thesiger's proposition expand on the reference to "physical" interference in the way Mr. Thesiger did or at all. As the Lands Tribunal pointed out, Mr. Thesiger was setting out the effect of earlier decisions and may well have had in mind the remarks of Lord Cranworth in Ricket v Metropolitan Railway Co. (1863) L.R. 2 H.L. 175 at p.198 referring to "actual injury to the land itself, as 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". No case under s.68 has been shown to us where compensation was awarded without there being direct physical interference with the land, or a right appurtenant to the land, of the person to be compensated. I accept the submission of Mr. Mole Q.C. for the Respondent that although it is a necessary condition that the injurious affection must have been actionable but for statutory authority, it is not a sufficient condition. The proposition that everything gives rise to a claim for compensation if, but for the statute, it would be actionable is not true. Thus it is clear that damage arising from the use of the land with the authorised works, even though actionable but for statutory authority, is not compensatable ( Hammersmith Railway Co. v Brand (1869) L.R. 4 H.L. 171). Moreover Lord Wilberforce in Argyle Motors , supra at p. 130, cautioned against extending the scope of compensation by judicial decision

In my judgment therefore it is plain that the Lands Tribunal did not err in law in relation to the first question which falls to be answered in the negative.

The second question stated by the Lands Tribunal is whether it erred in law in deciding that where there has been interference with some legal right, public or private, which is capable of giving rise to a claim for compensation under s.10, the quantum of damages recoverable as compensation does not include all injurious affection attributable to and caused by the execution of works, whether or not caused by an interference, physical or otherwise, with some public or private legal right.

Mr. Harper submitted that once there has been interference giving rise to a claim for compensation, all injurious affection caused by the works is compensatable even though it did not amount to a legal wrong. That seems to me wrong in principle, as offending the second recognised limitation on the right conferred by s.68 to compensation. If Mr. Harper were right, it would have the surprising consequence that a person whose land was injuriously affected by works executed under statutory authority would be better off than a person whose land was injuriously affected by other works. In Metropolitan Board of Works v McCarthy (1874) L.R. 7 H.L. 243 at p.262 Lord Penzance said:

"It may reasonably be inferred that the Legislature, in authorizing 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."

Mr. Harper relied on Re London, Tilbury and Southend Railway and Gowers Walk School (1889) 24 Q.B.D. 326. But that case is authority only for the proposition that a person is entitled to compensation for all the injurious affection caused by the interference to his right to access to light, in the same way that he could have recovered damages in tort in an action for that interference, but for the statutory authority for the works. I accept Mr. Moles' submission that that case is not authority for the proposition that a wider measure of compensation than that allowable in an action for tort may be obtained in s.68 cases (see Horton v Colwyn Bay Urban District Council [1908] 1 KB 327 at p.341). A claim to compensation under s.10 is to be distinguished from a claim to compensation under s.7 of the 1965 Act the words of which have been construed more widely (Encyclopedia, para. 2-1549).

Accordingly I answer this question in the negative too.

The question posed by the Lands Tribunal in the further Case Stated requested by the Respondent is whether the Lands Tribunal erred in law in holding that compensation is payable under s.10 when the interference is only temporary and where, after such temporary interference, the value of the land has ceased being affected by the past interference.

It is common ground that if the temporary interference is such as to affect adversely the value of the land at the date of valuation for compensation purposes, then it will be taken into account. For example, a temporary loss of profits because of the works may nevertheless have an adverse effect on the value of the land. The question however is based on the hypothesis that at the valuation date any adverse effect of the interference has expired.

This question is by far the most difficult of the three questions, in particular because of the puzzling decision of this court in Ford v Metropolitan and Metropolitan District Railway Companies (1885) 17 Q.B.D. 12, which the Lands Tribunal considered to be determinative of the point raised by the question. But for the reasons given by Pill L.J. I am not persuaded that that case establishes that for the purposes of s.68 a temporary interference which is not such as to affect the value of land when the works are completed gives rise to a right to compensation under that section.

What in my judgment is crucial is the date at which the value of the land is to be assessed. In the present case it was accepted before the Lands Tribunal that the date by reference to which compensation must be assessed is the date when the works giving rise to the entitlement to compensation are complete. In the light of that, as well as the acceptance of the principle that there must be a loss in the value of the land for compensation to be recoverable, I do not understand how a temporary loss of value which would have been observable at earlier dates but which was no longer obtaining at the agreed date of assessment can give rise to a claim for compensation. When Mr. Harper was asked how the Appellants arrived at the figure for their claimed loss, we were taken to their expert's statement of the basis of valuation. That basis was to postulate a lease of the Appellants' hotel with 5-year rent reviews, and to assess the difference between the rental value of the hotel subject to the works and the rental value if there had been no works. That rental value was assessed first at the date when the works had just commenced and second at a rent review 5 years later when the works were about to end. The loss of profits was the major factor in the assessment of the loss. The correctness of the Appellants' assessment has not been pronounced upon by the Lands Tribunal, and Mr. Harper, understandably, was not in a position to address us on it. But I feel bound to say that the method used to arrive at the calculation of the temporary loss of value of the hotel serves to illustrate the artificiality of assessing that loss when the loss of profits is not an allowable subject of compensation. It is an attempt to dress up part of the temporary loss of profits as a loss of value of land when that value has not in fact been lost because the land, which remains in the hands of the Appellants, ex hypothesi has ceased to be adversely affected by the temporary interference at the time when the value is to be assessed. That seems to me inconsistent with the principles reaffirmed in Argyle Motors .

Accordingly I would answer this question in the affirmative.

For these reasons as well as those given by Pill L.J. I would dismiss the Appellants' appeal and allow the Respondent's cross-appeal.

ORDER: Appeal dismissed and respondent's cross-appeal allowed as per judgment; matter be remitted to Land Tribunal with the opinion of the court for further hearing; appellant do pay costs of respondent in Court of Appeal, such costs to be taxed if not agreed; leave to appeal to House of Lords.

(Order not part of approved judgment)