Clift v Welsh Office

Compensation for injurious affection under section 10 of the Compulsory Purchase Act 1965 reflects the common-law cause of action that statutory works would otherwise have created. The qualification in Andreae v Selfridge & Company Ltd [1938] Ch. 1 for temporary, normal building operations concerns personal inconvenience and intangible loss. It does not protect the operator from liability for actual physical damage to neighbouring property.

Obstruction of direct access may found a claim whether access is public or private. Temporary interference with nearby roads and footpaths may constitute special damage where it is materially greater than the inconvenience suffered by the public generally, even where access remains. Third-party rat-running may be attributable to roadworks where it was a probable and known consequence.

The Welsh Office appealed by way of case stated from a decision of the Lands Tribunal dated 16 October 1996. The Tribunal awarded Mr and Mrs Clift £400 under section 10 of the Compulsory Purchase Act 1965 for loss in the value of their property arising from A55 improvement works.

The claim concerned physical damage caused by noise, dust, mud and vibration, and interference with access through nearby public roads, footpaths and a private service lane. The Welsh Office argued that the principle in Andreae v Selfridge & Company Ltd excluded liability for physical damage, and that the access effects did not amount to special damage for public nuisance. The case stated also questioned whether the findings established loss in the value of land. The central issues were whether the Tribunal had erred in law on those points.

1. Outcome. The Court of Appeal, delivering a single judgment through Sir Christopher Slade, dismissed the appeal with costs. The Lands Tribunal had not erred in law on any of the three questions in the case stated.
2. Physical damage. Section 10 of the Compulsory Purchase Act 1965 adopts the meaning given to injurious affection under section 68 of the Land Clauses Consolidation Act 1845. The relevant claim must correspond to a cause of action which would have existed without statutory authority. The court accepted the distinction between nuisance causing personal inconvenience and nuisance causing actual physical damage to land. The rule in Andreae v Selfridge & Company Ltd [1938] Ch. 1, as explained through Harrison v Southwark & Vauxhall Water Co. [1891] 2 Ch 409, did not extend to physical damage caused by temporary works carried out with reasonable precautions. The reasoning in Biard v Deal Corporation (1961) 12 P. & C.R. 398 was approved, and the conclusion was consistent with Harris v Carnegies Pty.Ltd. [1917] V.L.R. 95.
3. Access and special damage. The court applied the principles in Metropolitan Board of Works v McCarthy (1874) L.R. 7 H.L. 243 and Caledonian Railway Company v Walker’s Trustees (1882) 7 A.C. 259. Obstruction of direct access to land is a proper subject for compensation whether the access is public or private, provided it is sufficiently proximate and the statutory conditions are met. The respondents’ continued access did not prevent special damage. The temporary interference with roads and footpaths near the property was sufficiently substantial and affected the respondents more than the public generally. Ricket’s case was treated as a remoteness decision concerning business profits, rather than authority against a claim for direct access interference.
4. Rat-running. Applying the foreseeability reasoning in Cambridge Water Co. Ltd. v Eastern Counties Leather PLC [1994] 2 AC 264, the court held that the Welsh Office could be liable although rat-running was carried out by trespassers. The roadworks created a situation in which the Welsh Office must have known that rat-running was a probable consequence and was occurring. The Tribunal was therefore entitled to treat it as nuisance, with Walker v Brewster 5 Eq. 25 and Sedleigh-Denfield v O’Callaghan [1940] AC 880 providing comparable authority.

1. Court of Appeal. In Clift & Anor v Welsh Office [1998] EWCA Civ 1273, the appeal by case stated was dismissed with costs.
2. Lands Tribunal. By a decision dated 16 October 1996, the Tribunal awarded £400 under section 10 of the Compulsory Purchase Act 1965.