The Supreme Court has dismissed an appeal by the representatives of Terence Chadwick, deceased, and Sheelagh Davis-Goff over compensation for the effect of a motorway scheme on land they retained after Fingal County Council acquired a small part of their property.
In a judgment delivered by Mr Justice Fennelly on 6 November 2007, the Court affirmed the High Court’s answer to a question referred by the Property Arbitrator. It held that compensation for injurious affection under section 63 of the Lands Clauses Consolidation Act 1845 was confined to damage caused by works or use on land acquired from the claimants. The Court did not determine the amount of any reduction in the value of the retained property.
The property was about a mile north of Swords and comprised an 18th-century house, farm buildings, a gate lodge and about 18 acres. The Council compulsorily acquired about 0.047 hectares in two plots at its eastern end for the scheme. Neither plot formed part of the motorway carriageway: one was used for an embankment leading to a bridge, while the other was part of an existing roadway. The house was 198 metres from the motorway carriageway at its closest point.
The claimants argued that the statute allowed compensation for harm caused by the scheme as a whole, including works on land not acquired from them. They relied on an Australian High Court decision that had declined to follow the English decision in Edwards v Minister of Transport. The Council supported the High Court’s interpretation, arguing that the established authorities confined compensation to the effects of works on the acquired land.
The Supreme Court found a consistent line of authority supporting that interpretation and declined to depart from it. It said the Australian case concerned differently worded legislation and did not govern the interpretation of section 63. It also rejected the claimants’ constitutional argument, finding no unjust attack on property rights in the compensation scheme described in the judgment.
The Court corrected a separate point in the High Court’s judgment. The High Court had said compensation for injurious affection was limited to effects that would otherwise be actionable, such as nuisance. The Supreme Court held that this was wrong: compensation for damage to retained land could be payable even where the authorised acts were lawful. That correction did not alter the answer to the arbitrator’s question or the outcome of the appeal. The appeal was dismissed and the High Court order affirmed.