Court dismisses appeal confirming compensation limited to taken land, rejecting windfall claims for off-site activities.

THE SUPREME COURT

Murray CJ.

Fennelly J.

Kearns J.

Macken J.

Finnegan J.

[407/2003]

IN THE MATTER OF THE ACQUISITION 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 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 on the 6th day of November, 2007, by Kearns J.

Ultimately the decision of the Court of Appeal in Edwards v Minister of Transport [1964] 2 Q.B. 134 is a simple one, the court opting decisively for a view of

injurious affection whereby compensation is limited to so much of the damage as is attributable to activities carried out on lands taken from the claimant

and where there is excluded from the ambit of recovery any compensation for activities on lands which were never his. The effect of Edwards is thus that the

claimant does not obtain some windfall benefit over and above what he is entitled to receive in compensation but is treated in the same way in respect of

entitlements in respect of activities on off-site lands as his neighbour from whom nothing is taken.

In the course of his judgment in Edwards, Harman L.J. comprehensively reviewed all the authorities before concluding that this view of injurious affection,

which had been confirmed by Lord Parmoor in Sisters of Charity of Rockingham v The King [1922] 2 A.C. 315, was the proper one. This was a Privy

Council case, but Harman L.J. noted that Lord Parmoor was ‘a great authority on this subject’ and for that reason alone felt the decision to be one “of great

persuasive weight”. He noted Lord Parmoor’s emphasis on the fact that:-

“Compensation claims are statutory and depend on statutory provisions. No owner of lands expropriated by statute for public purposes is

entitled to compensation, either for the value of the land taken, or for damage, on the ground that his land is ‘injuriously affected,’ unless he

can establish a statutory right. The claim, therefore, of the appellants, if any, must be found in a (Canadian) statute.”

Thus one cornerstone of Edwards is that there must be clear statutory authority underpinning any claim for compensation. The decision of Harman L.J. also

had regard to and took into account the ‘veto principle’, that is to say that a claimant should not, in the context of a claim under s.63, recover the kind of

ransom value which a person who enjoys a power of veto over a promoting authority might otherwise exact. This strikes me as eminently sensible and I

would require some fairly powerful reasons to think otherwise.

I find somewhat unsatisfactory the decision to the opposite effect with regard to the quantification of compensation for injurious affection arrived at by the

Australian High Court in Marshall v Director General [205 CLR 603]. This authority forms the central pillar of support for the claimants’ case but

unfortunately the Australian High Court decision departs from Edwards without setting out any clear or cogent reason for doing so. I would hasten to

acknowledge that the wording of the Australian statute is different from s. 63 in that it contemplates the payment of compensation for damage caused by

“the exercise of any statutory powers”, although in my view the source of the particular powers is quite a separate consideration from one which seeks to

determine precisely what lands are to be taken into account when determining compensation for compulsory acquisition. Nonetheless there are hints in

Marshall that the cases can be distinguished for this reason.

The decision of the High Court of Australia in Marshall overturned decisions previously made in the same proceedings by both the Land Court, the Land

Appeal Court and the Supreme Court of Queensland.

The judgment of Gleeson C.J. contains a curious attack on the reasoning of Harman L.J. in Edwards. This is to be found in a passage which implies that

the latter by resorting to‘disparaging’ language to describe ‘injurious affection’ (Harman L.J. had referred to the term ‘injurious affection’ as ‘a piece of

jargon’) had thereby relieved the High Court from any obligation to examine in any detail his analysis of the earlier cases. In fact Harman L.J. had done no

more than use this expression as part of his introductory comments at the outset of his judgment and it formed no part of the ratio in the case.

In his judgment in the same case McHugh J. seems to have felt that Edwards should not be followed on the basis that the courts of Queensland should not

“slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation” but equally his judgment fails to

identify the supposed failure in Edwards, other than to express the view, as did his colleague Gaudron J., that legislative provisions are to be accorded their

natural and ordinary meaning, and, given that the right to compensation for injurious affection following upon the resumption of land is an important right,

that right should not be subject to limitations or qualifications which are not to be found in the terms of the statute.

I do not see the interpretation favoured in Edwards as one which interprets a statute in a manner which denies or limits property rights. Rather I see it as a

case which underlines the principle that to recover compensation under a statute one must be able to point to clear terminology which so provides, as

otherwise a notable mischief could arise as, for example, between a neighbour who has a tiny sliver of land taken by a promoting authority and another who

does not, in respect of activities carried out on lands which were never in the ownership of either neighbour. The claimant to my way of thinking never had

property rights in the off-site lands. To interpret the statute in a manner which confers a windfall bonus of unknown dimensions on a claimant in respect of

activities on such off-site lands would, in my view, require the clearest statutory elaboration if that had been the intention of the legislature. It is to my way

of thinking inherently unlikely in the extreme that any such outcome was ever contemplated.

O’Neill J. in his judgment in the High Court herein emphasised, without deciding any issue as to the constitutionality validity of the section, that an

application of constitutional principles to the interpretation of s. 63 would not led him to any other conclusion, stating as follows at p. 31:-

“I am of the view however that the rule limiting compensation as aforesaid is consistent with article 40.1 of the Constitution and indeed were

section 63 to be interpreted as permitting the recovery of the entire depreciation of the claimants’ property because of the motorway scheme,

that would be an infringement of the guarantee of equality before the law contained in that article, in the sense that neighbours of the

claimants who could be affected in exactly the same way by the motorway scheme or indeed perhaps even worse, would have no right to have

any compensation if no land of theirs was taken and would have to suffer any diminution in the value of their properties without compensation.

There would in my view be a manifest and unjustifiable inequality in the treatment of those persons vis a vis the claimants if section 63 were

to be interpreted in the manner contended for by the claimants.”

I find this reasoning impeccable. It is a good reason to interpret the statute in a way which does not lead to absurd or mischievous outcomes which, of

course, is an approach long recognised as a basic rule of statutory interpretation.

I would dismiss the appeal and confirm the order of the learned High Court judge.