Wrotham Park Settled Estates v Hertsmere Borough Council

Compensation — Section 10 of the Compulsory Purchase Act 1965 — Breach of restrictive covenant — Whether claimant landowner entitled to compensation relating to financial benefit gained by compensating authority The appellant was the owner of Wrotham Park Estate, an estate extending to 2,400 acres and comprising a number of blocks of land. By a conveyance dated July 1944 the predecessor in title to the estate sold an area of some 51 acres (‘the restricted land’) being formally part of the estate near Elstree, Hertfordshire. The conveyance contained a covenant by the purchaser for the benefit of the owner or owners for the time being of Wrotham Park Estate: ‘Not to develop the said land for building purposes except in strict accordance with the layout plan . . . nor shall any building be erected except in accordance with the plans and elevations to be previously approved by the vendor or his agent . . .’. In July 1976 the respondent council acquired the restricted land. In October 1984, in the exercise of statutory powers to provide housing accommodation, the council started to develop part of the restricted land. No layout plan for the area had been submitted to the claimant or its agent and the development thus started constituted a breach of covenant. On November 13 1986 the claimant claimed compensation in respect of the injurious affection to the Wrotham Park Estate through the breach by the council of the restrictive covenant, the amount claimed was £307,500, calculated as a proportion of the difference in the value of the land developed by the council and its value if developed in accordance with the maximum density the claimants would have permitted if a layout had been submitted to them for approval. Upon the hearing of a preliminary question of law, the Lands Tribunal determined that the measure of compensation payable under section 10 of the Compulsory Purchase Act 1965 should be the diminution in the value of the claimant’s land and not, as contended for by the claimant, the price that the claimant could have exacted for allowing the development for which, under the covenant, it could have properly withheld its consent. In considering the provision in section 10 of the 1965 Act that that section is to 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 had been constructed as affording, the tribunal had concluded that there was no warranty in any of the reported cases under section 68 for an assessment of damages otherwise than by reference to the loss of value of the claimant’s land consequent upon the execution of works by the compensating authority. Held: The appeal was dismissed. Subject to two qualifications, the decision of the President was adopted. The compensation to which a landowner is entitled to is that to which the statute and the cases decided under the statute allow and is not equivalent to the damages which would be assessed if there were no statutory powers authorising the execution of works and damages were being assessed. The two qualifications were that the ratio of Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 may be open to serious question and deserves consideration in a suitable case. Second, Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99 were, contrary to the decision of the President, dealing with the measure as well as the right to compensation The following cases are referred to in this report. Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99; [1974] 2 WLR 71; [1974] 1 All ER 201; (1973) 27 P&CR 122; 72 LGR 147, HL Bracewell v Appleby [1975] Ch 408; [1975] 2 WLR 282; [1975] 1 All ER 993; (1974) 29 P&CR 204; [1974] EGD 190; 237 EG 731, [1976] 1 EGLR 119 Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922; [1986] 2 All ER 888; (1986) 53 P&CR 14; [1986] 2 EGLR 181; 279 EG 1359 Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243; 31 LT 182, HL SJC Construction Co Ltd v Sutton London Borough Council (1975) 29 P&CR 322; [1975] EGD 725; 234 EG 363, [1975] 1 EGLR 105, CA Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278 Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406; [1988] 3 All ER 394; (1988) 87 LGR 129, CA Tito v Waddell (No 2) [1977] Ch 106; [1977] 2 WLR 496; [1977] 3 All ER 129 Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; [1974] 2 All ER 321; (1973) 27 P&CR 296 Wrotham Park Settled Estates v Hertsmere Borough Council (1991) 62 P&CR 652; [1991] 1 EGLR 230; [1991] 21 EG 123 & 22 EG 135; [1991] RVR 107, LT This is an appeal by way of a case stated from the decision of the Lands Tribunal given by the President on March 26 1991 at the hearing of a preliminary question of law arising out of a reference by the appellant, Wrotham Park Settled Estates, to have determined the amount of compensation payable under section 10 of the Compulsory Purchase Act 1965 by the respondents, Hertsmere Borough Council: see [1991] 1 EGLR 230; [1991] 21 EG 123 and 22 EG 135. Matthew Horton QC (instructed by Farrer & Co) appeared for the appellant; John Howell (instructed by Carter Lemon, as agents for the solicitor to Hertsmere Borough Council) represented the respondents. Giving judgment, SIR THOMAS BINGHAM MR said: This appeal is against a decision of the Lands Tribunal given on March 26 1991. The issue in the appeal concerns the measure of compensation payable under section 10 of the Compulsory Purchase Act 1965, which in effect re-enacts section 68 of the Land Clauses (Consolidation) Act 1845. The parties to the appeal are Wrotham Park Settled Estates, a corporate body (to which I shall refer as ‘the landowner’), and Hertsmere Borough Council (to which I shall refer as ‘the local authority’). A question of law was decided as a preliminary issue by the Lands Tribunal on the basis of facts which were agreed, but agreed only for purposes of the issue, and the tribunal stated a case at the16 requestof the landowner, the case being now reported at (1991) 62 P&CR 652*. *Editor’s note: Also reported at [1991] 1 EGLR 230. I take the facts from the case as stated for the decision of the court by Judge Marder QC, who was sitting as the sole member of the Lands Tribunal. The facts found were these: (1)  The claimant is a corporate body and owner of the Wrotham Park Estate. The estate extends to about 2,400 acres and comprises a number of blocks of land. Those parts of the estate closest to the restricted land are shown edged black on the plan attached to this decision. The estate includes a principal mansion house and a number of smaller houses and numerous cottages, together with substantial areas of agricultural land. (2)  By a conveyance dated July 1944 the predecessor in title to the estate sold an area of some 51 acres (‘the restricted land’) being formerly part of the estate near Elstree, Hertfordshire. The restricted land is shown hatched on the plan. The conveyance contains a covenant by the purchaser for the benefit of the owner or owners for the time being of the Wrotham Park Estate: ‘Not to develop the said land for building purposes except in strict accordance with the layout plan to be first submitted to and approved in writing by the vendor or his agent (who shall not unreasonably withhold his consent to any such development) nor shall any building be erected except in accordance with the plans and elevations to be previously approved by the vendor or his agent . . .’ (3)  The Hertsmere Borough Council (‘the council’) acquired the restricted land by virtue of powers conferred upon it by Part V of the Housing Act 1957. The acquisition was completed in July 1976. (4)  In October 1984, in the exercise of statutory powers to provide housing accommodation, the council started to develop part of the restricted land, an area of some 5.5 acres known as H3 (and so marked on the plan). No layout plan for that area had been submitted to the claimant or its agent. The development thus started constituted a breach of covenant, but was not actionable by reason only of the fact that it was carried out by the council in pursuance of its statutory powers. (5)  In Wrotham Park Settled Estates v Maclean Homes (North London) Ltd and Hertsmere Borough Council the claimants sought an injunction restraining the builders from developing site H3 in breach of the covenant. An application for an interlocutory injunction was dismissed by Mervyn Davies J in the Chancery Division of the High Court in February 1985. It is clear from a transcript of the judgment in that case, that although the development was being carried out by the builders under an agreement with the local authority, partly for the purpose of enabling the restrictive covenant to be disregarded, the learned judge refused an interlocutory injunction on the sole ground that the council were in occupation of the land and were carrying out the development in the exercise of their statutory powers under the Housing Act. (6)  On 13th November 1986 the claimants claimed compensation in respect of the injurious affection to the Wrotham Park Estate through breach by the council of the restrictive covenant in developing H3 for building purposes without first having submitted or having approved a layout plan. The compensation claimed was £307,500, calculated as a proportion of the difference in value between site H3 as developed by the council, and its value if developed in accordance with the maximum density the claimants would have permitted if a layout had been submitted to them for approval. It is apparent from that recitation of facts that the Lands Tribunal had before them a plan to which reference is there made. It is not however, in my judgment, necessary to attempt to describe the layout of the estate or to summarise the features of what the plan shows, since it is enough for present purposes to record, as the findings do, that the land in respect of which this application arises is part, and a relatively minor part, of the land which was conveyed to a third party in July 1944, subject to the covenant that I have quoted. It was on those facts that a question was formulated by the parties for the decision of the tribunal and the question was: Whether the basis upon which the claim for compensation in respect of injurious affection of the interest should be assessed is:– (a)  The amount of the difference (if any) between (i)    the value of the interest immediately before the commencement of the development with the benefit of the restrictive covenant (but disregarding the power of an authority to override the restrictive covenant); and (ii)   the value of the interest immediately thereafter given the carrying out of the development; or (b)  The amount (if any and if different from (a)) which could reasonably have been expected to be paid at the time when the development was begun to the owner of the interest for allowing such amount of the development (if any) as was in excess of that which under the restrictive covenant it could not reasonably have withheld its consent to when considering any layout plan submitted to it for approval. That question, as is apparent, is precisely and carefully formulated but, putting the matter rather more simply, the local authority contends that the measure of compensation recoverable under the Act is the diminution in the value of the landowner’s land or his interest therein as a result of his effective loss of the right to enforce the restrictive covenant; and the landowner’s contention is that the measure of compensation includes the price that the landowner could have exacted for allowing the development for which, under the covenant, it could have properly withheld its consent. It is apparent that there is a clear difference between those two measures of damages, the latter enabling the landowner to exact what has been called, perhaps pejoratively, a ransom price, which plays no part in the measure of damage for which the local authority contends. It is convenient to recite at this point the terms of section 10 of the Compulsory Purchase Act 1965, which provides: (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. It is to be noted that that section does not in terms provide a measure of compensation and it is also to be noted that, unusually, the reference is not to what section 68 enacted but to the measure of compensation which section 68 has been construed as affording. For completeness, I should perhaps refer to section 68 of the 1845 Act, which provides: If 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, and for which the promoters of the undertaking shall not have made satisfaction under the provisions of this or of the special Act, or any Act incorporated therewith, such party may have the same settled. The submissions made by the parties respectively are summarised in some detail in the case stated by the member. On behalf of the landowner it was submitted that, as owner of the dominant tenement, the landowner would have a right of action for breach of covenant were it not for the fact that the local authority were executing works under statutory powers. Accordingly, the right to compensation for injurious affection arose. The principles were the same as under section 68 and there was no reason, it was submitted, why the landowner should be any worse off than if the landowner had been in a position to sue for damages in respect of breach of covenant. It was essentially on that basis that counsel then appearing for the landowner submitted that the appropriate basis for the assessment of damages was what the parties would have agreed as the price for relaxation of the covenant. The local authority’s submissions, not surprisingly, took issue with that and it was argued on their behalf to be clear, in the light of well-established principles, that compensation is payable only in respect of either (a) physical damage to the benefited land or (b) the loss of value to the benefited land. Mr Howell (who then, as now, appeared for the local authority) contended that, since there was no claim made in the present case in respect of physical damage, the only claim open to the landowner was the loss of value caused by execution of the works; and that, although naturally somewhat elaborated, was the crux of his submission. 17 The member accepted, and I am reading from the bottom of p8 of the case stated in the form in which we have it, the basic proposition put forward by the local authority that the only right of the landowner was derived from statute and was a right to be compensated to the extent that the landowner’s interest in the benefited lands had been injuriously affected by the execution of the works, that is to say by the building operations carried out on the servient land by the local authority. He went on to conclude, at the top of p9 of the case stated, that the first question to be decided was whether, as the local authority contended, section 68 had been construed as affording a right to claim damages assessed by reference to the diminution of value in the benefited land consequent upon the carrying out of the works or whether, as the landowners contended, the cases in which section 68 had been construed authorised the assessment of damages based on what the landowner would, but for the exercise of statutory powers, have been entitled to receive for relaxation or release of the covenant. That question he considered over a number of pages of his judgment, reviewing a number of authorities and citing from them at some length and culminating in a provisional conclusion on p16 of the case stated, which he put in this way: This examination of the authorities shows that, in reported cases directly arising from claims under section 68 in the last 130 years, it has consistently been held (a) that a claim in respect of injurious affection is sustainable only where the claimant would have a right of action for damages but for the exercise of statutory powers, and (b) that where the claim is sustainable in respect of an interference with the claimant’s rights in his land, the right to compensation has been determined by reference to the loss in value of the claimant’s property. Two of the cases (namely Kirby [1896] 1 Ch 437 and Long Eaton [1902] 2 KB 574) were claims made by owners entitled to the benefit of restrictive covenants over the land on which the works were executed. In neither case was the question of how compensation was to be assessed or calculated directly in issue, but it is to be inferred that the Court of Appeal in the Long Eaton case assumed that it was directly related to the loss of value of the benefited land. In any event, there was no suggestion in either case, or indeed in any of these cases that compensation might be assessed in the manner contended for by the claimants in the present case. He, therefore, concluded at that point: It appears therefore that there is no warrant in any of the reported cases under section 68 of the 1845 Act for an assessment of damages otherwise than by reference to the loss of value of the claimant’s land consequent upon execution of works by the compensating authority. The member then embarked, beginning at p17 of the case stated, on a review of the later cases, which included Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, Bracewell v Appleby [1975] Ch 408*, SJC Construction Co Ltd v Sutton London Borough Council (1975) 29 P&CR 322† , Carr-Saunders v Dick McNeil Associates Ltd [1986] 2 All ER 888‡ , Stockport Metropolitan Borough Council v Alwiyah Developments (1986) 52 P&CR 278 and Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406. *Editor’s note: Also reported at (1974) 237 EG 731, [1976] 1 EGLR 119. † Editor’s note: Also reported at (1975) 234 EG 363, [1975] 1 EGLR 105. ‡ Editor’s note: Also reported at [1986] 2 EGLR 181. After that review the member, on p24 of his case stated, reached this conclusion: This examination of the cases leads me to conclude that there is no rule, and no authority, requiring me to hold that the compensation payable under section 10 of the Compulsory Purchase Act 1965 for injurious affection to the claimants’ land in the circumstances of this case is to be calculated by reference to the amount likely to be receivable by the claimant in free negotiation for relaxation of the covenant. The true rule, in my judgment, is shown by the cases arising under section 68 to be that the claimant is entitled to be compensated either for the actual damage caused to his land, or in an appropriate case, for the loss of value to his land attributable to the works executed on the servient land. That led the member to the conclusion on p26 of the case stated that, where compensation is payable under section 10 in respect of a breach of covenant comprising the execution of works in the exercise of statutory powers authorising those works, that compensation is to be assessed by reference to the diminution in value of the benefited land consequent upon the carrying out of the authorised works on the restricted land. He thus determined the preliminary issue in favour of the local authority and answered the question posed in the application in this way: The basis upon which the claim for compensation in respect of injurious affection of the claimant’s interest should be assessed is the amount of the difference (if any) between (i)    the value of the interest immediately before the commencement of the development with the benefit of the restrictive covenant (but disregarding the power of an authority to override the restrictive covenant); and (ii)   the value of the interest immediately thereafter given the carrying out of the development. The learned member reached that conclusion after a comprehensive review of the authorities on which, subject to two qualifications to which I will come, it seems to me that it would be hard to improve. The learned member’s reasoning is, in my judgment, both sound and persuasive and, subject again to those two qualifications, I find myself in the unusual position of being content to adopt the judgment appealed against as my own. For that reason, I think it unnecessary to go through all the authorities yet again and reproduce a great deal of the work which the learned member has carefully and comprehensively done. I should, however, make reference to the arguments which have been advanced by Mr Horton QC on behalf of the landowner against the decision under appeal. His first major criticism rests on the requirements of justice or, as he has alternatively put it, the merits of the case. This is an argument which he has put in various different ways and I fear I shall not capture them all. One of them was that the local authority bought the land on which the buildings now stand at market value, that is a market value depressed by the restriction on possibility of development imposed by this covenant. Mr Horton urges that it would be unjust if the local authority could now develop the land in excess of what the covenant permitted without recompense to the landowner as the beneficiary of the covenant. He also points out that this is a case concerned with a restrictive covenant. The landowner had the benefit of the restrictive covenant which he was prima facie entitled to enforce, and Mr Horton urges that it would be unjust if that right of enforcement were overridden by statute and the landowner were not put in the same position as he would have been in if the covenant had been effective. To those general arguments based on justice, fairness and the merits of the case there are, as it seems to me, a number of answers. One is that the local authority did not after all buy this land from the landowner and, if it be the case that they made some windfall profit as a result of the purchase, that was not a profit made at the expense of the landowner. Furthermore, it is not of course argued that the landowner is entitled to no compensation at all. The only argument is whether the local authority is bound to compensate the landowner for loss other than the diminution in the value of the landowner’s interest in his remaining land. It also is, in my judgment, relevant that the cases expressly recognise that the statutory compensation may not provide perfect compensation. For example, there is no compensation provided for loss of the profits of a business. And it is perhaps relevant to bear in mind what Viscount Dilhorne said in Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99 at p134, where he observed: It may well be that the execution of the authorised works has inflicted a loss on the appellants which far exceeds the amount of compensation obtainable by them for injurious affection to their interest in the land on which they conduct their business. If that be so, they will suffer a hardship for which the law as it now stands does not provide a remedy. Extension of the right to compensation is a matter for Parliament and not for judicial decision. For my part, it does not greatly concern me if it be the case that the landowner does not receive perfect compensation so long as he is compensated for any diminution that he can demonstrate in the value18 of his remaining estate. If a landowner in such a position is required to make some sacrifice in the wider communal interests represented by the local authority, then it would seem to me that that is a sacrifice which falls very far short of anything which could be called extortion. Last, it would appear to me that our duty is to give effect to the statutory right to compensation as construed in the decided cases and, if the effect of those is clear, then the merits of the case cannot render them unclear or otherwise than as they are. A second and separate argument advanced by Mr Horton is that no right to compensation arises unless there would have been a good cause of action in the absence of statutory powers and that, accordingly, damages should be assessed on the same basis as if there were no statutory powers. To my mind, that proposition does not follow for the reason that I have just attempted to outline, namely that the compensation to which a landowner is entitled is that to which the statute and the cases allow no more and no less. Mr Horton also criticises the judgment as confusing two different exercises. He says that the first step is to apply the test, ‘Has there been injurious affection?’  and, if the answer to that question is affirmative, then, he says, one goes on to the second question, which is to say, ‘How is the compensation to be measured?’  He submits that it is wrong to run these two exercises together and that doing so has led to confusion. I am not, for my part, persuaded that that criticism is justified. It is plain that the landowner’s interest in land is injuriously affected if its value is diminished and that equally appears to me to be the measure of his right to compensation. Mr Horton addressed specific arguments based on cases arising out of section 84 of the Law of Property Act 1925, in particular SJC Construction v Sutton London Borough Council, and Stockport Metropolitan Borough Council v Alwiyah Developments, cases to which I have already made brief reference. He submits that in the SJC Construction case the landowner did require compensation for loss of the ransom price that he could have exacted, and that approach, he says, was not disapproved in the later Stockport decision. I am not, for my part, by any means sure that the SJC Construction case did approach compensation on the basis of the ransom price. Dillon LJ certainly does not appear to me to have thought so in the Stockport case but, whether that be so or not, it appears to me that the analogy with section 84, although depending on a similarity of subject-matter, has to be viewed with very considerable caution in light of the fact that under section 84 a landowner is entitled to compensation for any loss or disadvantage which he has suffered, and that appears to me to be language much wider than one finds in section 10 or its predecessor, section 68. Mr Horton based an entirely different argument on the earlier decision in Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798. That was a case in which houses had been built in breach of a restrictive covenant and the landowner sought a mandatory injunction that they be demolished. Brightman J refused that injunction, reflecting the distaste that anyone would feel for the wanton destruction of habitable houses, but he none the less thought it unfair that the landowner should not be compensated at all and, accordingly, awarded a small part of the development profit as damages to the landowner. That decision has later been explained as an award akin to exemplary damages. If so, I feel bound to comment that the damages were not very exemplary since they left the developer to enjoy 95% of the fruits of his unlawful development. If, on the other hand, the damages were compensatory, it is perhaps not clear what the compensation was for. The principle of the case has perhaps been helpfully explained both by Sir Robert Megarry V-C in Tito v Waddell (No 2) [1977] Ch 106 at pp335 to 336, and furthermore in an interesting article by Professor Gareth Jones, ‘The recovery of benefits gained from a breach of contract’, to be found in (1983) 99 Law Quarterly Review 443. In that article the professor distinguished the results in the Wrotham Park case from that in Tito v Waddell (No 2) by pointing out (at p450) that the facts of the case were very different: In Wrotham Park Estate, the defendants had taken something for nothing for which the plaintiffs could have required payment, namely, the release of the restrictive covenant; this was not the case in Tito v Waddell (No 2) for the defendants had done nothing which the plaintiffs had a right to prevent. The defendants’ obligation was simply contractual and the plaintiffs’ loss was that suffered by their breach of contract. That appears to me to be a means of distinguishing the cases for present purposes. In the present case the local authority has done nothing wrong. It has taken nothing to which they were not entitled, and were indeed performing their statutory duty to supply housing. It would, therefore, appear to me entirely inappropriate to award compensation, even if the statute contemplated it, on the basis that the local authority was taking something to which they were not entitled. While, therefore, the court is indebted to Mr Horton for the arguments that he has advanced in challenge to the decision of the Lands Tribunal, I am, for my part, unpersuaded that the Lands Tribunal has fallen into error in any significant respect. To that conclusion I make two small qualifications, which are those I referred to earlier. Mr Howell, whom the court has not felt it necessary to hear in full in presenting the argument for the local authority, has made it clear that he does not accept the correctness of the decision in Wrotham Park Estates v Parkside Homes and, should the case progress further, he would wish to challenge the legal correctness of that decision. I do not myself think it necessary for this court to resolve the question whether that case was rightly decided or not since, for reasons I have endeavoured to give, it appears to me to be clearly distinguishable anyway. I would, however, say that, for my part, I would accept that the ratio of the case may very well be open to serious question and deserves consideration in a suitable case. The second qualification which Mr Howell made and which again I would accept is to the learned member’s acceptance that two cases, Metropolitan Board of Works v McCarthy (1874) LR 7 HL 243 and Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99, were properly explained as dealing with the right to compensation as opposed to the measure of compensation. Mr Howell’s submission was that they dealt with both. So far as McCarthy’s case is concerned, it seems to me to be true, if the case is read very literally, that the authority was one concerned with the right to compensation rather than the measure. But it also seems to me that at least four of their lordships were very clearly of the opinion that, just as diminution in the value of a landowner’s interest in land was necessary to establish the right to compensation, so also the extent of that diminution was the measure of the compensation. I would myself be very surprised if they had thought that their language was capable of being relied on for any submission such as that which the landowner now advances. So far as Argyle Motors is concerned, it does appear to me that the argument of counsel was to the effect that, once injurious affection of land is established, then the door is opened to any damage which can be demonstrated and which is not too remote. That is a proposition which, as it seems to me, Lord Wilberforce, speaking for the majority of the House, plainly rejected, in particular when he said at the bottom of p130 of the report: I must, therefore, agree with both courts below that if the right to compensation in the present case depends upon section 68 the appellants cannot succeed in obtaining compensation for business losses as such. I make it clear, as did the Court of Appeal, that if they can prove that a loss of profitability affects the value of their interest in the land they can recover compensation for this loss of value. That seems to me to be a clear statement by Lord Wilberforce that it is a diminution in the value of an interest in land which is the measure of recoverable compensation. Subject to those two and relatively minor qualifications, I find myself in general agreement with the learned member’s judgment and I do not, for my part, entertain a shadow of doubt that he correctly answered the question put to him. For those reasons, I would dismiss the appeal. BELDAM and KENNEDY LJJ agreed and did not add anything. Appeal dismissed with costs