Moto Hospitality Ltd v Highways Agency [2006] EWLands LCA_122_2005 (28 July 2006)	LCA/122/2005

	LANDS TRIBUNAL ACT 1949
	
	COMPENSATION – injurious affection – Compulsory Purchase Act 1965 s 10 – preliminary issue – motorway service area – junction alterations affecting trade – whether damage suffered as result of “works” – whether particular damage suffered – held claim for compensation may lie

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN	MOTO HOSPITALITY LIMITED	Claimant
	and
	HIGHWAYS AGENCY	Compensating
		Authority

	Re:	Cherwell Valley Motorway Service Area, 
	Land contained in Title ON168729 located 
	adjacent to Junction 10 of the M40 motorway.

	Before: The President

	Sitting at Procession House, 110 New Bridge Street, London EC4V 6JL
	On 1, 2, 3 March; 21 April 2006

Craig Howell Williams and Richard Honey instructed by DLA Piper Rudnick Gray Cary UK LLP, solicitors of Birmingham, for the claimant.
David Holgate QC, Tim Mould and Zoë Leventhal instructed by the Treasury Solicitor for the compensating authority.

The following cases are referred to in this decision:

Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1
Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243
Wagstaff v Department of the Environment, Transport and the Regions [1999] 2 EGLR 108
Wakefield and District Light Railways co v Wakefield Corporation [1906] 2 KB 140
Rathbow v Bundock [1962] 2 QB 260
Allen v Gulf Oil Refining Ltd [1981] AC 1001
Jolliffe v Exeter Corporation [1967] 1 WLR 993
Argyle Motors (Birkenhead) Ltd v Birkenhead Corpn [1975] AC 99
Clift v Welsh Office [1998] 4 All ER 852
Westminster City Council v Ocean Leisure Ltd [2004] RVR 219
Benjamin v Storr (1874) LR 9 CP 400
Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas 259
Beckett v Midland Railway Co (1867) LR 3 CP 82
Iveson v Moore (1699) 1 Ld Raym 486
Chamberlain v West End of London & Crystal Palace Railway Co (1862) 2 B & S 605

The following further cases were cited in argument:

Fritz v Hobson (1880) 14 Ch D 542
Lingke v Christchurch Corpn [1912] 3 KB 595
Blundy, Clark and Co Ltd v London and North Eastern Railway Co [1931] 2 KB 334
Jacob v London County Council [1950] AC 361
Flanagan v Stoke-on-Trent City Council [1982] JPL 520
Cambridge Water Co v Eastern Counties Leisure Plc [1994] 2 AC 264
Horn v Sunderland Corpn [1941] 2 KB 26
Kirby v Harrogate School Board [1896] 1 Ch 437
North Tyneside Metropolitan Borough Council v Allsop [1991] RVR 209; [1992] RVR 104
Vasilou v Secretary of State for Transport [1991] 2 All ER 77
R (Batchelor Enterprises Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWCA Civ 1293 

DECISION ON A PRELIMINARY ISSUE
Introduction
1.	The claimant in this reference has since 1994 been operating a motorway service area, the Cherwell Valley Motorway Service Area at junction 10 on the M40 in Oxfordshire, the Ardley interchange.  It claims to have been adversely affected by junction alterations carried out by the compensating authority during 2001 and 2002, and it seeks compensation under section 10 of the Compulsory Purchase Act 1965 for the diminution in value of its interest in the land.  The claim for compensation was stated in the notice of reference to be for £15.5m.  The compensating authority denies that, if the claimant’s interest has been depreciated, there is any entitlement to compensation, and on 20 September 2005 I ordered that the following should be determined as a preliminary issue:
“Whether, if the claimant has suffered loss through the diminution in value of its leasehold interest in the premises due to the carrying out of the works, it is entitled to compensation under section 10 of the Compulsory Purchase Act 1965.”
2.	The claimant occupies the principal part of the MSA under a sub-lease dated 9 June 1994 from Esso Petroleum Co Ltd, and it occupies the petrol filling station under a licence from Esso.  Mr Craig Howell Williams accepted on behalf of the claimant that no claim could lie in respect of the petrol filling station because the claimant’s interest was not an interest in land.
The junction and the MSA
3.	The Ardley interchange forms the junction between the M40, which runs roughly north-south at this point, the A43 to the east and the B430 to the west.  It is shown on the drawing appended to this decision.  Before the alterations the interchange consisted of two roundabouts, one on either side of the motorway, linked by a single carriageway.  The eastern roundabout was linked to the A43, then a single carriageway road, and to the off- and on-slip roads serving the southbound carriageway of the motorway.  The western roundabout was linked to the B430 and to the off- and on-slip roads serving the northbound carriageway.  The MSA was situated to the south-east, between the A43 and the southbound on-slip road.  It was linked to the roundabout by a short length of dual carriageway and to the southbound on-slip road by a short connecting road. 
4.	The junction alterations arose from the dualling of the A43 between Towcester and the M40.  On the east side of the motorway a new junction, the new Padbury roundabout, was constructed about 300 metres along the A43 from the eastern (Cherwell) roundabout.  The Cherwell roundabout remained, although it was slightly altered in configuration.  The southbound off-slip road from the motorway was closed and a new off-slip road was constructed to join the new Padbury roundabout, diverging from the motorway, therefore, more greatly than the slip road it replaced.  A new on-slip road was constructed from the Padbury roundabout, curving east and south to join the motorway.  The carriageway linking the Cherwell roundabout to the MSA remained.  The existing southbound on-slip road was severed at the roundabout, but the rest of it remained as the southbound on-slip road from the MSA.
5.	To the west of the motorway the western roundabout was removed and so were the northbound off- and on-slip roads from the motorway.  A new roundabout, the new Ardley roundabout, was constructed on the B430 further to the west, and new slip roads linking to this were constructed.  The road between the Padbury and Cherwell roundabouts and between the Cherwell and Ardley roundabouts was constructed as dual carriageway, and the whole of this, up to the Ardley roundabout, became part of the A43 trunk road.
The orders 
6.	In order to enable the works of alteration to be carried out the Secretary of State made a number of orders pursuant to his powers under the Highways Act 1980.  They were as follows:
(a)	The A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange Side Roads) Order 2000.  This was expressed to be made under sections 14 and 125 of the Highways Act 1980 and all other enabling powers.  It authorised the improvement of the B430 west of Ardley Interchange; the stopping-up of the on- and off-slip roads to the northbound and southbound carriageways of the M40; the stopping-up of three footpaths and two private means of access; the construction of a new footpath; and the provision of a new private means of access.  This is referred to as “the Side Roads Order”.  (There was another Side Roads Order, as referred to in paragraph 7 below, but it has no bearing on the claim.) 
(b)	The A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange Slip Roads) Order 2000.  This was expressed to be made under sections 10 and 41 of the 1980 Act and all other enabling powers.  It provided that the new on- and off-slip roads that the Secretary of State proposed to construct were to become trunk roads. 
(c)	The A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange) Compulsory Purchase Order (PS No.14) 2000.  This was expressed to be made under sections 239, 240 and 246 of the Highways Act 1980, section 2 of the Acquisition of Land Act 1981 and all other enabling powers.  It authorised the Secretary of State to purchase compulsorily certain parcels of land for purposes that were stated to be as follows:
“(a)	the construction of the new trunk roads at Ardley in the Parishes of Ardley and Stoke Lyne, in the District of Cherwell in the County of Oxfordshire, in pursuance of the Trunk Road Orders;
(b)	the construction and improvement of highways and the provision of new means of access to premises at Ardley in the Parish of Ardley in the County of Oxfordshire, in pursuance of the Side Roads Order;
(c)	the improvement of the Trunk Road at Ardley;
(d)	use by the Secretary of State in connection with such construction and improvement of highways;
(e)	the mitigation of adverse effects which the existence or use of the highways proposed to be constructed or improved will have on their surroundings.”
7.	In addition to these orders the Secretary of State also made three further orders.  The A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange) Order 2000, made under sections 10 and 41 of the 1980 Act, and the A43 Trunk Road (M40 To B4031 Improvement – Ardley Interchange) (Trunking) Order 2000, made under section 10, provided that the A43 between the Padbury and Ardley roundabouts should become a trunk road.  The A43 Trunk Road (M40/Ardley Interchange to B4031 Improvement) Side Roads Order 2000, made under sections 12, 14 and 125, contained provisions relating to a bridleway and certain unclassified roads.
8.	It is to be noted that the new southbound and northbound off-slip roads were each constructed across the old off-slip roads and that one of the new footpaths was constructed across the old northbound on-slip road, but no works of new construction affected the southbound on-slip road.  Each of the new slip roads was constructed partly on land that was included in the CPO, but the old slip roads were not part of the CPO land.  Where they went across the old slip-roads, therefore, the new slip roads were not on CPO land.  The new footpath, however, where it crossed the old northbound slip road was on CPO land.
9.	It is also to be noted that none of the orders contained any provision authorising the Secretary of State to construct the new lengths of highway that would, under the Trunk Roads Orders, become trunk roads.  The reason for that is that section 24 of the Act confers a general power on the Secretary of State to construct new highways.
Statutory right to compensation
10.	Compensation is payable under section 10 of the 1965 Act in particular circumstances where, as the result of works carried out following the compulsory acquisition of land, injurious affection has been suffered by land that has not been acquired.  The section is stated to afford the same rights of compensation as existed under Section 68 of the Lands Clauses Consolidation Act 1845.  The circumstances in which compensation was payable under section 68 were established in a series of 19th century decisions, and they were recently reiterated by Lord Hoffman in Wildtree Hotels Ltd v Harrow London Borough Council [2001] 2 AC 1.  These section 68 rules (or McCarthy rules as they became known, with reference to the House of Lords decision in Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243) may be shortly expressed for present purposes as follows.  Firstly, the injurious affection must be the consequence of the lawful exercise of statutory powers.  Secondly, the injurious affection must be such that, if not done under statutory authority, would have given rise to a cause of action.  Thirdly, compensation is payable only for damage to the claimant’s land or interest in land.  Fourthly, compensation is payable in respect of only the execution of works and not their use.
The claim
11.	The claimant’s case is advanced on the basis of both temporary and permanent loss.  In relation to temporary loss the statement of case said at paragraph 17: “The Works commenced in or around February 2001 and were completed in or around September 2002.  The execution of the Works generally during this period caused disruption to the operation of the CVMSA, and in particular the ability of vehicles readily or conveniently to access the CVSMA from the Ardley Interchange.”  The particular obstructions were not identified.  The statement of case went on to aver that the execution of the works interfered with the passage of vehicles and thus constituted a nuisance and that the claimant had suffered special damage.
12.	In relation to permanent loss the statement of case at paragraph 24 said: “The execution of the Works involved obstructions of existing public highways at the Ardley Interchange by blocking of the highways and removal of the carriageways, including the following locations:…” and it specified the southbound off- and on-slip roads and the northbound off-slip road.  It said at paragraph 31 that as a result of these obstructions the CVMSA was less accessible and/or convenient for, and attractive to, customers using the Ardley Interchange.  It specified two particular routes to and from the MSA that were affected.  In the expert reports lodged on behalf of the claimant five further routes to and from the MSA are referred to.  The relevant distances to and from the MSA from common points on the A43, the B430, the M40 northbound and the M40 southbound are agreed.  Journeys via the MSA from the M40 southbound to respectively the M40 southbound, the A43 and the B430 (three of the journeys referred to) have increased by between 120 and 155 metres; from the M40 northbound to the M40 northbound by 615 metres, to the A43 by 185 metres and to the B430 by 215 metres; and from the A43 to the M40 southbound by 5 metres.  The claimant’s concern about traffic from the A43 to the M40 southbound is not, I think, about the distance but with the fact that it no longer passes the MSA, since it goes from the new Padbury roundabout onto the new southbound slip-road.  Traffic from the M40 southbound has now to negotiate both the Padbury roundabout and the Cherwell roundabout.
The issues
13.	Two principal issues arise in relation to the present claim.  Firstly, section 10 provides for compensation where a person’s “interest in land…has been…injuriously affected by the works”.   It is a matter of dispute what for the purposes of the present case “the works” were.  For the Secretary of State Mr David Holgate QC contended that the loss that the claimant claims to have suffered arose from the stopping-up of the slip roads and that this did not constitute “the works” for the purposes section 10.  Secondly, the cause of action that, it is claimed, would have arisen but for the statutory powers consists in the tort of public nuisance.  Damages are only payable in respect of public nuisance if a claimant has suffered particular damage greater than that suffered by members of the public in general.  Mr Holgate contends that the claimant has not suffered particular damage.
The works and the special Act
14.	Section 1 of the 1965 Act so far as material provides:
“(1)	This Part of this Act shall apply in relation to any compulsory purchase to which Part II of the Acquisition of Land Act 1981, or Schedule 1 to that Act, applies...
(2)	In construing this Part of this Act the enactment under which the purchase is authorised and the compulsory purchase order shall be deemed to be the special Act…
(4)	In this Part of this Act ‘the works’ or ‘the undertaking’ means the works or undertaking, of whatever nature, authorised to be executed by the special Act…”
15.	Section 10 provides as follows:
“(1)	If any person claims compensation in respect of any land, or any interest in land, which has been taken for or injuriously affected by the execution of the works, and for which the acquiring authority have not made satisfaction under the provisions of this Act, or of the special Act, any dispute arising in relation to the compensation shall be referred to and determined by the Lands Tribunal.
(2)	This section shall be construed as affording in all cases a right to compensation for injurious affection to land which is the same as the right which section 68 of the Lands Clauses Consolidation Act 1845 has been construed as affording in cases where the amount claimed exceeds fifty pounds.”
16.	In Wagstaff v Department of the Environment, Transport and the Regions [1999] 2 EGLR 108, which concerned a claim in respect of roadworks that was similar to the present claim, I held that the special Act in relation to the particular project consisted of all the provisions both in the Highways Act itself and in the orders made under it that empowered the carrying out of the project.  Thus it included not only the CPO but also the other orders, including the side roads order that provided for the stopping-up of highways.  Mr Holgate submitted that this conclusion was wrong, and that the special Act consisted simply of the particular sections of the 1980 Act under which the CPO had been made and the CPO itself.  It excluded, therefore, the Side Roads Order, which was the instrument under which the slip roads had been stopped up.  
17.	The stopping-up provisions of the Side Roads Order were made under section 14 of the 1980 Act, which provides as follows:
“(1)	Provision may be made by an order under this section in relation to a trunk road or a classified road, not being, in either case, a special road, for any of the following purposes:-
	(a)	for authorising the highway authority for the road –
(i)	to stop up, divert, improve, raise, lower or otherwise alter a highway that crosses or enters the route of the road or is or will be otherwise affected by the construction or improvement of the road;
(ii)	to construct a new highway for purposes concerned with any such alteration as aforesaid or for any other purpose connected with the road or its construction, and to close after such period as may be specified in the order any new highway so constructed for temporary purposes.”
18.	It is clear that “enactment” is capable of a narrow meaning (for example, a particular provision in a statute:  see Wakefield and District Light Railways co v Wakefield Corporation [1906] 2 KB 140) or a wide meaning (for example, a statute and statutory instruments made under it: see Rathbow v Bundock [1962] 2 QB 260).  What it means in a particular context is a matter of construction.  Here the CPO was stated to be made under sections 239 and 240 (“Acquisition of land for construction, improvement etc of highway”) and 246 (“Acquisition of land for mitigating adverse effects of constructing or improving highway”) of the Highways Act 1980 “and under section 2 of the Acquisition of Land Act 1981, and of all other enabling powers.”  The case for treating as “the enactment under which the purchase is authorised” the particular provisions that empowered the making of the CPO is simply stated: it is under these provisions, and not under any other provisions in the Act itself or in any order made under it, that the purchase is authorised.  Moreover it is the enactment under which the purchase is authorised “and the compulsory purchase order” that together constitute the special Act, and the fact that the CPO is referred to might seem to suggest that any other orders did not form part of the special Act.  However, the reasons for giving “enactment” a wide rather than a narrow meaning are, in my judgment, strong.
19.	There are two reasons against the narrow meaning.  The first is that section 10 gives an entitlement to compensation for injurious affection arising from the execution of “the works”; that section 1(4) provides that “the works” means the works authorised to be executed by the special Act; and that the sections in the Highways Act giving power to acquire land compulsorily do not authorise the execution of works.  The power to execute works arises under other provisions of the Act and orders made under them and not under the CPO or the sections that empower it.  
20.	Mr Holgate submitted that the power to carry out the works for the purpose of which a CPO has been made is to be implied in the statute authorising the acquisition.  He referred to Allen v Gulf Oil Refining Ltd [1981] AC 1001, in which the House of Lords held that land acquired compulsorily for an oil refinery could be used as an oil refinery notwithstanding that there was no express statutory provision to that effect.  That case, however, turned on the particular provisions of the Gulf Oil Refining Act 1965, section 5(1) of which provided that the company could take land “for the construction of a refinery”.  It was the absence of any specific provision in the Act empowering the land acquired to be used as a refinery that led to the conclusion that such a power was to be implied.  Here other sections of the 1980 Act authorise, or provide for the authorisation of, the carrying out of the works, so that there is no need to imply such authority in the sections that provide for the compulsory acquisition of land.  
21.	The second reason against giving a narrow meaning to “enactment” lies in the function of section 10.  It is (see subsection (2)) to afford “in all cases a right to compensation for injurious affection which is the same as the right which section 68 of the Lands Clauses Consolidation Act 1845 has been construed as affording”.  The entitlement under that provision was to compensation for works carried out under the special Act.  Section 2 of the 1845 Act defined “the special Act” in this way:
“The expression ‘the special Act’, used in this Act, shall be construed to mean any Act which shall hereby be passed which shall authorize the taking of Lands for the Undertaking to which the same relates, and with which this Act shall be so incorporated as aforesaid…
…and the Expression ‘the Works’ or ‘the Undertaking’ shall mean the Works or Undertaking, of whatever Nature, which shall by the special Act be authorized to be executed.”
22.	Thus “the special Act” did not consist only of the particular provisions that authorised the taking of lands for the undertaking.  It was the whole Act, including the provisions in it that authorised the execution of the works.  Compensation under section 68 was not limited to injurious affection caused by the carrying out of works on land that the special Act had authorised to be acquired.  To construe “the special Act” for the purpose of the 1965 Act as confined to the powers conferring the right to acquire land compulsorily would, or could, restrict the right to compensation to a narrower range of circumstances than under the 1845 Act, and this would be inconsistent with section 10(2).  It is therefore necessary, in my judgment, to give to “the enactment under which the purchase is authorised” a meaning that will result in the same entitlement to compensation for injurious affection as would have resulted from an Act that authorised the taking of lands and the execution of works for purposes of a particular project and which incorporated the Lands Clauses Act.       
23.	The special Act is defined in section 1(2) as consisting of not only the enactment under which the purchase is authorised but the CPO as well.  The reason for this, it seems to me, is in order to identify the undertaking and the works carried out for the purposes of the undertaking.  It is those works that give rise to a claim for compensation if they cause injurious affection.  In the present case the CPO, the A43 Trunk road (M40 to B4031 Improvement – Ardley Interchange) CPO, was stated in article 1(2) (see paragraph 6 above) to be made for the purpose of “the construction of the new trunk roads…in pursuance of the Trunk Road Orders”, “the construction and improvement of highways…in pursuance of the Side Roads Order” and for other associated purposes.  Thus the works for the purposes of which the CPO was made consisted of the entirety of the works of highway construction and improvement that were to be carried out at the Ardley interchange.  They were not confined to the parts of the works to be carried out on the land acquired under the CPO.  It is the entirety of the works, therefore, that in my judgment constitute “the works” for the purposes of section 10, and it is the entirety of the statutory provisions enabling such works to be carried out that constitutes the enactment.
24.	Mr Holgate submitted that the Tribunal was bound by the Court of Appeal decision in Jolliffe v Exeter Corporation [1967] 1 WLR 993 to hold that the special Act in the present case consisted of no more than the CPO itself and the particular provisions of the Highways Act 1980 under which the CPO was made.  The consequence of this would be that there would be no entitlement to compensation in respect of damage arising out of the stopping-up of the slip roads (because the Side Road Order would not be part of the special Act) or of works on land which had not been the subject of the CPO.
25.	In Jolliffe the plaintiff was the owner of a freehold garage and filling station on Coombe Street, a busy road on the outskirts of Exeter.  The defendant highway authority constructed a new inner ring road which crossed Coombe Street near to the plaintiff’s garage.  The council made a CPO in relation to some of the land acquired for the new road under the Highways Act 1959, but none of the plaintiff’s land was acquired.  Coombe Street was stopped up pursuant to a stopping-up order made by the Minister of Transport under section 49 of the Town and Country Planning Act 1947, and the council constructed the new road across Coombe Street.  The plaintiff’s garage was as a result left at the end of a cul-de-sac and his business was seriously affected.  He sought a declaration that he was entitled to compensation for the loss he had suffered under section 68 of the Lands Clauses Act.  He was successful before Lawton J, who held that the stopping-up of Coombe Street was no more than a step in the execution of the authorised works.  The Court of Appeal allowed the defendant’s appeal.
26.	At 997E-998A Lord Denning MR said this:
“In considering Mr Jolliffe’s claim for compensation, it is necessary to distinguish between the stopping up of the highway (Coombe Street) and the compulsory acquisition of land.
In order to stop up the highway, the Minister of Transport made an order under section 49 of the Town and Country Planning Act, 1957.  It was contained in the Stopping up of Highways (City and County of Exeter) (No.3) Order, 1962 (S.I. 1962 No.1276), and was dated January 6, 1962.  It authorised the stopping up of various streets in Exeter, including this part of Coombe Street.  But it is important to observe that the Act of 1947 contains no provision for compensation.  In this respect the Act is like the old Highways Act, 1835.  The legislature provided for local inquiries and confirmation by quarter sessions.  But no provisions for compensation.  Under that Act the stopping up might ruin a man’s trade, but he could recover no compensation.  So here, the stopping up of Coombe Street may damage Mr Jolliffe’s trade in that street, but he can recover no compensation on that account. 
In order to acquire the land they needed, the corporation of Exeter, as highway authority, made an order under section 214 (1) of the Highways Act, 1959.  They made a compulsory purchase order on May 24, 1960, and it was confirmed by the Minister of Transport on February 27, 1962.  But it is important to notice that none of Mr Jolliffe’s land was acquired.  The corporation already owned most of the land they needed for the new inner by-pass road.  All they needed in the vicinity of Coombe Street were two parcels of land.  These two parcels were shown coloured pink on the plan.  They are near to Mr Jolliffe’s garage but on the opposite side of the street.  They were not part of the street but alongside it.”
27.	Lord Denning then referred to the statutory provisions conferring the right to compensation for injurious affection and he said that they were “very complicated”.  He went on (at 998 C-E):
“Mr Jolliffe is, therefore, entitled to compensation for injurious affection due to the execution of the works.  What are the ‘works’?  The works are the works authorised by the ‘special Act’.  The ‘special Act’ is defined by the Act of 1946 as the ‘enactment under which the purchase is authorised and the compulsory purchase order.’  In this case that is section 214 (1) of the Highways Act, 1959, and the compulsory purchase order.  The works authorised by those provisions are the works on the pink land, and not the works in Coombe Street itself.  The result is this:  If the road works executed on the two parcels of pink land had injuriously affected Mr Jolliffe’s land, he would have been entitled to compensation.  But it is apparent that the works on those two parcels (taken by themselves) did not affect Mr Jolliffe’s land at all.  They were near Coombe Street, but not across it.  So they did not affect the use of Coombe Street.  The thing which affected Mr Jolliffe’s land was the stopping up of highway, for which there is no compensation.”
At 998G he added:
“....The authorised ‘works’ here were only the works on the pink land.  It was not those works which caused the damage to Mr Jolliffe.”
28.	Finally Lord Denning said (at 998H-999B):
“....The stopping of the highway was a separate step altogether.  It was not done in the execution of the authorised works, that is the works on the pink land.  It was done by the Minister under a separate statute.  The injury to Mr Jolliffe would have been just as great if the highway had been stopped up by a barrier without any road works at all.
In my opinion the injury to Mr Jolliffe was done by the stopping up of the highway, for which the statute has not provided compensation.  He must rest content with the advantageous site which has been let to him on the by-pass.  I would allow this appeal, refuse the declaration asked, and enter judgment for the defendant.”
29.	Lord Denning thus held that there was no entitlement to compensation for two reasons: firstly, because the “works” were the works on the CPO land and these had not injured the plaintiff; and, secondly, because what had injured the plaintiff was the stopping-up of Coombe Street and there was no statutory entitlement to compensation for this.
30.	Davies LJ, giving the second judgment, said (at 999C):
“I agree.  The judge obviously saw the difficulty caused by the fact that the stopping up of Coombe Street was done by the order of the Minister under section 49, as it then was, of the Town and Country Planning Act, 1947.”
He then quoted from the judgment, in which the judge had said that that the stopping-up of Coombe Street was no more than a step in the execution of the authorised works, and he went on (at 999F-H):
“I respectfully say that I cannot agree with the judge in this conclusion.  It is a novel doctrine that, if the Minister exercises a power which he can exercise without incurring a liability to pay compensation to anybody, the fact that the exercise of that power is done at the request of a local authority imposes an obligation upon them and places them under a liability to pay compensation.  What was done by the Minister when he made the stopping-up order was done under the power given to him by section 49; and the stopping up could not in any sense be said to be works authorised by the special Act, which was, of course, the compulsory purchase order.  I agree the appeal should be allowed.”
31.	The third judgment was given by Russell LJ, who, having quoted the statement of claim, said (at 1000B):
“....This seems to me really to establish the contention of the corporation that the execution of the works authorised, that is to say, the construction of the highway, did not have any injurious effect on the plaintiff’s property.  The damage was already done.  Coombe Street, before a pick or spade had been laid on the works, had been turned into a cul-de-sac so far as the plaintiff was concerned.”
32.	Neither Davies LJ nor Russell LJ stated express agreement with the first of Lord Denning’s grounds for allowing the appeal, and I do not think that any such agreement is to be implied.  Both the lords justices, in my judgment, considered that the appeal should be allowed because the judge had wrongly treated the stopping-up order made by the Minister as “nothing more than a step in the execution of the authorised works” and capable on that account of giving rise to compensation.  When Davies LJ said that “stopping up could not in any sense be said to be works authorised by the special Act, which was, of course, the compulsory purchase order”, I do not think that he was doing any more than emphasising that the stopping-up was a separate process from the carrying out of the authorised works.  Clearly for this purpose there was no need to identify with precision what the works and the special Act were.  It was sufficient that they did not include the stopping-up or the stopping-up order.  Similarly no significance, it seems to me, should be read into Russell LJ’s reference to “the execution of the works authorised by the compulsory purchase order”.  He was not concerned to establish what it was that authorised the execution of the works.  The basis on which he was deciding the case was clear: the stopping-up, which was what caused the loss, was carried out under a procedure separate from that of the construction of the road, and it did not matter that the stopping-up order would not have been made in the absence of the road proposal.
33.	It follows from this that Lord Denning’s dicta that the special Act consisted of the CPO and the section in the 1959 Act that empowered it and that the authorised works consisted only of the works on the land acquired were obiter; and the same goes for Davies LJ’s statement that the special Act “was, of course, the compulsory purchase order” and Russell LJ’s reference to “the works authorised by the compulsory purchase order”.  Jolliffe thus does not compel the conclusion that compensation is only payable under section 10 in respect of injurious affection arising from the land within the CPO.  It is to be noted that in none of the other leading modern cases on the application of section 68 and section 10 (Argyle Motors (Birkenhead) Ltd v Birkenhead Corpn [1975] AC 99, Clift v Welsh Office [1998] 4 All ER 852, Wildtree Hotels and Westminster City Council v Ocean Leisure Ltd [2004] RVR 219) was it thought necessary to consider whether the works giving rise to the damage had been carried out on land that had been compulsorily acquired.  In Ocean Leisure, however, in the Postscript to his judgment, Carnwath LJ did advert to this matter.  He said (at paragraph 35) in relation to the order authorising the works:
“It was common ground that the relevant provision of the 1999 Order was article 16 (not article 6, mentioned by the Tribunal).  That article provided for the application of Part I of the 1965 Act to ‘the acquisition of land under this order’.  The relevance of that provision is not obvious, since no land in the vicinity appears to have been ‘acquired’ as part of this Order.  However, counsel for the claimant helpfully pointed out that section 1 of the 1965 Act, which introduces Part I, is also apparently limited to acquisition of land, but that has never been held to limit the application of section 10.” 
In my judgment, this observation of counsel, and its acceptance by Carnwath LJ, was not inconsistent with the decision in Jolliffe.
34.	If Mr Holgate were right and compensation under section 10 only lies in respect of works of construction carried out on land within the CPO, the result in relation to the three slip roads affected by works of construction would be as follows.  No compensation could be payable in relation to the southbound off-slip road because, although it had constructed across it the new off-slip road which, immediately adjacent to the old slip road was on CPO land, the land where the new road went across the old slip road was not within the CPO.  The same would go for the northbound off-slip road.  The northbound on-slip road, however, had constructed across it a new length of footpath and this was constructed on CPO land.  Compensation could consequently arise in relation to this.  Such an odd result might be regarded simply as “part of the inscrutable legacy of section 68 of the 1845 Act” (see Carnwath LJ in Ocean Leisure at paragraph 35), but it would be avoided if the special Act and the works are identified in the way that I have concluded is correct.
Stopping-up
35.	It is also the case, in my judgment, that Jolliffe does not compel the conclusion that, if in connection with the works a highway is stopped up, no compensation is payable to the extent that the injurious affection arises from the stopping-up.  In Jolliffe the stopping-up was done under a different Act from the one that empowered the works and the CPO, and the stopping-up order was made by a different authority from the one that made the CPO and from whom compensation was sought.  In the present case by contrast all the Ardley interchange works were carried out under powers contained in the various orders made by the Secretary of State under the 1980 Act and in the Act itself.
36.	Mr Holgate submitted that it was part of the statutory background that the 1980 Act made no provision for the payment of compensation for the effects of a stopping-up order made under section 14.  Instead, section 14(4) provided a procedure for representations against the proposed order and for inquiries (in accordance with Schedule 1 to the Act).  Section 14(6) provided that “No order under this section authorizing the stopping up of a highway shall be made or confirmed by the Minister unless he is satisfied that another reasonably convenient route is available or will be provided before the highway is stopped up”.  (In the present case article 2 of the Side Roads Order states that “The Secretary of State is satisfied – (a) as respects each length of highway the stopping up of which is authorised by this Order, that another reasonably convenient route is available or will be provided before that length is stopped up.”)
37.	Mr Holgate submitted that the statutory power to stop up highways constituted a self-contained substantive and procedural legislative scheme.  The implication of this, as I understood him to put it, was that the “special Act” should be construed so as to exclude the provisions relating to stopping-up and that “the works” should be construed so as to exclude the stoppings-up that were made.  It would be wrong to give a wide meaning to the special Act so that compensation for stopping-up became payable under section 10.  I do not find this argument persuasive.  As I pointed out Wagstaff ([1999] 2 EGLR 108 at 110E) there is similarly no provision in the Act for compensation in respect of the construction of new trunk roads.  Indeed it is the function of section 10 to provide for compensation in circumstances where no other provision for compensation is contained in relation to the damage that has been suffered.  Moreover section 14, so far from treating stopping-up separately, makes provision for authorising the highway authority “to stop up, divert, improve, raise, lower or otherwise alter a highway” (subsection (1)(a)(i)) and “to construct a new highway” for connected purposes (subsection (1)(a)(ii)). 
38.	Nor does it seem to me that there is any necessary inconsistency between a claim under section 10 where a highway has been stopped up and the provisions of section 14(6) of the 1980 Act, which require the Secretary of State to be satisfied, before making a stopping-up order, that another reasonably convenient route is available or will be provided.  “Reasonably convenient” is not the same as “equally convenient”, and it is a matter for the Secretary of State’s judgment (which could only be challenged on Wednesbury grounds) whether an alternative route is indeed reasonably convenient.  There is scope, therefore, for an individual to sustain special damage from an obstruction that would in the absence of statutory powers constitute a public nuisance notwithstanding that a stopping-up order has been made in respect of the highway obstructed.  On the other hand, the requirements of section 14(6) are in practice likely to mean that the number of successful section 10 claims in these circumstances will be limited.
39.	The interaction of the CPO and the other orders and the Secretary of State’s other powers under the 1980 Act are rather complex.  Article 1(2) of the CPO authorised land to be acquired compulsorily for certain specified purposes (see paragraph 6 above).  Only the first two purposes need to be considered.  The first purpose, (a), was the construction of new trunk roads in pursuance of the Trunk Road Orders.  “The Trunk Road Orders” were defined by article 2 to be the A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange) Order 2000, which related to a 107 metre length of new road between the two existing roundabouts on either side of the M40, and the A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange) Slip Roads Order 2000, which related to the four new motorway slip roads.  The power to construct these roads was contained in section 24 of the Act.
40.	The second purpose for which compulsory acquisition was authorised was the construction and improvement of highways and the provision of new means of access to premises in pursuance of the Side Roads Order.  “The Side Roads Order” was defined by article 2 to be the A43 Trunk Road (M40 to B4031 Improvement – Ardley Interchange Side Roads) Order 2000.  The new highway that was authorised to be constructed (under article 1(1)(c) of the Side Roads Order) consisted of two new lengths of public footpath.  The highway to be improved (under article 1(1)(a) of the Side Roads Order) was a short length of the B430 to the west of the new roundabout on the west of the motorway.
41.	The Side Roads Order in article 1(1)(b) authorised the Secretary of State to carry out the works of stopping up the whole of the lengths of the northbound and southbound off-slip roads and the northbound on-slip road and a small part of the southbound on-slip road adjoining the roundabout on the east side of the motorway.  The stopping-up of the slip roads and the carrying out of works for this purpose was not, however, expressed to be one of the purposes for which the CPO was made.  Nevertheless it is to be borne in mind that the new northbound and southbound on-slip roads were constructed across the old off-slip roads, and one of the new lengths of footpath was constructed across the old northbound on-slip road.  These works of construction, which were expressed as CPO purposes, could not have been carried out without the stopping-up of the old slip roads.  The small length of the old southbound on-slip road that was authorised to be stopped up was unaffected by any works of construction.
42.	To stop up a highway pursuant to statutory powers is to extinguish the right of highway.  No physical works are required to bring about this extinguishment.  On the other hand works are in practice required that will physically prevent traffic from entering on the length of road that has been stopped up, and such works are necessarily carried out under statutory powers.  I very much doubt that it is appropriate for the purposes of applying section 10 to distinguish between a length of highway that is stopped up and has a new highway constructed across it and a length of highway that is stopped up with passage being obstructed at both ends.  If in each case what is done is done as part of a project for which powers of compulsory acquisition have been conferred, that, it seems to me, ought to be sufficient to bring section 10 into operation where special damage is suffered.  It is in my judgment the project as a whole – the entirety of the works to the Ardley interchange – that is to be treated as constituting the works for the purposes of section 10, and consequently differences between works carried out under different statutory powers are of no significance, just as it does not matter whether or not the works are carried out on CPO land.  This does, I believe, reflect the approach that has been followed in Clift, Wildtree Hotels and Ocean Leisure.
43.	I conclude, therefore, that the obstruction of each of the four slip roads has the potential to found a claim under section 10.  The second issue now arises – whether the claimant has suffered particular damage from such obstruction.  I now turn to this.
Particular damage
44.	An action for damages for public nuisance can be brought if the claimant can show that he has sustained particular damage or injury other than and beyond the general injury to the public and that such damage is direct and substantial: see Benjamin v Storr (1874) LR 9 CP 400.  Section 68/section 10 provides, as I have said, for compensation where a claim would have lain in public nuisance in the absence of statutory powers authorising the works.  The two leading cases on section 68 compensation for loss of access to the highway system are Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Caledonian Railway Co v Walker’s Trustees (1882) 7 App Cas 259.  In the former case the plaintiff owned premises from which he carried on the business of a supplier of building materials from premises that were 20 feet away from and had access to the Whitefriars Dock, a draw-dock leading to the River Thames.  It was a free and open public dock but it was principally used by persons with nearby premises.  The defendants constructed the Victoria Embankment, thus closing the dock and shutting off access to the river from the plaintiff’s premises.  The House of Lords held that the plaintiff was entitled to compensation.
45.	The principles upon which the case was decided are, I think, most usefully to be found in the speeches of Lord Chelmsford and Lord Penzance.  At 256 Lord Chelmsford said:
“The learned Counsel for the Respondent proposed the following rule as a guide to the decision of each case.  Where by the construction of works authorized by the Legislature there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of, in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, there arises a claim to compensation.  I think the rule as thus stated may be accepted with this necessary qualification, that where the right which the owner of the house is entitled to exercise is one which he possesses in common with the public, there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world.”
46.	At 257 he said:
“The question therefore is, whether the Respondent, as the owner of premises which were in close proximity to the public drawdock, has by its destruction suffered an injury and damage differing in kind from that of the public in general? ....”
47.	Lord Chelmsford then referred to Beckett v Midland Railway Co (1867) LR 3 CP 82, where the company had built an embankment in the highway opposite the plaintiffs’ premises, narrowing the road from 50 to 33 feet, which meant that carriages had to go some distance beyond the gate to the premises before they could turn.  The plaintiff was held entitled to compensation for the diminution in value of his house.  Lord Chelmsford went on (at 259):
“Holding, as I do, Beckett’s Case (2) to have been rightly decided, it appears to me that the present case is scarcely distinguishable from it.  As in Beckett’s Case, the Respondent’s premises abut upon a highway, and his access from his premises to the river Thames, and from the river to his premises, was by means of this highway, which was partly land and partly water.  The Board of Works narrowed the highway by destroying that part of it which consisted of the dock and which was farthest from his premises, and by this narrowing of the highway by the destruction of the dock the Respondent’s premises are stated in the special case to have been permanently damaged and diminished in value.”
48.	Lord Penzance, having at 261 stated the rule that compensation for injurious affection under section 68 depended on whether the damage caused by the works might have been the subject of an action if the works had been done without statutory power, went on at 263 to refer to Iveson v Moore (1699) 1 Ld Raym 486.  In that case the judges of the Exchequer Chamber had held a right of action to exist in public nuisance where “the Plaintiff did necessarily suffer an especial damage more than the rest of the King’s subjects”.  Lord Penzance went on at 263-264:
“The immediate contiguity to a highway, commonly called frontage, is a well known and powerful element in the value of all lands in populous districts.  Where frontage to a high road does not exist, propinquity and easy access to a high road are equally undoubted elements of value in such districts, distinguishing lands which have them from those which have them not.  If, then, the lands of any owner have a special value by reason of their proximity to any particular highway, surely that owner will suffer special damage in respect of those lands beyond that suffered by the general public if the benefits of that proximity are withdrawn by the highway being obstructed.  And if so, the owner of such lands appears to me to fall within the rule under which an action is maintainable, though the right interfered with is a public one. 
It was asked in argument where are the claims to compensation to stop if the rule be so applied?  The answer I think is, that in each case the right to compensation will accrue whenever it can be established to the satisfaction of the jury or arbitrator that a special value attached to the premises in question by reason of their proximity to, or relative position with, the highways obstructed, and that this special value has been permanently destroyed or abridged by the obstruction. 
If this limit be thought a wide one, and the number of claimants under it likely to be numerous, that is only the misfortune of the undertaking, for the limit does not exceed the range of the injury.  On the other hand, all claim for compensation will vanish as, receding from the highway, the case comes into question of lands of which (though their owners may have used the highway and found convenience in so doing) it cannot be predicated and proved that the value of the lands depends on the position relatively to the highway which they occupy.”
49.	The principles of McCarthy were applied by the House of Lords in Walker’s Trustees.  There the respondents had a spinning mill in Glasgow situated between two streets, Canal Street and Victoria Street, that ran eastwards from Eglinton Street, a major road.  The eastern boundary of the premises was formed by Francis Street, which was 90 yards from Eglinton Street.  There were accesses to the premises on both Canal Street and Victoria Street, so that ready access could be gained to Eglinton Street and the main road system.  The appellants constructed a railway along the line of Eglinton Street and a new road, Salkeld Street, which connected with Canal Street and Victoria Street immediately to the east of the railway and crossed the railway further south to connect into Eglinton Street.  As the result of these works the access by Canal Street and Salkeld Street, as compared with the old one by Canal Street and Eglinton Street to a common point, was 1485 feet longer; and the new access to Eglinton Street by Victoria Street and Salkeld Street was 265 feet longer than the old one by Victoria Street.  On each new route there were gradients that were greater than those on the old routes.
50.	The House of Lords upheld the award of compensation to the respondents under the provisions of the Scottish Railways and Lands Clauses Acts, which were regarded as indistinguishable in their effect from section 68.  The principal issue was whether the obstructions to the highway were sufficiently proximate to the respondents’ premises to found a claim.  Lord Selborne LC towards the end of his speech ((1882) 7 App Cas 259 at 284) referred to Beckett, McCarthy and Chamberlain v West End of London & Crystal Palace Railway Co (1862) 2 B & S 605.  He then said:
“It was argued for the appellants that these authorities ought not to be extended to any case of the obstruction of access to private property by a public road, when such obstruction is not immediately ex adverso of the property.  This limitation, however seems to me arbitrary and unreasonable, and not warranted by the facts either of Chamberlain’s (1) or of McCarthy’s Case (2).  A right of access by a public road to particular property must, no doubt, be proximate, and not remote or indefinite, in order to entitle the owner of that property to compensation for the loss of it; and I apprehend it to be clear that it could not be extended in a case like the present to all the streets in Glasgow through which the respondents might from time to time have occasion to pass for purposes connected with any business which they might carry on upon the property in question.  But it is sufficient for the purposes of the present appeal to decide that the respondents’ right of access from their premises to Eglinton Street, at a distance of no more than ninety yards, was direct and proximate, and not indirect or remote.”
51.	Lord Blackburn quoted (at 297 to 298) from the speech of Lord Cairns LC in McCarthy and then said (at 298 to 299):
“I have read this part of the judgment at length from which I think it sufficiently appears, that the judgment did not proceed on the ground that the obstruction to the water highway was opposite to the plaintiff’s premises, but this appears more clearly by a reference to the case at large which shews that the damage was all occasioned by making the embankment across the mouth of the drawdock, more than 400 feet from the plaintiff’s premises and so cutting him off from the Thames.  Probably when that was done, the rest of the drawdock now rendered useless was filled up, though that is not stated in the case, but whether it was filled up or not, the damage to McCarthy’s premises would be the same.”
52.	Further on at 299 Lord Blackburn said: 
“Now I do not dispute that an obstruction to a highway may be so distant from lands, that no one could reasonably find that the lands were appreciably damaged by the obstruction, but I think it unnecessary to try to give a definition of that distance.  It is enough to say that in this case the distance is not too great.” 
53.	Lord Watson rejected the contention of the appellants that to found a claim the works causing the obstruction must be in proximity to and also ex adverso the property alleged to be injuriously affected.  At 304 he said:
“I cannot find a single word in the opinion of the noble and learned Lords who decided McCarthy’s Case (1), or anything in the facts of that case, capable of giving a colour to the appellants’ contention.  In point of fact, the appellants’ works obstructing Canal Street and Victoria Street, are less than 100 yards from the respondents’ property, whereas the works of the Metropolitan Board, by which his access to the Thames was cut off, were upwards of 120 yards distant from, and were in no reasonable sense ex adverso of, Mr McCarthy’s premises.  Probably the dock, which came to within twenty feet of the premises, would be discontinued after it ceased to have communication with the river; but it seems plainly to follow from the judgments delivered in that case, that if McCarthy’s access, instead of being wholly cut off by the river wall which the Board erected, had been made so inconvenient that the value of his premises was in consequence materially lessened, he would still have had a good title to compensation.”
54.	The effect of McCarthy and Walker’s Trustees is that, to found a claim under section 10 where a highway giving access to premises has been obstructed under statutory powers, the obstruction must be proximate to the premises but need not be immediately outside them.  It is the loss of access (in McCarthy to the River Thames) or the interference with access (in Walker’s Trustees to the main road, Eglinton Street, and to the highway system beyond) that constitutes the particular damage.  In McCarthy the obstruction was at the far side of the dock, and in Walker’s Trustees it was at the end of Canal Street and Victoria Street, in each case some distance removed from the subject premises.  Here the obstructions complained of were all local to the subject land, on the motorway interchange on which the claimant’s premises are situated.  In terms of distance, therefore, I do not think that they were incapable of causing particular damage to the claimant.
55.	Mr Holgate’s contention was that access from the MSA to the general highway system was maintained throughout – along the short lengths of access road onto the Cherwell roundabout and onto the southbound on-slip road – so that any obstruction further away could not give rise to particular damage.  I do not accept this.  The question is whether the claimant has suffered damage of a kind or in a way that is different from that suffered by others.  What seems to me to be of crucial significance in this respect is that the claimant’s land is part of a motorway service area, which has been located where it is for the specific purpose of enabling services to be provided to motorists on the motorway, and it is this that gives particular value to the land.  Access to and from the motorway is of particular importance to the claimant’s land for this reason, and it is this that distinguishes the position of the claimant from that of the generality of landowners in the area and other users of the interchange.  If such access is obstructed in a way that causes a diminution in the value of its interest the claimant will have suffered particular damage.
56.	Obstruction of the southbound and northbound off-slip roads and of the northbound on-slip road was accordingly, in my judgment, capable of giving rise to a claim for compensation under section 10.  If by reason of those works the claimant’s interest has been reduced in value, compensation will be payable in respect of the reduction in value.  The obstruction of the short length of the southbound on-slip road, on the other hand, could not give rise to a claim because the obstruction was not on that part of the slip-road that provided access from the MSA to the motorway.  It had the effect of intercepting on the new Padbury roundabout traffic from the A43 to the M40 southbound that would have passed the MSA at the Cherwell roundabout, but it did not affect access from the motorway to the MSA or from the MSA to the motorway.
57.	The claim in this case is for loss suffered both as a result of the permanent works and during construction.  As I have said above, the claimant’s statement of case did not identify the particular obstructions that occurred during the carrying out of the works and which are claimed to have caused disruption.  It is, I think, sufficient for me to say that, for the reasons I have given, any reduction in the value of the land during the period of construction is compensatable provided that it was the result of obstructions to routes of access between the motorway and the MSA.
58.	In terms of the preliminary issue, therefore, I determine, subject to what I have said in paragraphs 56 and 57, that, if the claimant has suffered loss through the diminution in value of its leasehold interest due to the carrying out of the works, it is entitled to compensation under section 10 of the Compulsory Purchase Act 1965.  The parties are now invited to make submissions on costs, and a letter on this accompanies this decision.  The decision will become final when the question of costs has been determined.
Dated 28 July 2006

George Bartlett QC, President