Supreme Court dismisses appeal on compensation for injurious affection, upholding traditional statutory interpretation of land acquisition acts.

THE SUPREME COURT

APPEAL NO: 407/2003

Murray C.J.

Fennelly J.

Kearns J.

Macken J.

Finnegan J.

IN THE MATTER OF THE ACQUISTION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

THE PROPERTY VALUES (ARBITRATION AND APPEALS) ACT 1960, THE ARBITRATION ACTS 1954 AND 1980,

THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 – 1993,

THE LOCAL GOVERNMENT (NO. 2) ACT 1960,

THE HOUSING ACT 1966,

THE LOCAL GOVERNMENT (ROADS AND MOTORWAYS) ACTS 1974 – 1993,

THE FINGAL COUNTY COUNCIL NORTHERN MOTORWAY (AIRPORT TO BALBRIGGAN BY-PASS) SCHEME 1995,

CONFIRMATION ORDER OF THE MINISTER FOR ENVIRONMENT DATED 30TH DATED MARCH 1998

CASE STATED BY THE PROPERTY ARBITRATOR

BETWEEN

THE REPRESENTATIVES OF TERENCE CHADWICK DECEASED

AND SHEELAGH DAVIS-GOFF

CLAIMANT/APPELLANT

AND

FINGAL COUNTY COUNCIL

RESPONDENT/RESPONDENT

JUDGMENT delivered by Mr Justice Fennelly on the 6th day of November, 2007.

1. Mr John R. Shackleton, the Property Arbitrator, has posed a question, in a case stated, regarding compensation for injurious

affection arising from compulsory acquisition of land. The appellants, who are the claimants for compensation, appeal against the

judgment of O’Neill J, dated 17th October 2003, in which the learned judge answered the question in the case stated in a manner

unfavourable to the appellants.

2. The arbitrator was following a long-held and widely understood interpretation of section 63 of the Lands Clauses Consolidation Act

1845, when he asked the court if he was right in holding that:

“……the compensation for injurious affection to the lands retained by the claimants, caused by the carrying out of the

works and subsequent use of the motorway, is limited to injurious affection caused by such works on and such use of, the

land actually acquired from the claimants?”

3. The view of the law thus expressed was applied in a well-known decision of the Court of Appeal in England in Edwards v Minister of

Transport [1964] 2 Q.B. 134 (hereinafter “Edwards”) and has been followed here for many years, though never considered in our

courts. The appellants say that Edwards was wrongly decided and invite the Court to follow the example of the High Court of

Australia and decline to follow it. The debate takes the Court back to a consideration of a number of decisions of the English courts

dating back to the mid-nineteenth century.

The Facts

4. The respondent council (hereinafter “the Council”) are empowered by the acts and orders set out in the case stated to construct

a motorway from the existing M1 at Dublin Airport to the Balbriggan By-Pass. The Fingal County Council Northern Motorway (Airport to

Balbriggan By-Pass) Scheme, 1995 (“the scheme”) empowered the Council to acquire, inter alia, certain lands of the appellants.

5. The claimants are the owners of a property about a mile north of Swords and nine miles from Dublin City Centre, east of the

existing M1 national primary route. The property comprises a substantial three storey 18th century house on circa 18 acres (7.3

hectares) of land together with farm buildings and a gate lodge. For the purposes of the scheme the Council compulsorily acquired

from the appellants 0.047 hectares (circa .116 acres). That land comprised two plots, plot 47 and plot 47 A, both at the eastern end

of the claimants land. No part of the land taken under the scheme, formed part of the carriageway of the new motorway. Plot No. 47

was used as part of the embankment leading up to the bridge which spanned the Malahide estuary. None of the works were

constructed on plot 47A which formed part of an existing roadway. The claimant's residence is 198 meters from the carriageway of

the motorway at its closest point and 250 metres from the bridge abutment.

6. It can be seen, therefore, that only a very small plot of land was compulsorily taken for the purposes of the motorway. Further, no

part of that motorway was to be laid out on the lands taken, though one of the plots was designated for use as an embankment,

which, as stated in the case stated, will be planted with semi-mature trees and other plantings.

7. The appellants’ case for compensation for injurious affection to their remaining lands was stated by the arbitrator as being based

on evidence that, “without prejudice to the contention that [he] was not allowed to take such matters into account,…… the value of

[the appellants’] retained lands has been, or will be, devalued by virtue of the construction and subsequent use of the motorway

scheme in general.” (emphasis added). The amount of any claimed reduction in value has not been determined by the arbitrator.

Statutory provisions

8. Section 63 of the Lands Clauses Consolidation Act 1845 provides as follows:

“In estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases

aforesaid, regard shall be had by the justices, arbitrators, or surveyors, as the case may be, not only to the value of the

land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by

the owners of the land by reason of the severing of the lands taken from the other lands of such owner, or otherwise

injuriously affecting such other lands by the exercise of the powers of this or the special act, or any act incorporated

therewith.”

9. It is common case that section 63 has been applied by the various statutes empowering public authorities to acquire land

compulsorily and requiring them to pay compensation. The combined effect of section 52 of the Roads Act, 1993, section 10(1) of the

Local Government Act, 1960, as inserted by section 86 of the Housing Act, 1966 and the Third Schedule to the latter statute is to

make section 63 applicable to the assessment of compensation. The reference in section 63 to the “special act” must be taken as

referring to the scheme as confirmed.

10. Some of the reported cases turn on the distinction between section 63 and section 68 of the act of 1845. The latter provision

applies where “…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……………” This provision has been interpreted as applying to

compensation for things done during the essentially temporary phase of the “execution” of the authorised works, but also as making

such compensation available to landowners from whom no land has been taken. The principles regarding compensation under the

modern English version of section 68 are extensively reviewed by Lord Hoffmann in Wildtree Hotels Ltd v Harrow London Borough

Council [2001] 2 AC 1.

The High Court Judgment

11. O’Neill J examined the authorities comprehensively. He considered that Edwards had been correctly decided and declined the

invitation of the appellants to prefer the Australian High Court decision in Marshall v. The Director General, Department of Transport

[2001] H.C.A. 37 (hereinafter “Marshall”). Consequently, he held that the arbitrator had been correct to confine the right of the

appellants to claim compensation to the effects of what was done on the land taken.

12. He considered that “the rule which permits compensation to a land owner from whom land has been taken for injury caused by the

user of the taken lands but confined to the user on the taken lands is also rational, right in principle and fair…”

O’Neill also held, however, that “no compensation should be paid where the injury would not otherwise attract damages…” so “that

compensation can only be awarded under section 63 and in respect of a wrong which would be actionable but for the intervention of

Parliament…”

13. As I will explain, this latter pronouncement, relating to a secondary issue, is based on a mistaken view of the meaning of “injurious

affection” in section 63. It was not the subject-matter of the case stated and it is not clear to me why the learned judge found it

necessary to decide it. In circumstances where the High Court has pronounced on the matter, it is necessary to correct it. A similar

situation arose in the case of C.C v Ireland and others [2005] IESC 48. (see especially the judgment of Geoghegan J).

The submissions of the appellants

14. Mr Hugh Mohan, Senior Counsel for the appellants, relied essentially on the plain and natural meaning of the words of section 63.

The injurious affection to be compensated is caused “by the exercise of the powers of this or the special act, or any act incorporated

therewith.” It is common case, as I have said, that these words should be read as referring to the scheme. According to Mr Mohan,

the reading advocated by the Council would require the insertion of the words, “on the land taken,” or similar words at the end of the

section. The courts cannot interpolate words into a statute.

15. Mr Mohan pointed out that Edwards is not an authority binding on this Court and submitted that it was, in any event wrongly

decided. Harman L.J. was mistaken in relying on the authority of In re the Stockport, Timperley and Altringham Railway Co. (1864) 33

L.J.Q.B. Relying on the headnote to the separate report of that decision in Law Times Reports, Vol X, N.S. May 21st 1864, he

submitted that it was not a decision on section 63, but on section 68 of the Act of 1845. Harman L.J. was equally mistaken in his

reliance on the decision of the House of Lords in Duke of Buccleuch v Metropolitan Board of Works (1872) L.R. 5 H.L. 418. In that

case, the Duke was compensated for the general effects of the building and use of the Thames Embankment, not limited to the land

taken. The appellants also question the treatment by O’Neill J of the House of Lords decision in Cowper Essex v. Local Board for Acton

[1889] 14 APP. CAS. 153 as conclusive authority, suggesting that the House there misinterpreted the Duke of Buccleuch case and

that, in any event, the decision does not deal expressly with the case of injurious affection caused by works on lands not taken.

16. Mr Mohan relied particularly on Marshall, in which Edwards was very fully considered and not followed. The words of the applicable

Australian provisions, though different, were not materially so.

17. Mr Mohan relied, moreover, on the obligation of the courts to interpret section 63 in harmony with the Constitution, since

enactments passed since 1937 have expressly applied that section. The appellants’ property rights require that, where their property

is compulsorily acquired, the compensation rules should be interpreted so as to compensate them for damage caused, whether by

works on or off the land taken. The appellants cite the judgment of Keane J in Underwood v Dublin Corporation [1997] I.R. 69.

Submissions of the Council

18. Mr James O’Reilly, Senior Counsel and Mr Patrick Butler, Senior Counsel, for the Council, fully supported the reasoning of the

learned High Court judge in respect of the answer given to the arbitrator’s question. They were less clear in respect of his view on

the secondary issue, namely that compensation for injurious affection is limited to matters which could have been the subject-matter

of an action in nuisance. However, ultimately, Mr O’Reilly did not support that view. Most importantly, they supported the learned

judge’s analysis of the principal authorities relied upon in Edwards. They also argued that Marshall should, at the very least, be

distinguished, principally on the ground that the applicable legislation was different.

Conclusion

19. Although Edwards does not bind this Court, it is worth observing that it has been very generally applied by the property

arbitrators in this jurisdiction. In my own experience, that has been so for more than thirty years. Hence, it has not, prior to now

been questioned in any proceedings in the High Court or this Court. While obviously not binding, Edwards provides a useful starting

point, since it brings together the line of authority, long thought to justify the interpretation applied to section 63.

20. The first and, in effect, the crucial case is In re the Stockport, Timperley and Altringham Railway Co. Though doubted at one

time by some English judges, it came to be recognised as soundly based and was approved by the House of Lords and the Privy

Council. I am quite satisfied that O’Neill J was correct in reading that case as being concerned with section 63 and not 68 of the Act

of 1845. The latter provision is concerned with transitory damage caused during the construction phase and it has been held that

compensation may be claimed by landowners from whom no land is taken. The headnote reference to section 68 appears only in the

Law Times version of the report of Stockport. There is no reference to either section by number in the body of either report of the

case (see citation above). However, the text of the judgment of Crompton J showed that compensation had been assessed (by a

jury) in the following form:

“a certain sum for the value of the land taken, another for the damage by severance, and a third, which included injury to

the premises, by reason of the risk of fire being so much increased by the proximity to the railway as to render it less fit

and convenient for the purposes of a cotton-mill, and to make the mill not insurable, except at a greatly increased

premium, and so to render the property of less value to a purchaser.”

21. Such an assessment can have been made only pursuant to section 63. The first two heads of compensation arise only under that

section and the third relates to permanent injurious effect on the retained mill, not to the effects of the execution of the works under

section 68. This decision demonstrates, firstly, that the learned High Court judge was incorrect in his view on what I have called the

secondary matter, namely that compensation for injurious affection must be limited to what may be the subject-matter of an action in

nuisance or for another tort. Crompton J noted the submission of the railway undertaking that “the case fell within the well

established rule that compensation is only given by such Acts of parliament where what would have been unlawful and actionable but

for the Act of Parliament is permitted by the Act of Parliament and compensation thereof allowed in lieu and by reason of such right of

action being taken away.” The question was, he continued, “whether such rule is at all applicable to cases where part of the land is

taken and compensation is given, not only for the value of the part taken, but for the rest of the land being injuriously affected,

either by severance or otherwise…” He was of opinion that “the rule in question does not apply to such cases.”

Crompton J went on to provide the answer to the primary question, the question which is raised in the present case stated as

follows:

“Where the damage is occasioned by what is done upon other lands which the company have purchased and such

damage would not have been actionable as against the original owner as in the case of the sinking of a well and causing

the abstraction of water by percolation, the company have a right to say, "We have done what we had a right to do as

proprietors and do not require the protection of any Act of parliament, and we therefore have not hindered you by virtue

of the powers of the Act and no cause of action has been taken away from you by the Act.

Where, however, the mischief is caused by what is done on the land taken, the party seeking compensation has a right to

say, it is by the Act of Parliament and by the Act of parliament only that you have done the acts which have caused the

damage. Without the Act of parliament everything you have done and are about to do in the making and using of the

railway would have been illegal and actionable, and is therefore a matter for compensation according to the rule in

question.”

22. The Stockport case, therefore, drew a distinction between cases (decided under section 68) where compensation was payable

only for acts which would have been actionable and unlawful but for the powers conferred by statute and cases where works or

structures are placed on the land taken which injuriously affect the retained lands. In the latter case, compensation is payable,

though the acts are lawful. But they must have been performed on the lands taken.

23. The case of the Duke of Buccleuch arose from the construction of the Thames Embankment pursuant to the Thames Embankment

Act, 1862. The Duke owned Montague House and had enjoyed the benefit of extensive private access to the Thames via a private

causeway and jetty constructed outside his garden and on the river bank. The causeway and jetty were taken for the construction

of the Embankment with a public highway to be constructed along it, between the Duke’s garden and the river. The Duke’s lack of

title to part of the jetty and the flow of the river did not affect his claim. They were treated under the act of 1862 as “lands” for the

purposes of the Lands Clauses Acts (per Martin B at page 453). He was treated as the owner of lands taken. An umpire (appointed by

arbitrators) awarded a sum which included £5,000 by reason of the fact that Montagu House, the Duke’s retained property, “would be

of less value to be occupied by a nobleman or gentleman than it had been before.” There would, he said, “be traffic, and dust, and

dirt and commotion, and noise, which seemed to me to alter the character of the house completely.” (see page 422 of the report).

Lord Chelmsford, speaking for the majority of the House said that the question was “whether the umpire was authorized to give

compensation in respect of the depreciation of Montagu House by the conversion of the land between it and the river into a highway,

and the consequent public use of it.”

24. He thought that the answer depended, partly on the interpretation of section 63 and partly on that of section 27 of the special

Act, which provided for compensation for “the damage (if any) to be sustained by the owner of the lands by reason of the severing of

the lands taken from the other land as such owner, or otherwise injuriously effecting such other lands by the exercise of such power.”

In reality, there is no material difference between the two statutory provisions. Lord Chelmsford’s opinion (see page 459) was:

“The plaintiff was the owner of land within the meaning of this clause in respect of the causeway which was taken away

from him. It is quite immaterial whether the soil of the causeway belonged to him or he had merely an easement over it;

for by the 4th section of the Thames Embankment Act, the word "lands" is to include easements, interests, rights, and

privileges in, over, or affecting lands; and the 27th section of the same Act empowers the Metropolitan Board of Works to

appropriate by grant or demise any reclaimed land, &c., to any owner of lands now situated on the present left bank and

river frontage of the river Thames…….

This section contemplates two descriptions of damage likely to be sustained by the owners of land on the bank and river

frontage of the Thames - one loss of the river frontage; the other in any other manner, by reason of the embankment or

other the exercise of any of the powers of the Act.

It seems to me to be quite clear that the umpire was entitled to consider not only the damage which the plaintiff

sustained by being deprived of the causeway but also whether he was entitled to compensation in respect of damage

otherwise sustained by reason of the embankment. Now, if he was of opinion that Montague House was depreciated in

valued as a residence by reason of the proximity of the embankment and of all the consequences of its use as a public

highway, he was bound to give the plaintiff some compensation, and the amount proper to be awarded was entirely for

him to determine.

It can hardly be doubted that in addition to the damage sustained by the loss of the river frontage the house must have

been "injuriously affected" – i.e. depreciated in value – by way of in interposition between it and the river of an

embankment to be used as a public highway; and this seems to bring the right to compensation within the very words of

the 27th section of the special Act because it is damage otherwise than by loss of the river frontage by reason of the

embankment or roadway.”

25. Although Lord Chelmsford twice refers to the fact of the proposed new highway or road along the embankment being between the

house and the river Thames, it does not appear that the case expressly addressed the issue whether the compensation could take

account of the effects of the road running along parts of the embankment other than that taken from the Duke. Neither do the law

lords refer at all to the Stockport case. If the case of the Duke of Buccleuch, had stood alone, it might have been doubted that it

had approved the principle first laid down in the Stockport case. Nonetheless, it has been read and understood to that effect, in the

subsequent authorities.

26. Duke of Buccleuch was expressly approved by the House of Lords in Cowper Essex v. Local Board for Acton. That case concerned

compensation claimed for injurious affection in the form of reduction of value to retained lands resulting from the existence of sewage

works, constructed, without nuisance, on the lands taken. Lord Watson, stated, at page 166, that it resulted from the authorities

that:

“…a proprietor is entitled to compensation for depreciation of the value of his other lands, in so far as such depreciation is

due to the anticipated legal use of works to be constructed upon the land which has been taken from him under

compulsory powers. The construction of the Act which has been thus adopted by the House had previously been enforced

by Mr Justice Crampton in the Stockport case.”(emphasis added).

27. Here again is a clear statement in the words underlined that the claim for compensation for injurious affection does not need to be

based on unlawful use.

28. Lord Watson, speaking in the same case, could find no substantial distinction between the facts of the case before the House and

those in the Duke of Buccleuch case. He stated very clearly that:

“The prospective use, in respect of which compensation has been given, is confined to that portion of the appellant’s land

which the respondents have acquired from him for statutory purposes………”

29. Lord Halsbury L.C thought it to be conclusively established that “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, than such damage may be an injurious effecting of

the proprietors other lands, though it would not be an injurious effecting of the lands of neighbouring proprietors from whom nothing

has been taken for the purpose of the intended works.” (see page 161) He, likewise, considered the proposition to have been

established by the Duke of Buccleuch case.

30. These decisions were followed by the Court of Appeal in England in Horton v. Colwyn Bay and Colwyn Urban District Council

[1908] 1 K.B. 327. Members of the Court traced the principle back to the Stockport case. The Privy Council applied it to Canadian

legislation in Sisters of Charity of Rockingham v. the King [1922] 2 AC 315.

31. It seems to me beyond doubt that there was compelling authority to support the decision in Edwards. Harman L.J. referred to a

“generally received view” of the matter and noted that the then current edition of the leading text book, Cripps on Compulsory

Acquisition contained the statement that it had “been held subsequently following these cases that no compensation is payable in

respect of what is done on lands other than those taken from the claimant,” and referred to "the principle expressed in earlier cases

that as the acts of user, the contemplation of which caused depreciation, would be done on lands not the property of the claimant,

the claimant was not entitled to compensation under this head.” In any event, the Court of Appeal was unanimously of the view that

theses statements were supported by the authorities, most of which I have cited above.

32. For the purposes of its application in this jurisdiction, it suffices to state that the principle had been established in a consistent

body of cases in 1922. Where a statutory provision has been the subject of consistent interpretation for a very long time, it would

require strong reason to depart from it. I am not, in any event, convinced that the plain meaning of the words of section 63 leads

ineluctably to the conclusion that compensation is payable for injurious affection caused by works carried out on lands other than

those acquired. The expression, the exercise of the powers of this or the special act, may plausibly be interpreted as referring only to

such powers as affect the claimant or his lands.

33. I turn then to consider the decision of the High Court of Australia in Marshall, upon which the appellants rest their case. The case

certainly raised squarely the issue whether compensation for injurious affection …………is restricted to compensation for the impact of

the work done on the actual land taken…” (majority judgment delivered by Gleeson CJ at page 606). It did so, however, in the

context of a section of the relevant Australian legislation. Some part of a large holding was acquired from the appellant for the

purpose of road widening. The work caused flooding on his lands due to alteration of the drainage system, but no part of the widened

highway or the consequently altered drainage system was on the “resumed land.” The landowner failed in respect of his injurious

affection claim at all levels up to the Court of Appeal of Queensland. The latter court followed “the existing authorities on this

subject, including Edwards v Minister for Transport…” (see page 613). Section 20(1)(b) of the (Australian) Acquisition of Land Act,

1967 allowed for compensation for damage caused by “the exercise of any statutory powers by the constructing authority otherwise

injuriously affecting land.” The majority judgment considered that the language of this provision “could hardly be plainer.” They also

found the reasoning in Edwards to be “unconvincing.” (see page 622). The judgment noted that Harman L.J. had described injurious

affection as “a piece of jargon,” and criticised this “disparaging language.” It continued:

“The use of this common expression serves well to distinguish the statutory right from the common law claim in nuisance.

It is unnecessary, and it would be unprofitable in these reasons to examine his Lordship’s reasons and his analysis of

earlier cases to ascertain why the apparently unambiguous language of s. 63 of the 1845 Act was given the meaning

which his lordship and others have attributed to it”

34. Thus, the Court did not, by reason of the use of the description, “jargon” consider the earlier English decisions upon which

Edwards was based. McHugh J, in a separate judgment, considered the earlier English decisions, but under the heading: “The English

decisions are not applicable to s 20(1)(b),” he stated that the language of section 20(1)(b) was “too clear to read it down by

reference to the English cases that were decided on legislative provisions, such as s 63 of the [act of 1845], in similar but not

identical terms to s. 20.”

35. The High Court was undoubtedly influenced strongly by the clear language of the Australian statute. It is true that the Court also

criticised Edwards. However, I cannot regard Marshall as an authority on the interpretation of section 63. The court was concerned

with a provision of Australian legislation, expressed in significantly different terms. Insofar as it might be considered necessary to

distinguish Marshall, the differing statutory provisions would provide ample ground for doing so. The majority judgment did not, in

reality, give any consideration to the long line of English authority reviewed in Edwards.

36. Finally, I must address the reliance by the appellants on the constitutional right to the ownership and enjoyment of property as

mandating an interpretation of section 63 to the effect claimed. Accepting that section 63, having been applied by a post-

Constitution statute, should be construed so as to be consistent with the Constitution, it is necessary to consider whether the

traditional interpretation could, in fact, give rise to a possible infringement of any constitutional right of the appellants. It is common

case that the appellants are entitled under the section to be compensated for the value of the property taken, for the effects (if

any) of severance and for injurious affection of their retained lands by anticipated use by the Council of the lands acquired from

them. It is also common case that, if no land had been taken, there would have been no right to compensation for the damage,

inconvenience or loss of amenity caused by the future operation of the motorway. No neighbour of the appellants has any such right,

unless land is taken and used for that purpose. The appellants’ claim is premised on the proposition that the acquisition has affected

or will adversely affect some property right, which is entitled to constitutional protection. What is at stake is the non-tortious effect

of activities on land not taken. The injurious affection here in contemplation is the alleged damaging effects to the retained lands of

acts which would not give rise to any cause of action at law, particularly the law of nuisance, and does not entail any injury to any

existing property right. I find it impossible to discern any unfairness or injustice in this scheme of compensation which could give rise

to any issue as to whether, to use the language of Article 40, section 3, sub-section 2 of the Constitution, there was an “unjust

attack” on property rights. It follows, as a corollary, that the claimants’ right to sue the Council or any other user either of the land

taken or any other lands is undisturbed.

37. For all these reasons, I would not depart from the consistent interpretation applied to section 63 ever since the Stockport

decision.

38. I have already made it sufficiently clear that I believe the learned judge erred in holding that compensation for injurious affection

is limited to what should be recovered for what would otherwise be unlawful acts. It is a constant theme of the authorities that such

compensation for damage to land taken (not for purely personal suffering or discomfort) is payable in respect of damage, where the

acts of the acquiring authority are entirely lawful. The implication of holding otherwise would be that the compulsory acquisition

authorises, in perpetuity, the commission of nuisance on the land acquired. The rationale, originally declared by Crompton J in the

Stockport case is that, were it not for the passing of the enabling legislation (here the approval of the scheme), the landowner would,

as an incident of his ownership of the lands acquired from him, be entitled to prevent that land, even upon selling it, from being used

for the purpose which that statute authorises. That purpose does not need to be otherwise unlawful. The value of the cotton mill in

the Stockport case was reduced by the fact that it would be more costly to insure by reason of its proximity of the railway to be

constructed on the acquired lands.

39. I would dismiss the appeal and affirm the order of the High Court.