Waters and others (Appellants) v. Welsh Development Agency (Respondents), (2004)
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Waters and others (Appellants) v. Welsh Development Agency (Respondents), (2004)
HOUSE OF LORDS
SESSION 2003-04[2004] UKHL 19 on appeal from: [2002] EWCA Civ 924OPINIONSOF THE LORDS OF APPEALFOR JUDGMENT IN THE CAUSEWaters and others (Appellants)v.Welsh Development Agency (Respondents)ONTHURSDAY 29 APRIL 2004The Appellate Committee comprised:Lord Nicholls of BirkenheadLord WoolfLord SteynLord Scott of FoscoteLord Brown of Eaton-under-HeywoodHOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEWaters and others (Appellants) v. Welsh Development Agency (Respondents)[2004] UKHL 19LORD NICHOLLS OF BIRKENHEADMy Lords,1. Compulsory purchase of property is an essential tool in a modern democratic society. It facilitates planned and orderly development. Hand in hand with the power to acquire land without the owner's consent is an obligation to pay full and fair compensation. That is axiomatic: Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111, 125.2. Unhappily the law in this country on this important subject is fraught with complexity and obscurity. To understand the present state of the law it is necessary to go back 150 years to the Lands Clauses Consolidation Act 1845. From there a path must be traced, not always easily, through piecemeal development of the law by judicial exposition and statutory provision. Some of the more recent statutory provisions defy ready comprehension. Difficulties and uncertainties abound. One of the most intractable problems concerns the 'Pointe Gourde principle' or, as it is sometimes known, the 'no scheme rule'. On this appeal your Lordships' House has the daunting task of considering the content and application of this principle.3. In the Court of Appeal [2002] EWCA 924, [2003] 4 All ER 384, 414, para 116, Carnwath LJ, a judge with unrivalled expertise in this field, was moved to say at the conclusion of his impressive judgment:'The right to compensation for compulsory acquisition is a basic property right. It is unfortunate that ascertaining the rules upon which compensation is to be assessed can involve such a tortuous journey, through obscure statutes and apparently conflicting case law, as has been necessary in this case. There can be few stronger candidates on the statute book for urgent reform, or simple repeal, than section 6 of and Schedule 1 to the [Land Compensation Act 1961].' 4. I echo Carnwath LJ's views. Meanwhile, until Parliament takes action I suggest your Lordships' House, so far as it may properly do so, should seek to simplify the law, always having in mind that the aim of compensation is to provide a fair financial equivalent for the land taken.The appeal5. This appeal concerns the basis on which compensation should be assessed for the compulsory acquisition of 225 acres of land belonging to the claimants. The land consists of low-lying farm land adjacent to the Severn estuary near Newport, Gwent. 6. The background to the acquisition was the construction of the barrage across the mouth of Cardiff Bay, undertaken pursuant to the Cardiff Bay Barrage Act 1993. The project was under active consideration for many years before then. It received governmental support in November 1985. In 1987 the Cardiff Bay area became an urban development area under the Local Government, Planning and Land Act 1980. The Cardiff Bay Development Corporation was established as an urban development corporation for the purpose of regenerating this development area. The corporation was empowered by the Cardiff Bay Barrage Act 1993 to carry out the barrage works.7. The gestation period of the project was prolonged by problems. There were several abortive attempts to promote a parliamentary Bill. One item of controversy concerned the effect the barrage scheme would have on inter-tidal mudflats in the Taff/Ely estuary designated as a site of special scientific interest. The permanent inundation of Cardiff Bay would destroy these mudflats. The Nature Conservancy Council, succeeded later by the Countryside Council for Wales, vigorously opposed the project from the outset. So did the Royal Society for the Protection of Birds. The proposals would involve an unacceptable loss of nationally important bird habitats. The European Commission also exerted pressure. The new barrage would be incompatible with this country's obligations under E C Council Directives regarding the conservation of wild birds and their habitats. 8. Ultimately work on the barrage started in June 1994. The project proceeded on governmental assurances that compensatory provision would be made by creating suitable new wetland habitats. Several possible sites alongside the Severn estuary were considered and rejected. In January 1996 the Secretary of State for Wales announced the proposal for the Gwent Levels Wetland Reserv...See the full content of this document
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