Stynes v Western Power (East Midlands) Plc

Factual and Procedural Background

This reference concerns compensation payable to the Plaintiffs, freehold owners of a property located at 8 Turlands Close, Coventry (the reference property), following the grant of a necessary wayleave to Company B by the Secretary of State for Energy and Climate Change. The wayleave, granted on 13 September 2010 under Schedule 4 of the Electricity Act 1989, authorized Company B to retain an electricity line above the reference property. The dispute centers on whether the Plaintiffs are entitled to compensation for injurious affection not only for the effects of the line over their land but also for the effects of Company B's apparatus, including a pylon located on adjacent land.

The Plaintiffs have owned and lived at the reference property since 1981. A pylon supporting a 132kV electricity line, constructed in 1951, stands approximately 16 meters from the house and encroaches on the airspace above the garden. The Plaintiffs claim that the line and pylon cause nuisance, including bird droppings, noise, and stress related to perceived health risks from electromagnetic fields.

The Plaintiffs served notice requiring removal of the electricity apparatus in July 2009. Company B applied for a necessary wayleave to retain the line, which the Secretary of State granted in September 2010 following an Inspector's report recommending the grant. The Plaintiffs subsequently claimed compensation for injurious affection, which they referred to the Upper Tribunal (Lands Chamber) in November 2011. The parties agreed on compensation amounts depending on the legal outcome: £14,000 if section 44 of the Land Compensation Act 1973 applies, and £4,000 if it does not. The valuation date was agreed as 13 September 2010.

Legal Issues Presented

1. Whether, under paragraph 7 of Schedule 4 to the Electricity Act 1989, the Plaintiffs are entitled to compensation for injurious affection caused by the part of the electricity line passing over their land and also for the effects of Company B's apparatus located on adjacent land by operation of section 44 of the Land Compensation Act 1973 or the principle of equivalence.

Arguments of the Parties

Appellant's Arguments

• The Lands Clauses Consolidation Act 1845 is incorporated into the Electricity Act 1989, including section 63 which governs compensation for injurious affection.
• Section 44 of the Land Compensation Act 1973 applies, extending compensation to cover the whole of the works, not just those situated on the land acquired or taken.
• The grant of the necessary wayleave amounts to a taking of land rights, including airspace, as it interferes with the Plaintiffs' use and enjoyment of their property.
• There is no direct authority on the meaning of "taking" in the 1845 Act, but principles from United States v Causby support that frequent interference with airspace can amount to a taking.
• The distinction between compulsory acquisition under Schedule 3 and wayleaves under Schedule 4 is primarily duration; both involve taking rights inconsistent with the owner's use.
• Compensation should be assessed under section 44 of the 1973 Act and paragraph 7(1) of Schedule 4 to include injurious affection caused by apparatus on adjacent land.
• Previous Tribunal decisions support compensation for visual intrusion, noise, and health concerns related to electricity lines and apparatus.
• The principle of equivalence requires fair compensation for all losses flowing from the grant of the wayleave, including effects from off-site apparatus.
• If section 44 does not apply, the principle of equivalence still supports compensation for the wider effects of the grant.

Appellee's Arguments

• Compensation for effects of off-site apparatus is not payable under the 1989 Act as it would not be "compensation in respect of the grant" under paragraph 7 of Schedule 4.
• The statutory provisions governing compulsory purchase compensation, including section 44 of the 1973 Act, do not apply to compensation for the grant of a necessary wayleave.
• Schedule 3 expressly incorporates the statutory compensation code for compulsory purchase, but Schedule 4 does not, and this distinction has been consistently upheld in Tribunal decisions.
• No land has been acquired or taken under the wayleave; it is a statutory licence or consent, not an interest in land, and does not require registration.
• The grant of a wayleave authorizes what would otherwise be trespass but is not equivalent to a taking of land under section 44 of the 1973 Act.
• The United States Supreme Court decision in Causby is not authority that a necessary wayleave entails a taking of land under UK law, and it has not been followed by the House of Lords in relevant UK cases.
• Section 44 does not apply because the works were already installed in 1951; it applies only to works "to be situated" partly on the land, implying future works.
• The principle of equivalence does not extend compensation beyond what is provided by paragraph 7(1) of Schedule 4; it does not create a separate right to compensation for off-site apparatus.
• Compensation must be confined to loss attributable to the grant of the wayleave itself, excluding effects of apparatus on adjacent land.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Liaqat v Majid [2005] EWHC 1305 (QB)	Recognition that "land" includes airspace rights; concept of "taking" includes rights over airspace.	Supported the argument that airspace rights can be taken under compulsory acquisition provisions.
United States v Causby (1946) 66 S. Ct. 1062	Low altitude flights causing interference with land use can amount to a taking of easement in airspace.	Referenced by Appellant but distinguished by Court; not followed in UK law for wayleaves.
Turris Investments Ltd. v The Central Electricity Generating Board [1981] 1 E.G.L.R. 186	Compensation includes visual intrusion, electromagnetic radiation fears, and noise as injurious affection.	Applied to support compensation for various injurious effects of electricity lines.
Macleod v National Grid Co. [1998] 2 E.G.L.R. 217	Compensation for necessary wayleave assessed under paragraph 7 of Schedule 4, not under compulsory purchase legislation.	Confirmed compensation approach; principle of equivalence applies; no application of section 63 of 1845 Act.
Welford v EDF Energy Networks (LPN) Plc [2006] 3 E.G.L.R. 165; [2007] 2 P. & C.R. 15	Compensation under Schedule 4 assessed on same principles as compulsory acquisition; includes injurious affection and disturbance.	Supported consistent approach to compensation under Schedule 4; Court of Appeal endorsed Tribunal's approach.
Arnold White Estates Limited v National Grid Electricity Transmission Plc [2013] UKUT 5 (LC)	Confirmed approach to compensation under Schedule 4 consistent with Welford; compensation for loss occasioned by grant.	Reinforced Tribunal’s approach to compensation under Schedule 4 as fair and just.
Edwards v Ministry of Transport [1964] 2 Q.B. 134	Compensation for injurious affection limited to injury caused by use of acquired land, not injury from use of other land.	Referenced by parties; Court upheld its continued applicability.
Director of Buildings and Lands v Shun Fung Ironworks Ltd. [1995] 2 A.C. 111	Principle of fair compensation and equivalence in compulsory acquisition compensation.	Supported argument on scope of compensation and principle of equivalence.
Anchor Brewhouse Developments Ltd. v Berkeley House (Docklands Developments) Ltd. [1987] 2 E.G.L.R. 173	Trespass by structures invading airspace; such trespass does not constitute taking of land.	Applied to conclude that wayleave does not amount to taking under section 44 of 1973 Act.
Sovmots Investments Ltd. v The Secretary of State for the Environment [1979] AC 144	Compulsory purchase orders do not imply powers to create new rights unless specifically authorized.	Used to distinguish powers under Schedule 3 and Schedule 4 of the 1989 Act.
Belfast Corporation v O. D. Cars Ltd. [1960] A.C. 490	Restrictions on use of property do not necessarily amount to taking of property.	Referenced to reject analogy to Causby in UK context.
Bocardo SA v Star Energy UK Onshore Ltd. [2011] 1 AC 380	Ownership extends down to strata beneath land; distinguished from airspace rights.	Cited in discussion of property rights and limits of taking.
Horn v Sunderland Corporation [1941] 2 K.B. 26	Principle of equivalence: compensation must be fair and neither more nor less than loss sustained.	Applied as foundational principle for compensation assessment.
Waters v Welsh Development Agency [2004] 1 W.L.R. 1304	Compulsory purchase compensation aims to provide fair financial equivalent for land taken.	Supported principle of equivalence and fair compensation.
Moto Hospitality v Secretary of State for Transport [2007] EWCA Civ 764	Questioned correctness of Edwards decision on injurious affection compensation.	Referenced but no conclusive impact on current case.
Newcastle-under-Lyme Corporation v Woolstanton Ltd. [1947] Ch. 427	Statutory undertakers have exclusive right of occupation but no estate or interest in land.	Supported legal characterization of wayleave as consent, not interest in land.
Kelsen v Imperial Tobacco Co. (of Great Britain and Ireland) Ltd. [1957] 2 Q.B. 334	Trespass by structures invading airspace; confirmed trespass nature of such invasions.	Supported conclusion that wayleave does not amount to taking land.
Graham v K.D. Morris & Sons Pty. Ltd. [1974] Qd.R.1	Confirmed trespass principles for airspace invasion by structures.	Reinforced trespass analysis applicable to wayleave apparatus.

Court's Reasoning and Analysis

The Court began by examining the statutory framework governing the grant of wayleaves under Schedule 4 of the Electricity Act 1989 and the compensation provisions in paragraph 7 of that Schedule. It noted the clear distinction Parliament drew between Schedule 3, which deals with compulsory acquisition of land and rights (including permanent easements), and Schedule 4, which provides for the grant of necessary wayleaves as statutory licences or consents without creating interests in land.

The Court analyzed the nature of a necessary wayleave, concluding it is a statutory consent authorizing occupation and use of land for specified purposes but does not confer any property interest or right in land. This conclusion was supported by statutory language, prior case law, and legal commentary, including the House of Lords decision in Sovmots and the Tribunal's prior decisions.

The Court rejected the Appellants' argument that the grant of the wayleave amounted to a "taking" of land under the Lands Clauses Consolidation Act 1845 and that section 44 of the Land Compensation Act 1973 applied. It held that section 44 applies only where land is acquired or taken for works "to be situated" partly on that land and partly elsewhere. Since the works in question (the electricity line and pylon) were already installed in 1951, the grant of the wayleave related to retention of existing works, not future installation, and thus section 44 did not apply.

The Court also distinguished the US Supreme Court decision in United States v Causby, noting it is not binding UK authority and has not been followed in UK law. It reaffirmed that trespass to airspace by structures does not constitute a taking of land for compensation purposes.

Regarding the principle of equivalence, the Court acknowledged it as a fundamental principle of compensation law but held it does not extend the scope of compensation beyond what is provided by the statutory scheme. Compensation under paragraph 7(1) of Schedule 4 is limited to losses fairly attributable to the grant of the wayleave itself, excluding effects of apparatus on land not subject to the wayleave.

The Court reviewed precedents, including Tribunal decisions in Turris, Macleod, Welford, and Arnold White Estates, which support the approach that compensation under Schedule 4 is assessed on general compensation principles but within the statutory limits of the grant. It concluded that compensation cannot be extended to cover injurious affection caused by apparatus on adjacent land where no rights were acquired.

Finally, the Court found the Appellee's submissions well-founded and determined that the compensation payable is the agreed lower sum of £4,000, reflecting the exclusion of section 44 and limiting compensation to loss attributable to the grant of the wayleave over the reference property.

Holding and Implications

The Court's final decision is to DISPOSE OF the Plaintiffs' claim for compensation under section 44 of the Land Compensation Act 1973 and the principle of equivalence in respect of injurious affection caused by Company B's apparatus on adjacent land.

The Court held that compensation under paragraph 7 of Schedule 4 to the Electricity Act 1989 is confined to "compensation in respect of the grant" of the necessary wayleave over the Plaintiffs' land and does not extend to apparatus on land not subject to the wayleave. Section 44 of the 1973 Act does not apply because the works were pre-existing, and the wayleave does not constitute a taking of land or acquisition of an interest in land.

The direct effect is that the Plaintiffs are entitled to compensation of £4,000 as agreed by the parties. No broader precedent altering the statutory compensation framework was established, reaffirming the distinction between compulsory acquisition under Schedule 3 and wayleaves under Schedule 4 of the Electricity Act 1989.