John Bland Charlton & Anor v Northumbrian Water Limited

Under paragraph 2(3) of Schedule 12 to the Water Industry Act 1991, injurious affection bears its established meaning in compulsory-purchase compensation law. It does not cover loss arising merely from the authorised continuing use of neighbouring land where that use would not otherwise be tortious.

The separate expression damage to land is wider than injurious affection, but concerns physical damage or physical factors affecting land, such as smell, noise or obstruction of light. It does not include a purely intangible diminution in value caused by purchasers’ perceptions or anxieties about nearby infrastructure.

The claimants owned Bleach Green Farm. The respondent constructed an underground sewage storage reservoir on neighbouring land, close to the farm’s boundary. The claimants alleged that the reservoir and an upgraded access track reduced the farm’s value because prospective purchasers might be concerned about odours, flooding and the appearance of the access.

They sought compensation under paragraph 2(3) of Schedule 12 to the Water Industry Act 1991. The parties agreed that the respondent was exercising pipe-laying powers and that the farm was not relevant land. The Tribunal determined the preliminary issue whether the alleged diminution was damage to, or injurious affection of, land within that provision.

1. The preliminary issue was determined against the claimants. Their claimed diminution in value was not compensable under paragraph 2(3) of Schedule 12 to the Water Industry Act 1991. Since they had abandoned their other heads of claim, the reference came to an end.

2. Injurious affection in paragraph 2(3) has the same long-established technical meaning as in section 10 of the Compulsory Purchase Act 1965. Parliament’s express incorporation of other statutory provisions for assessment did not displace that settled meaning. The expression therefore assists only where the loss would otherwise found a tort claim and arises from the execution of works, rather than their authorised continuing use.

3. Wildtree Hotels Ltd v Harrow LBC [2001] 2 AC 1 confirmed that injurious affection may include a temporary diminution in value. That did not assist this claim. The alleged loss resulted from the continuing presence and use of the reservoir, not from its construction, and the presence of a reservoir on neighbouring land was not itself tortious.

4. The words damage to … any land are not synonymous with injurious affection. They extend to physical damage and physical factors affecting land, including smell, noise and obstruction of light. However, they do not extend to depreciation based solely on prospective purchasers’ perceptions or anxieties, without a physical basis. The Tribunal left open whether a qualifying physical factor arising during the reservoir’s later use could be compensable.

not stated in the judgment.