Emslie & Simpson Ltd v Aberdeen City District Council

Compulsory acquisition — Whether long lease containing landlord’s option to break for redevelopment which was implemented by notice before general vesting declaration took effect compensatable as a lease with less than a year to run — Whether loss of profits in year before acquisition caused by blight compensatable The appellant claimants trade in shop premises under the name of Target Discount in terms of a lease from the heritable proprietors, W Ltd; the period of the lease was from May 28 1975 to May 28 2000. Clause 21 of the lease permitted the landlord to terminate it after May 28 1980 on giving 12 months’ notice in the event of the landlord intending to demolish, develop, reconstruct, modernise or refurbish. Following a successful application to quash the decision of the Secretary of State to confirm a compulsory purchase order made in 1981, W Ltd then entered into a ‘linking agreement’ by which it undertook to make its lands, including the premises, available to the council. The compulsory purchase order was then confirmed and on March 17 1985 the council served on the claimants and W Ltd notice of making a general vesting declaration which vested the properties in the council on April 15 1987. On March 26 1987 W Ltd served a notice to quit on the claimants under clause 21 requiring them to vacate by March 28 1988. The claimants in fact vacated before April 15 1987. The claimants appealed from the Lands Tribunal for Scotland, which had held that: (1) the notice to quit was valid and their tenancy was a long tenancy about to expire to which para 8 of Schedule 24 to the Town and Country (Scotland) Act 1972 applied by virtue of para 38 by reason of the existence of the landlord’s option to break in clause 21 whether or not that option was exercised; and (2) that the claimants were not entitled to loss of profits suffered by Target Discount in the year prior to the vesting date. The claimants submitted that clause 21 was incapable of having any effect because of the linking agreement as W Ltd were not able to carry on the development and that their tenancy was a long tenancy which vested in the council by para 7 of Schedule 24 and was appropriately compensatable. Held: (1) The option under clause 21 was still available at the date of the general vesting and declaration because W Ltd was still the landlord at that date and the effect of serving the notice to quit was to alter the lease from a long tenancy to a long tenancy about to expire compensatable as a lease with less than a year to run under section 114 of the Lands Clauses (Consolidation) Act 1854. (2)  Per Lord President Hope and Lord Mayfield: A causative link between the taking of land from the claimants and their trading losses in the year before acquisition was not established and accordingly loss of profits attributable to the indiscriminate effects of blight was not recoverable. Lord McCluskey dissenting: The tribunal found as a fact that the loss was caused by the overall blighting effect of the scheme of acquisition. The fact that the claimants would have had no title to claim had their land not been taken and that others suffered loss through blight who had no claim to compensation because no land was taken from them was unsound reasoning. The real cause of the loss was the scheme involving the compulsory purchase order and the threat of compulsory acquisition of the affected land. There was a direct link between the loss and the dispossession of the claimants. The test for compensation was one of equity. The following cases are referred to in this report. Aberdeen City District Council v Sim 1983 SLT 250; (1982) 264 EG 621, [1982] 2 EGLR 22 Evans v Glasgow District Council 1978 SLT (Lands Tr) 5 Harvey v Crawley Development Corporation [1957] 1 QB 485; [1957] 2 WLR 332; [1957] 1 All ER 504; (1957) 55 LGR 104; 8 P&CR 141, CA Lanarkshire and Dunbartonshire Railway Co v Mair (1895) 22 R 912; 21 R 1018; 31 SC LR 239; 2 SLT 258 Prasad v Wolverhampton Borough Council [1983] Ch 333; [1983] 2 WLR 946; [1983] 2 All ER 140; (1983) 82 LGR 265; 47 P&CR 252; [1983] EGD 627; 265 EG 1073, [1983] 1 EGLR 10, CA Venables v Department of Agriculture for Scotland 1932 SC 573 Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 This was an appeal by Emslie & Simpson Ltd from the decision of the Lands Tribunal for Scotland, which had awarded the appellants £75,400.86 in a claim for compensation arising out of the compulsory acquisition of a lease by the acquiring authority, Aberdeen City District Council. Roy Martin QC and Ian Miller (instructed by Ledingham Chalmers, of Aberdeen) appeared for the claimants; Brian Gill QC and J Gordon Reid QC (instructed by Bennett & Robertson, of Edinburgh) represented the acquiring authority. Giving his opinion, LORD PRESIDENT HOPE said: We have before us in this case an appeal by the claimants, Emslie & Simpson Ltd, against a decision of the Lands Tribunal for Scotland dated August 12 1992 in a reference for the determination of disputed compensation by which the tribunal determined the amount of the compensation to be paid in respect of the compulsory purchase of shop premises at 18 and 20 Loch Street, Aberdeen. There is also an appeal by the acquiring authority, Aberdeen City District Council, against a decision by the tribunal dated November 4 1992 finding the acquiring authority liable to the claimants in their expenses of the reference. The claimants’ appeal is under section 13(1) and (6) of the Tribunals and Inquiries Act 1971, while the appeal by the acquiring authority is under section 11 of the Tribunals and Inquiries Act 1992, a consolidating enactment which came into force on October 1 1992. It was agreed in the course of the hearing that it would be more convenient for the appeal in regard to expenses to be dealt with after a decision has been taken on the claimants’ appeal and it is with the claimants’ appeal only that this opinion is concerned. 34 The tribunal determined the compensation to be paid by the acquiring authority in the sum of £75,400.86. This sum was awarded to the claimants, who had been in occupation as tenants of the shop premises, under section 114 of the Lands Clauses Consolidation (Scotland) Act 1845. That section provides that a tenant who has no greater interest in the lands than as a tenant for a year or from year to year is entitled to compensation for the value of his unexpired term, for any allowance which ought to be made to him by an incoming tenant and for any loss or injury which he may sustain. A number of items of claim were agreed, and the tribunal made no award in respect of other items which were disputed by the acquiring authority. Among the disputed items for which an award was made were a claim for extinguishment of the claimants’ business and a claim for expenses incurred from the date of vesting. A sum was also included in the award for the value of the leasehold interest. The only items with which we are now concerned are those which are dependent on the tribunal’s decision that, following the service of a notice to quit by their landlords, the claimants’ lease had less than a year to run at the date of vesting, and a claim for loss of profits in the year prior to vesting as compensation for disturbance which the tribunal disallowed because they held that it had not been shown that this was a consequence of the taking of the claimants’ interest in the land. General background The claimants had traded in the premises at 18 and 20 Loch Street under the name of Target Discount in terms of a lease from the heritable proprietors, Wordie Property Co Ltd, dated February 23 and March 9 1979. The date of entry was May 28 1975 and the period of the lease was from that date until May 28 2000. The subjects were situated in a part of the central area of Aberdeen which had been under consideration for redevelopment for many years. From the mid-1960s Wordie had held discussions with the planning authority about proposals for redevelopment. This was on the basis that either they would develop their own property by themselves or there would be redevelopment of their land together with other neighbouring land in co-operation with the local authority. In 1979 the Secretary of State for Scotland approved the definition of a comprehensive development area, which included within area B of that area the land on which the premises at 18 and 20 Loch Street were situated. The local authority, which by this stage was Aberdeen City District Council, then entered into a formal agreement with a property developer, Bredero Vast Goed NV, for the development of area B. They then proceeded to make compulsory purchase orders for that area and the other part of the comprehensive development area known as area A and Bredero made an application for outline planning permission to develop area B. Wordie, who at this stage wished to proceed independently with their own development, objected to the compulsory purchase order and to Bredero’s application for planning permission relating to area B. They made a planning application in outline for the development by themselves of that part of area B which was substantially in their ownership. These events took place against the background of a clause in the lease between Wordie and the claimants, which was clause 21, in these terms: The Landlords shall be entitled to terminate this Lease, and resume the premises from the Tenants, with effect from or after the Twenty eighth day of May Nineteen hundred and eighty, provided they give to the Tenants written notice to that effect at least twelve months prior to the date of intended termination, in the event of the Landlords wishing to carry out (i) demolition and development or (ii) a re-construction, modernisation or refurbishment, of the premises, or of, inter alia, the premises, in the case of (ii) of a kind which would necessitate the Tenants completely vacating the premises. In the event of the Landlords terminating this Lease as aforesaid, the Tenants, provided the development, re-construction et cetera is completed before the Twenty eighth day of May Two thousand, and the Landlords so intimate to the Tenants, shall have an exclusive option (to remain open for exercise by the Tenants for not more than three months from the date of said intimation) of obtaining from the Landlords a Lease, to expire at the Twenty eighth day of May Two thousand, of accommodation comparable to the subjects of this Lease and forming part of the property presently owned by the Landlords at Schoolhill, Harriet Street, George Street and Loch Street, Aberdeen, on full repairing and insuring terms and on similar lines to the terms of this Lease but at a then current fair market rent fixed, mutatis mutandis, in accordance with Clause Twentieth hereof with rent reviews every fifth year. In the event of the Landlords terminating this Lease as aforesaid no compensation shall be payable to the Tenants or any other parties who may have rights of occupation of the premises or any part thereof. During the 1960s Wordie had gradually acquired all the properties in a block of approximately 2 acres formed by Schoolhill, Harriet Street, Loch Street and George Street, Aberdeen, with a view to redeveloping them. It was thought likely that the redevelopment would take place in the 1980s and the leases of all the properties in the block contained a provision in the same terms as clause 21 in the claimants’ lease, all the leases being terminable on or after the same date in 1980. In 1981, after a public inquiry, the Secretary of State confirmed the compulsory purchase order, refused Wordie’s planning application and approved the application for planning permission by Bredero. Wordie then made an application to the Court of Session under section 233 of the Town and Country Planning (Scotland) Act 1972 and para 15 of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to quash these decisions on the ground that they were ultra vires. Their application was successful and the decisions were all quashed: see Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. Wordie then entered into an arrangement with the council and Bredero by which Wordie undertook to make their land, excluding the properties on Schoolhill, available to the council for the redevelopment. They were to be entitled to a share of the ground rent payable by Bredero, which was to be determined by a formula which related to rents obtained for the leases of the developed property. They were also to retain a heritable interest consisting of a percentage of the whole property as redeveloped. This arrangement was formalised in an agreement, known as the linking agreement, between the three parties dated May 1 1984 and January 8 and August 7 1985. Following the making of this agreement Wordie withdrew their application for planning permission together with their objections to the council’s application for confirmation of the compulsory purchase order and to Bredero’s application for outline planning permission. The public inquiry was then reopened and in 1985 the Secretary of State granted an amended application for planning permission to Bredero and confirmed the compulsory purchase order for the area proposed for the redevelopment. This compulsory purchase order covered all the subjects in the block owned by Wordie, including the premises at 18 and 20 Loch Street. The design of the development was such, however, that the properties belonging to Wordie fronting on to Schoolhill did not need to be acquired. These properties were later refurbished by Wordie themselves in terms of the linking agreement. On March 15 1985 Bredero served notice on the council and on Wordie in terms of clause 4 of the linking agreement listing all of Wordie’s properties which were to be acquired by the council for the redevelopment. By letter dated March 17 1985 the council, as the acquiring authority, served on Wordie and on the claimants notice of the making of a general vesting declaration within the meaning of section 278 of, and Schedule 24 to, the Town and Country Planning (Scotland) Act 1972 in respect of all the properties situated within area B, including the premises at 18 and 20 Loch Street. The effect of the general vesting declaration, in terms of para 7 of Schedule 24 to the 1972 Act, was to vest the properties in the council on April 15 1987, on which date the council were to be entitled to enter upon and take possession of the land. In terms of para 8 of Schedule 24, however, it was necessary, if the claimants’ tenancy was a long tenancy about to expire as defined by para 38 of the Schedule, for the council to serve a notice of intended entry on the claimants if they wished to take possession of the premises leased to them on April 15 1987. But the claimants vacated the premises without waiting for such a notice to be35 served on them and the council duly entered into possession of the premises on that date. In the meantime Wordie served on the claimants a notice to quit dated March 26 1987. The notice was in these terms: We hereby give you notice that we require to resume possession of the above premises leased by you because it is wished to carry out demolition and development works which will affect the premises. You are therefore to remove from the premises at 28th March 1988, on which date your lease is terminated. In a letter to the claimants on the same date which accompanied the notice Wordie stated: You will have received from the City of Aberdeen District Council Notice of the making of a General Vesting Declaration affecting the lease to subjects and requiring vacant possession thereof on 15th April 1987. Notwithstanding the removal date stated in this company’s enclosed notice this does not prejudice the Council’s requirement for vacant possession on 15th April 1987. Our notice may however affect any statutory rights you may have to compensation from the Council from having to relinquish possession on 15th April 1987, rather than the removal date stated in the enclosed notice. It appears from the terms of that letter that Wordie did not expect that their notice to quit would be enforced, because the council by reason of the general vesting declaration were in a position to recover possession of the subjects much earlier by serving on the claimants a notice of intended entry. But the effect of their serving the notice to quit was to entitle them to obtain the benefit of a provision in clause 6(c) of the linking agreement which was in these terms: In the event that the Council is required to pay compensation in respect of any interest in the Wordie Subjects other than that of Wordie, Wordie shall pay to the relief of the Council and of Bredero such compensation together with any interest thereon; PROVIDED ALWAYS THAT (One) where in any notice served by Bredero on the Council and on Wordie pursuant to the provisions of Clause Fourth hereof, the date therein specified is earlier than thirteen months after the service of said notice, and where Wordie shall within fourteen days after its receipt of said notice, give to the owner of any such interest the requisite notice to terminate that interest at the earlier lawful date following said date the foregoing obligation upon Wordie to pay to the relief of the Council and Bredero compensation (together with any interest thereon) in respect of that interest shall not apply . . . The precondition in respect of the date of the notice served by Bredero was satisfied for the purposes of this clause, and Wordie were obliged to serve notice to quit on the claimants if they were to avoid liability to relieve the council and Bredero of any compensation which those parties might have to pay to the claimants in respect of the compulsory acquisition. Any liability on Wordie themselves to pay compensation to the claimants was also avoided by giving such notice to quit, provided that the notice could be regarded as having been validly given and the lease could be regarded as having been duly terminated in terms of clause 21 of the lease. Notice to quit It was submitted to the tribunal on the claimants’ behalf that the notice to quit was invalid and of no effect, on the ground that the lease could be terminated under clause 21 only in the event of Wordie themselves wishing to carry out work of the kind specified in that clause. In the events which had happened that could not have been their wish, as the council had already served a general vesting declaration on them and they would cease to have any interest in the premises when that declaration took effect. It was said that the real purpose of the notice was to limit the claimants’ right to compensation and to relieve Wordie of any liability for compensation to be paid by the acquiring authority and not to bring the lease to an end. In the opinion of the tribunal, however, the notice to quit was a valid notice given under clause 21. In their view it could reasonably be said that it was given ‘in the event of the landlords wishing to carry out’ demolition and development in terms of that clause, even although this was now to be done not by Wordie alone, but by them in partnership with the council and with Bredero. They considered that the giving of the notice to quit, after the making of the general vesting declaration but before the vesting date, had the effect of converting what would otherwise have been a long tenancy on that date into a tenancy for less than a year. The result was that, subject to the giving of a notice of intended entry in terms of para 8 of Schedule 4 to the 1972 Act, the claimants’ occupation after that date would continue to be as tenants by virtue of the tenancy. Accordingly, the claimants’ only claim for compensation for the loss of their interest in the land under section 114 of the Lands Clauses Consolidation (Scotland) Act 1845 was on the basis that the lease had less than one year to run. The claimants contend in their grounds of appeal that, in holding that the notice to quit was a valid notice, the tribunal erred in law. They also contend, in a separate ground of appeal, that the tribunal erred in law in holding that the provisions of para 8 of Schedule 24 to the 1972 Act applied to their tenancy. This ground of appeal is directed to a passage in the tribunal’s opinion in which they state that, if at the date of the general vesting declaration the claimants’ tenancy was not in fact a short tenancy or a long tenancy which was about to expire, it was nevertheless a tenancy to which para 8 applied because of the provisions of para 38 of the same Schedule in which definitions of the expressions ‘short tenancy’ and ‘long tenancy about to expire’ are set out. Plainly this was not a short tenancy as defined in that paragraph, because it was not a tenancy for a year or from year to year or any lesser interest. But para 38(2) provides that, in determining for the purposes of that paragraph whether a tenancy granted for an interest greater than a short tenancy is, at the date of a general vesting declaration, a long tenancy which is about to expire it shall be assumed that the landlord will exercise any option to terminate the tenancy then or thereafter available to him. In the tribunal’s view Wordie still had a valid option to terminate the tenancy under clause 21, so it was to be assumed that that option would be exercised, whether or not that was in fact the case. Counsel recognised that the points taken in these two grounds of appeal must stand or fall together. This was because the claimants’ argument is that the notice to quit was invalid because the option given to Wordie by clause 21 of the lease was no longer available to them to exercise. As they were unable to show by that date that they themselves wished to carry out demolition and development of the premises, the conditions necessary to a valid exercise of the option could no longer be satisfied. So the notice to quit which was in fact served was invalid and in any event the option to which para 38(2) applied was not available. The practical effect of these two points is the same also. Unless the tenants’ tenancy was a long tenancy about to expire within the meaning of para 38, their interest in the lease would require to be treated as having vested in the council at the end of the period specified in the general vesting declaration in terms of para 7. This would have the appropriate consequences as regards the assessment of the compensation to be paid to them for the value of the leasehold interest. The critical question, therefore, is whether this was a long tenancy which was about to expire. The effect of the definition in para 38 is that it is to be assumed that Wordie would exercise the option under clause 21 if it were still available to them, even if that option was not in fact exercised. The claimants’ argument was that by entering into the linking agreement Wordie put it beyond themselves to take advantage of clause 21. They submitted that by the date of the general vesting declaration clause 21 was incapable of having any effect as a means of terminating the lease, and that it had to be assumed for the purposes of para 38(2) of Schedule 24 that the option to terminate in terms of that clause was no longer available. The purpose of clause 21, it was said, was to regulate the private rights of the parties to the lease. It had no place where the development was to be taken in the exercise of compulsory powers. It was essential to a valid exercise of the option that the landlords wished to carry out the work described in that clause. The wish which the clause described had to satisfy two requirements. It had to be a wish to carry out demolition and development of the premises let to the tenants or, inter alia, those36 premises, this being a development over which the landlords themselves would retain control. And it had to be a wish to terminate the lease in order to undertake that development. But by clause 4 of the linking agreement it was agreed that the premises together with other premises were to be developed by the use of the statutory procedure of compulsory acquisition. This meant that the contractual method of terminating the lease was no longer to be used. Under reference to other clauses in the linking agreement it was submitted that the works which that agreement contemplated involved the relinquishing by Wordie of control over the form of the development. This was to be a development of an entirely different kind from that contemplated by clause 21 of the lease. The actings of the parties were, it was submitted, consistent with this approach. The letter of March 26 1987 which accompanied the notice to quit seemed to accept that that notice was without prejudice to the council’s right to obtain vacant possession on the date specified in the general vesting declaration. That would be so only if the notice to quit was invalid, because its effect if valid was that para 8 and not para 7 of Schedule 24 to the 1972 Act was to apply. Mr Martin accepted that if the notice was a valid notice it would still have been open to the council to serve a notice of intended entry in terms of para (a) of the Schedule if they wished to obtain entry before the date as from which the lease was to terminate. But no such notice was served and the claimants left the premises without waiting for this to be done. All of this was consistent with this having been a long tenancy, the claimants’ interest in which was extinguished on April 15 1987. The use of the words ‘it is wished’ in the notice to quit was also significant because there was here a recognition by Wordie that they could not state that they themselves wished to carry out development. In my opinion, no significance can be attached to the subsequent actings of the parties or to the words used in the notice to quit. The question whether the option under clause 21 was still available to be exercised does not depend on the view taken by the parties of its effect, nor does it depend on the way in which Wordie expressed themselves when they elected to exercise it. It appears from the letter of March 26 1987 that there may have been some misunderstanding, at least on Wordie’s part, about the effect of the notice to quit, if it was valid, in regard to the council’s right to obtain vacant possession of the subjects on April 15 1987. It can also be said that Wordie’s use of the words ‘it is wished’ in regard to the carrying out of the development rather than ‘we wish’ implies a recognition on their part that, as others were now involved in the project, those words were more appropriate. But these points relate only to the way in which the option was exercised, not to question what is central to this part of the case, which is whether the option was still capable of being validly exercised. On this point I consider that the Lands Tribunal were entitled, on the facts set out in their opinion, to hold that the option under clause 21 was still available. Wordie were still the landlords of the premises at the date of the general vesting declaration and it was still open to them as landlords to entertain a wish in regard to development of the premises. It is clear from the tribunal’s findings that for a long time they had had it in mind that there would be a redevelopment of this area. This was why clause 21 had been inserted in this lease, as it had been in leases relating to the other properties in the block. The original plan had been for Wordie to carry out their own development but events had overtaken them. The purpose of entering into the linking agreement was to resolve their long-running dispute with the council and with Bredero. Its effect was that all three parties were to combine together to effect the redevelopment. Mr Martin accepted that the tribunal had correctly understood the effect of the linking agreement when they stated that when Wordie eventually agreed to support the scheme it was on the basis that they would themselves have a share in the development, and that their involvement included the retention by them of a heritable interest in the land subject to development and a right to a share in returns from it when it was carried out. As Mr Brian Gill QC for the council put it, Wordie had in effect become codevelopers of the subjects with the council and with Bredero, with a significant control over the development and a significant share in the title to the land and in the receipts. In my opinion, it was still open to Wordie to say, as partners in the co-operative venture, that they wished to demolish and develop the claimants’ premises together with other premises. The manner of achieving that development had no doubt altered from that which was envisaged when the lease was entered into. But the essential purpose of the wish to recover possession of the subjects was the same. As for the argument that, since the premises were to be the subject of a compulsory acquisition in terms of the linking agreement, the service of a notice to quit was no longer a necessary part of the project of the development, the answer lies in the fact that there was nevertheless a substantial purpose to be served by giving a notice to quit at this stage. One of the purposes of clause 21 had all along been, as the last sentence of it makes clear, to relieve Wordie of the obligation to pay compensation to the tenants for terminating the lease in terms of that clause. The effect of serving a notice to quit prior to April 15 1987 was to alter the lease from a long tenancy, the tenants’ interest in which would be extinguished on the vesting date, to a long tenancy about to expire. The landlords’ interest in the lease, subject to the notice to quit, would then transmit to the council, with a consequent reduction in the council’s liability to the claimants by way of compensation for the termination of their interest. The council would have the option of terminating the tenancy by serving a notice of intended entry under clause 8 of Schedule 24 or of enforcing the notice to quit and recovering possession of the premises in due course. In my opinion, therefore, there were sound practical reasons for wishing to serve a notice to quit at this stage. It cannot in any event be said that the option to serve such a notice in terms of clause 21 was no longer available, because a notice in terms of that clause was still capable of affecting the rights of the parties to the lease. For these reasons I consider that the Lands Tribunal reached a sound decision on this point, and that they were right to award compensation to the claimants under section 114 of the 1845 Act on the basis that the lease had less than one year to run at the date of vesting. Loss of profits for disturbance The claimants submitted, as a claim for disturbance, a claim for loss of profits sustained by them under the trading name ‘Target Discount’ in the year prior to the vesting date. They averred that from, at latest 1982, the area which included their premises began to be blighted by public knowledge of the development proposals and that customers were discouraged by the closure or relocation of other traders, the commencement of works on area A and the diversion of bus routes. But the tribunal rejected the claim on the ground that that loss, which they accepted was caused by the blight on trading in the surrounding area owing to the scheme, could not be said to have been a consequence of the acquisition of the claimants’ interest in land or of their dispossession from it. In their opinion the compensation for disturbance to which the claimants were entitled did not include compensation for business losses which had not been shown to have been a consequence of the taking of their interest in the land. The claimants contend in their grounds of appeal that the tribunal erred in law in holding that they were not entitled to their loss of profits for compensation for disturbance prior to the vesting date. There are, I think, inherent in the tribunal’s decision on this point two findings, one of which is a finding in fact and the other a finding in law. So far as the facts were concerned, the tribunal were satisfied that the claimants had suffered a loss of profit during the year prior to the vesting date which was due to the overall blighting effect of the scheme. This finding was in accordance with the claimants’ averments on this point, and I think that it is significant that it was not suggested in the averments, nor has it been said to have been demonstrated by the evidence, that the claimants’ loss of profits was caused by their having to leave the premises. The cause of this loss was not said to be the taking of the claimants’ premises in the exercise of compulsory powers but was a blight on trading generally which affected the whole area, owing to the scheme. Among those affected by it were Wordie’s37 tenants in Schoolhill, whose interests in land were not acquired although they were within the designated area of the compulsory purchase order. Also affected by it were occupiers of retail premises on the other side of Loch Street, which were outside the area of the compulsory purchase order and were not, therefore, under threat of being compulsorily acquired. The tribunal’s findings on these matters are not in dispute. The question of law which arises on these facts is whether a loss of this character can be recognised as part of a claim for disturbance. The tribunal held, after a review of the authorities, that a claim for compensation for a loss occasioned by disturbance may be valid, although the loss was incurred prior to dispossession, provided it was caused by the dispossession. There was no dispute in the argument before us as to whether a loss incurred prior to dispossession may be recovered in a claim for disturbance. The point at issue is whether the loss must be shown to have been caused by the dispossession, that it is to say by the taking of the premises from the claimant in the exercise of compulsory powers, or whether it is sufficient for the loss to be recoverable that it was caused by the overall effects of the scheme of acquisition. The precise limits of a claim for disturbance have never been defined in the statutes. Section 12 of the Land Compensation (Scotland) Act 1963, which replaced section 2 of the Acquisition of Land (Assessment of Compensation) Act 1919, set out the rules for the assessment of compensation in respect of a compulsory acquisition. Rule (2) provides for the assessment of the value of the land, and rule (6) states that the provision of rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land. The foundation for an award of compensation of disturbance lies in the earlier statutes. Section 114 of the Lands Clauses Consolidation (Scotland) Act 1845, in terms of which the tribunal made their award of compensation in the present case, states simply that the tenant ‘shall be entitled to compensation . . . for any loss or injury which he may sustain’. That section should be read together with section 17 of the same Act, which provides that the promoters of the undertaking must state in the notice to treat that they are willing to treat for the purpose of the lands ‘and as to the compensation to be made to all parties for the damage that may have been sustained by them by reason of the execution of the works’. A reference to compensation for any damage sustained by reason of the execution of the works appears also in section 19 of that Act. In Venables v Department of Agriculture for Scotland 1932 SC 573 it was held that rules (2) and (6) of the 1919 Act did not have the effect of displacing in any way the principle recognised by the 1845 Act that the person dispossessed should get compensation for all his loss in addition to the value of the lands to be taken. Lord Justice Clerk Alness said at p581: The sound principle would seem to be that the person dispossessed shall get compensation for all loss occasioned to him by reason of his dispossession. The Act of 1845 recognises that; the text-books recognise it; judicial authority recognises it; and the Act of 1919 continues to the evicted owner all claims formerly open to him, including that claim. In Aberdeen City District Council v Sim 1983 SLT 250*, at pp252-3 emphasis was placed on the generality with which this proposition was expressed, and it was noted that the decision in Venables had been cited with approval and followed in England in Harvey v Crawley Development Corporation [1957] 1 QB 485. The issue in Sim was whether expenditure prior to the notice to treat was recoverable. The claim was for reimbursement of solicitors’ fees which the claimants had incurred in the purchase of another house in the belief that their house was to be compulsorily acquired in the near future. The argument to the contrary was based on the use of the word ‘consequence’ by Romer LJ in Harvey at p494, where he said: It seems to me that the authorities to which our attention was drawn do establish that any loss sustained by a dispossessed owner (at all events one who occupies his house) which flows from a compulsory acquisition may properly be regarded as the subject of compensation for disturbance, provided, first, that it is not too remote and, secondly, that it is the natural and reasonable consequence of the dispossession of the owner. *Editor’s note: Also reported at (1982) 264 EG 621, [1982] 2 EGLR 22. Denning LJ, as he then was, used a similar expression in the same case at p492 where he said that the law on the principle of compensation was settled both in England and in Scotland: Those cases show that, in addition to the actual market value of the house, when sold with vacant possession, Mrs Harvey is entitled to ‘compensation for disturbance,’ which is specifically preserved by section 2, rule (6), of the Act of 1919, and includes all damage directly consequent on the taking of the house under statutory powers. In Sim it was held that the word ‘consequent’ was to be understood in the causal, not the temporal, sense, and that decision has now been followed in England in Prasad v Wolverhampton Borough Council [1983] Ch 333*. Mr Roy Martin QC, for the claimants, accepted, however, that the principles as developed by these decisions did not take the matter as far as he needed to go in order to show that the loss of profits which the claimants had sustained in this case was recoverable. *Editor’s note: Also reported at (1983) 265 EG 1073, [1983] 1 EGLR 10. The claimants’ submission was that their loss was recoverable in terms of section 17 of the 1845 Act, as damage sustained by them ‘by reason of the execution of the works’. It was accepted that a causative link had to be established between the loss and the actions of the promoters of the scheme. It was submitted, however, that the word ‘dispossession’ which appears in the authorities ought not to be construed too narrowly. There was a direct and natural relationship between the dispossession of the owner or occupier of the lands and the works for the purpose of which the land was being compulsorily acquired. It was the carrying out of the works which gave rise to the right to compensation, and it was appropriate to take into account the effect of the scheme for the carrying out of these works. Reference was made to Evans v Glasgow District Council 1978 SLT (Lands Tr) 5 at p12 in which, in a claim for a disturbance payment under section 35(1)(b) of the Land Compensation (Scotland) Act 1973, the tribunal left open the question whether anterior loss of profits consequential upon pending displacement could be claimed for loss sustained by the claimant ‘consequent upon his having to quit the land’. In principle, it was said, there was no reason why a loss incurred before acquisition resulting from action taken by the claimant as a result of the threat of acquisition, as in Sim, should be recoverable while other losses resulting directly from that threat, such as from the blight to which the loss was attributable in this case, should be held not to be recoverable. In my opinion, however, the claimants’ loss cannot be brought within the principles which have been established by the authorities. I think that it is significant that the distinction which the claimants seek to draw, between the expression ‘by reason of the execution of the works’ in sections 17 and 19 of the 1845 Act and the word ‘dispossession’ in the authorities, has never been seen as a point of importance in any previous discussion of the subject. The law as developed in the authorities, against the background of the provisions of the 1845 Act, is that compensation is given for loss caused by the taking of the lands. In Lanarkshire and Dunbartonshire Railway Co v Mair (1895) 22 R 912 at p919, Lord Kinnear put the matter in this way: . . . It is a well-settled rule in the construction of the Lands Clauses Act that when lands have been taken in the exercise of powers of compulsory purchase, the owner or occupier, as the case may be, is entitled not only to the market value of his interest but to full compensation for all the loss which he may sustain by being deprived of his land. The phrase used by Denning LJ in Harvey at p492 is ‘all damage directly consequent on the taking of the house under statutory powers’. This interpretion of the concept of dispossession has received statutory expression in section 35(1)(b) of the 1973 Act, which refers to the loss which the claimant will sustain by reason of38 the disturbance to his trade or business ‘consequent upon his having to quit the land’. It is dispossession caused by the taking of the lands which gives rise to the right to compensation, not the threat of dispossession or the effects of publication of plans for the execution of the works. Where, as in Sim and in Prasad, loss incurred under the threat of dispossession has been held to be recoverable, this is because the dispossession has followed and the loss has been shown to have been caused by the dispossession. The loss for which compensation was awarded in these cases was for expense which might have been incurred after the dispossession but which the claimants had chosen to incur beforehand. In Sim the court said at p253 that it would be inequitable if a claim which satisfies the tests described by Romer LJ in Harvey at p494, that it is not too remote and is the natural and reasonable consequence of the dispossession of the owner, should be denied the right to compensation because the expenditure was incurred prior to the service of the notice to treat, when similar expenditure incurred subsequent to the service of the notice would be admitted. In Prasad Stephenson LJ recognised at pp350-351 that, if the person threatened with inevitable dispossession acts reasonably in removing to other accommodation before he is given notice to treat or before his land is actually acquired by compulsory purchase, he can properly be said to have been displaced in consequence of the acquisition and the loss which he will sustain by reason of his trade or business will be loss consequent upon his having to quit the land. I can find nothing in these authorities to support the proposition that a loss which cannot be shown to have been directly caused by the taking of the lands is recoverable. As Mr Gill pointed out, the categories of what may be recovered under a claim for disturbance cannot be treated as a closed list. It may be that under certain circumstances a loss of business profits may be regarded as a valid head of disturbance. This may be because the loss is due to steps taken by the claimant to anticipate the effects of the dispossession, such as closing the business for a while in order to make arrangements for its relocation. An appropriate test is whether the action or the expense incurred to anticipate the effects of dispossession could reasonably have been done or incurred by the claimant after receipt of the notice to treat. But loss which is held to be due to the effects of blight on trading generally cannot be said to have been caused by the dispossession of the claimant from the land. The two events are quite separate. Blight on trading is the result of the way the scheme is perceived by the public, and it is indiscriminate in its effects, as the tribunal found in the present case. It affects all traders in the area irrespective of whether their land is to be taken from them under the scheme. Dispossession, on the other hand, is the result of action taken directly against the claimant by the promoter, and it is particular to the person whose interest is acquired from him by the taking of the land. A causative link between the taking of the land from the claimants and their trading losses has not been established in this case, and I think that the tribunal were bound in these circumstances to refuse this part of the claim. Conclusion For these reasons I consider that the tribunal were right to determine the compensation payable in this case on the basis that the lease had less than one year to run and that the loss of profits in the business of Target Discount was not allowable prior to the date of vesting. I would uphold the determination and refuse the appeal. In agreeing, LORD MAYFIELD said: Your lordship in the chair has set out the findings of the tribunal, and the grounds of appeal and has summarised the contentions presented by both parties. I agree with your lordship’s reasoning and conclusion in relation to the first two grounds of appeal, namely that the tribunal were right to award compensation to the claimants under section 114 of the 1845 Act on the basis that the lease had less than one year to run at the date of vesting. In relation to the third ground of appeal I agree with your lordship’s conclusion that the claimants’ loss cannot be brought within the principles set out in the various authorities which have been referred to in this case. There is nothing in the authorities to support the contention that a loss which cannot be shown to have been directly caused by the taking of the lands is recoverable. In this case the tribunal held that the loss was due to the effects of blight on trading generally. The blight on trading was indiscriminate in its effects. As your lordship has pointed out, it affected all traders in the area irrespective of whether their land was to be taken from them under the scheme. I consider that the tribunal were entitled to conclude that the necessary causative link between the taking of the land from the claimants and the trading losses had not been established. In the circumstances I agree with your lordship in the chair that the tribunal had not erred in law in holding that the claimants were not entitled to loss of profits (sustained by them under the trading name ‘Target Discount’) for compensation for disturbance prior to the vesting date. In the circumstances I agree with your lordship in the chair that the appeal be refused. In agreeing on the first issue, but dissenting on the second, LORD McCLUSKEY said: As your lordship in the chair has made clear there are two distinct issues raised in this appeal. On the first, that raised by the first and second grounds of appeal, I agree entirely with your lordship’s opinion and there is nothing that I would wish to add. On the third issue, I have the misfortune to differ from your lordship. I shall therefore attempt to explain my reasons for reaching a different conclusion on this issue. In advancing their third ground of appeal, what the appellants claim is compensation for loss caused to their business in the final trading year before the vesting date given in the general vesting declaration. This loss was caused, they maintain, by the blighting effect of the impending acquisition of the premises from which their business was conducted. The tribunal have found in fact that the loss was ’caused . . . by the overall blighting effect of a scheme of acquisition’. This finding is not challenged; and it was taken to mean that the whole scheme of acquisition by compulsory purchase of all the designated premises in area B (including the premises owned by Wordie and tenanted by the appellants) had a blighting effect which was not confined to the appellants’ business and other businesses also compulsorily acquired, but which extended to other businesses carried on both in premises within area B which were not compulsorily acquired and in premises located ‘on the other side of Loch Street’ outwith but on the fringe of area B; they, of course, were not compulsorily acquired either. The appellants’ loss, which is conveniently referred to as a ‘loss of profits’, was measured by reference to a diminution of the expected profits for the period in question, and this diminution resulted directly from, that is to say was caused by, the blighting effect of the whole general scheme upon the whole area within and adjacent to area B. Your lordship in the chair has summarised the arguments presented by both sides and I need not attempt to make my own summary. But it is clear that counsel for both parties adopted the same general approach to the question and founded upon the same reported authorities. In particular, they were agreed that a tenant who lost his business premises through compulsory acquisition could properly claim for loss caused by the ‘dispossession’, provided the loss was not too remote and was the reasonable and natural consequence of the dispossession. They were further agreed that such loss was recoverable even if sustained or incurred before the date of the actual dispossession. Even a loss of profits, incurred during a period before actual dispossession, might be recoverable, although counsel were not agreed as to the kind of circumstances that would have to obtain before such an item of loss might be recovered. In essence, counsel for the respondents submitted that, for any such claim to be allowed, the claim would have to be one which arose in a way similar to the way in which the claim arose in Aberdeen City District Council v Sim: there, it was submitted, the loss could be seen as an inevitable consequence of the dispossession, for the claimant had simply taken steps in anticipation of the dispossession so that a loss39 which was properly to be regarded as an inevitable consequence of the dispossession had simply been incurred, or realised, earlier rather than later, before dispossession instead of after it. By way of illustration in relation to a claimable loss of profits, counsel offered the example of a businessman who, prior to actual dispossession, deliberately spent time and effort searching elsewhere for alternative premises in which to relocate his business, with the result that he could not devote that time and effort to running the existing business in the premises from which he was going to have to move and had thereby suffered an immediate diminution of trading with consequent loss of profits. Such a loss, albeit a loss of profits, could properly be regarded as an inevitable loss which the claimant had simply anticipated. Counsel for the respondents also submitted that in no case had compensation for loss of profits, caused prior to dispossession by the overall blighting effect of a scheme involving compulsory purchase, been allowed; indeed, no example was cited of such an item being claimed. The Lord Justice Clerk in Venables v Department of Agriculture for Scotland and the court in Aberdeen City District Council v Sim treated the claim for disturbance as one of equity: in Aberdeen City District Council v Sim that was stated to be ‘the proper test’. It is the test which I seek to apply; the equitable principle is that if a public authority uses compulsory powers to dispossess a person of his interest in land and causes him to suffer loss thereby the loss should not be allowed to fall upon the person dispossessed; he should be compensated for that loss by the acquiring authority. In so formulating the principle I recognise that it must be applied in such a way as to guard against spurious claims — cf Lord Hunter in Venables. But the principle itself is not to be restricted just because it has to be cautiously applied. And clearly the causal link must be proved. That leads me to consider the matter of cause and effect. In my opinion, it is essential in each case to discover as a matter of fact what it is that has caused the loss giving rise to the claim. In this case the tribunal have identified the cause as the overall blighting effect of the scheme. But they, and the respondents support their position, distinguish between the overall blighting effect of the scheme, on the one hand, and the dispossession, on the other. Counsel for the appellants, however, says that this is to take too narrow a view. The claim is one of equity; the disturbance is that occasioned or sustained by reason of the execution of ‘the works’ — cf Lands Clauses Consolidation (Scotland) Act 1845, section 17. In the light of the authorities, it is submitted, that means occasioned by the carrying forward of the scheme to completion by dispossessing owners and tenants; but the appellants do not dispute that it must be shown that the loss was caused by the dispossession. It is clear that the question of causation is one for the tribunal. Causation raises questions of fact rather than questions of law. But, on the other hand, where the tribunal of fact, as in the present case, have made their approach to the determination of the causation issue absolutely clear and precise it is open to this court, as a matter of law, to consider whether the tribunal have misdirected themselves in the way they have approached the question of causation or have drawn an unwarrantable conclusion as to cause and effect from the primary facts and circumstances which they have found established. It thus becomes necessary to examine closely what it is that the tribunal have said on this issue. I consider that the pertinent reasoning is to be found in the passage reading: That loss, which it is claimed was caused by the blight on trading in the surrounding area to the scheme, cannot be said to have been a consequence of the acquisition of Emslie and Simpson’s interest in land or of their concurrent dispossession. Losses in the year to 31 March 1987, or in any previous trading year in which there may have been a blight on trade, were not caused by the taking of the land. The same losses would have incurred if the land had not been taken. Before the vesting date Emslie and Simpson were in the same position as Wordie’s tenants in Schoolhill, whose interests in land were not acquired although they were within the designated area of the compulsory purchase order, and whose trade would also be affected by blight caused by the scheme, as would the trade of the occupiers of retail premises on the other side of Loch Street. The first strand of this reasoning is that the losses in the year to March 31 1987 ‘were not caused by the taking of the land. The same losses would have occurred if the land had not been taken’. I do not regard this as a persuasive and valid reason. In Aberdeen City District Council v Sim the claimants incurred their expenditure — and therefore suffered their loss — in 1973; it was then that they bought the alternative house. The resolution to make a compulsory purchase of their original house was not passed until 1976 and it was a year later before the compulsory purchase order was confirmed. The general vesting declaration and the related notice to treat did not follow until 1978. So in Sim’s case also it can properly be said that the same losses would have occurred even if the house had not been taken; there was in 1973 no commitment or obligation to take the house and no power to acquire it compulsorily. That did not prevent the court in Sim from concluding that the loss was properly to be regarded as one occasioned by reason of the Sims’ dispossession. The true cause operated to produce, in 1973, a loss. That cause could not change its character because of something happening or not happening years later, nor did any later event create a new cause which replaced the cause which operated in 1973. It is obvious, of course, that had the local authority in that case eventually decided not to proceed by way of compulsory purchase of the original house the Sims could not have recovered their alternative expenditure as part of a disturbance claim. But in that case, as in the present, there was dispossession eventually under a compulsory purchase order and the procedures consequent on it; so they were entitled to recover. Their 1973 loss was occasioned by and consequent upon their subsequent dispossession. Prasad v Wolverhampton Borough Council [1983] Ch 333 is also a case in which the expenses constituting the loss were incurred before the date of the notice to treat. Indeed, as all the modern cases make clear, the requirement that the loss be consequent upon or occasioned by reason of the dispossession does not bar a claim in respect of loss incurred before the dispossession. Causation is a matter of fact. If it be proved that the dispossession process caused the loss, then the actual dispossession under compulsory purchase powers merely gives the person who has suffered the loss a title to claim under section 114 of the 1945 Act. In my opinion, it is clear that the fact that the claimants would have had no title to claim for this item if the land had not been taken is not a fact which bears upon the causation issue. The tribunal clearly thought otherwise. In this respect, therefore, I am of opinion that the reasoning of the tribunal is unsound. The second strand of the reasoning is that others were also affected by blight, namely other tenants in Schoolhill, within area B, whose interests in land were not compulsorily acquired and also traders on the other side of Loch Street, who were outside the scheme altogether. Thus, what the tribunal is saying is that these people suffered loss without ever being dispossessed and therefore their loss could not have been occasioned by reason of their dispossession; as their loss had the same cause, namely overall blight, it followed that Emslie & Simpson’s loss was not caused by dispossession either. In my view, this is very similar reasoning to that underlying the first strand in the tribunal’s argument. It does not look directly at the chain of causation. It does not discover the true cause of the loss. It is saying, in effect, the same losses would have occurred if the land had not been taken, because the land on the other side of Loch Street was not taken yet those in business there suffered exactly the same kind of loss. The first point of difference is again that the appellants’ interest in land was taken and the result is that the appellants here had a title to claim under section 114 which the others whose land was not acquired did not have. But the crucial point is that this passage in the reasoning also begs the question as to the cause of the loss sustained by each of the three groups, those within the area whose land was acquired, those within the area whose land was not acquired, and those outwith the area. In my view, the cause of the loss sustained by those on the other side of Loch Street was not, of course, their actual physical dispossession; they were not dispossessed. The cause of their loss was40 the whole process of dispossessing of those, including the appellants, who were dispossessed by the scheme. Let me illustrate that by looking again at the example which Mr Brian Gill QC, for the council, offered of the businessman who, faced with a real, impending threat of dispossession under a compulsory purchase order, takes time off from running his business to try to find an alternative location and thereby suffers an immediate loss of profits for which, as Mr Gill rightly concedes, he can claim after he is actually dispossessed. Let us suppose that he is a doctor in busy private practice. Let us suppose further that next door, in premises which are not to be compulsorily acquired, a pharmacist carries on a business which is heavily dependent upon the trade from the doctor’s surgery. The pharmacist realises that, when the doctor goes, his dispensing business will go and his whole business will suffer seriously; so he too shuts up shop temporarily and follows the doctor around looking for suitable premises, preferably next door to the doctor’s new premises. He too will suffer loss of profits for the period while he neglects his business. What is the cause of his loss?  The answer is that it is effectively the same cause that operated in relation to the doctor, which ex concessu is the dispossession of the doctor under the compulsory purchase order. No doubt the pharmacist’s own voluntary action in deciding to take steps to counter the apprehended effects of the blight is also a causal factor (as with the doctor who has also chosen voluntarily to anticipate his problems); but the real cause of his action and of his loss is the blight occasioned by the dispossession resulting from the compulsory purchase. The pharmacist, of course, has no claim for disturbance; he has no title to claim under section 114. But the fact that he has no claim for disturbance does not mean that the cause of his loss is not the same cause which resulted in the doctor’s loss, being a loss for which the doctor can claim. The effective, underlying and prime cause of both losses is the same. If the same thinking is applied in relation to the persons affected by blight in and around area B the immediate cause of their losses is, as the tribunal correctly divined, the same, namely the blight. But the mere fact that they have no claim, not having had their land taken, does not mean that the present appellants, whose land was taken, have no claim. What, in my opinion, the tribunal have failed to do in this paragraph is to follow through the search for the full and real cause of the diminution of profits which the present appellants have suffered. The blight is the immediate cause but it is also the result, the effect of another cause. The tribunal have not sought to discover and identify that cause. But the tribunal make it abundantly plain that the paragraph quoted contains the whole of their reasoning, because that passage is followed by the words: For the foregoing reasons the Tribunal is satisfied that the compensation for disturbance to which Emslie and Simpson are entitled does not include compensation for business losses occurred before the vesting date which have not been shown to have been a consequence of the taking of their interest in the land. The phrase in the last 19 words is plainly not part of their reasoning; it is merely a restatement of their conclusion as expressed in the second sentence of the paragraph which I have quoted in full. In these circumstances, considering as I do that the whole reasoning of the tribunal on causation is flawed, I consider that the matter of causation needs to be looked at again. I do not see the need to obtain any further facts because it appears to me that all the necessary facts have been found by the tribunal to enable us to ascertain the real cause. The immediate cause, as the tribunal has found, is the overall blighting effect of the scheme. But what was the real cause of the overall blighting effect of the scheme?  The answer is, in my view, the bringing forward of the scheme including a compulsory purchase order for area B. That compulsory purchase order clearly involved the eventual physical dispossession of the present appellants; that was an integral part of the scheme. In my view, it is plain that the cause of the loss in respect of which the appellants now claim under this head of claim was the threat, ultimately realised, of compulsory acquisition of premises in area B under the scheme. In the light of that conclusion in fact, which I think cannot be challenged, the only question which remains is whether the loss sustained by the appellants, whose interest in land was compulsorily acquired, was a loss occasioned ‘by reason of’ their dispossession. I consider that the claim must be a proper claim if the scheme, of which an integral part is their dispossession, causes the blight, which in turn causes the loss, provided that the threatened dispossession actually occurs. It may be thought that to look at the scheme broadly rather than to look narrowly at the actual dispossession is to go beyond what the decided cases permit. In my opinion, that is not so. What is striking about the case of Aberdeen City District Council v Sim, in line with the other cases which remove the temporal or sequential element from causation, is that an event happening in 1978 is treated as the event which occasions a different event, which precedes it by five years. In other words, once there is a threat of dispossession followed some time later by dispossession the threat can operate as the cause of the loss which is incurred as a direct consequence of the threat. All that is then needed to give the claimant a title to sue is that the dispossession should actually take place. It was, in my view, the natural and reasonable consequence of the dispossession of the owners of their interests in various lands in area B which caused the blight, which, in turn, caused the loss. In the light of the authorities, especially Aberdeen City District Council v Sim which is binding on the court, the notions of dispossession, or the taking of the land, or ‘the works’ have been expanded to include those factors integral with the process of dispossession or taking even though the process precedes the actual dispossessing in point of time. I consider that here there is a direct link between the loss and the dispossession and that the loss sustained is in no sense too remote. It therefore appears to me that in accordance with the principles applied in Aberdeen City District Council v Sim and Prasad v Wolverhampton Borough Council the appellants are entitled to succeed in respect of this item of claim. In my opinion, furthermore, it is important to recognise that the test of the claim for disturbance caused by dispossession, as that notion has been developed, is the test of equity. If a person in fact suffers loss because his property is designated in a compulsory purchase order and the loss takes the form of loss of profits through the blighting of the business between the date of the first appearance of the order and the actual physical dispossession of the claimant then who is to bear that loss?  The respondents’ argument in the present case was that there could be no compensation for that loss. In other words, the person who suffers the loss which is directly caused by the compulsory purchase has no remedy against the compulsory purchaser, so he, the ‘victim’ of the scheme, must bear the loss himself. That appears to me to be a total departure from the test of equity. It does not appear to me that any of the cases to which we were referred requires such a result. In argument, Mr Gill pointed to the fact that others than the present appellants were dispossessed; the scheme was one which related to a substantial area, not just to this particular property. I accept that that is so, but, in my opinion, it makes no difference to the reasoning or the result. If there is only one property affected by a proposed scheme and the result of the scheme is to blight the business carried on in the property then, for the reasons I have considered, the owner of the property and of the business would be able to say that the cause of his loss was the scheme including his actual dispossession. Why should the result be different if there are two, or 20, discrete sets of premises with different businesses carried on in them, and all, or most of them, are affected by blight directly attributable to the threat of impending compulsory purchase?  There can be no safety in numbers for an acquiring authority. There can be no equity in saying that as between the promoters of a scheme of compulsory purchase and those who are dispossessed by it it is the dispossessed who must suffer the loss caused by the promotion of the scheme. Your lordship in the chair points out that the distinction which the claimants sought to make between the expression ‘by reason of the execution of the works’ in sections 17 and 19 of the 1845 Act and the41 word ‘dispossession’ in the authorities has never been seen as a point of importance in any previous (judicial) discussion of the subject. I agree that that is so; but looking at the facts and the issue in the cases to which we were referred I do not think that the point ever arose for determination. The observations of Stephenson LJ on pp350-1 in Prasad are clearly obiter and appear to have derived from a concession made by the amicus curias in relation to a point that the court there did not have to decide. No doubt the authorities do not, in the light of their own facts, expressly govern the point at issue here; but it appears to me that the principles they enunciate and apply do. In the whole circumstances I consider that the appellants are entitled to succeed on this branch of their claim. Appeal dismissed.