INJURIOUS
AFFECTION
Injurious
Affection is the loss value if any, to the residue lands caused
by the operation of the public works. The effect of the new works on
the value of the residue land may be known by the time compensation
is fully determined. However in a number of cases, particularly, for
large and/or unusual works, the effect may be difficult to predict at
the date of valuation. The following are examples of Injurious
Affection:
SEWERAGE
TREATMENT WORKS
INCREASED
FLOODING FROM NEW ROADWORKS
This was the basis of
compensation in Vecchio v Comm of Main Roads (1963) The
Valuer, January, 1965.
LOSS
OF PRIVACY
For example, from
road and rail construction (Edwards v Min of Transport (1964) 2 QB
134). In Edwards a reasonably secluded block of land was
exposed to public gaze from the new road works.
INJURY
TO THE REMAINING LAND
For example, from
noise, vibration, dust, lights, and fumes from passing traffic
(Edwards v Min of Transport (1964) 2 QB 134).
TELEVISION/RADIO
INTERFERENCE
For example, caused
by high tension line easements.
UNSIGHTLINESS
OF WORKS
For example, steel,
high tension transmission towers. The effect has been mitigated in
some sensitive areas by the authority painting the towers green.
HARBOUR
FOR PESTS ETC
For example, weeds
growing around the base of steel towers particularly, on agricultural
land.
INTERFERENCE
TO LAND USE
For example, having
to plough around a steel high tension line tower or the tower may
affect the aerial application of fertilizer and herbicides.
THE
RULE IN EDWARD'S CASE
This rule provides
that compensation for injurious affection is limited to the
injury directly and solely attributable to the construction or use of
the public work (Edwards v Min of Transport (1964) 2 QB
134). However, it is often difficult to isolate the extent of
damage caused by injurious affection emanating from public
works particularly, when they are an extension or upgrading of
existing works.
EXAMPLE
OF THE RULE IN EDWARD’S CASE
The effect of
increased air traffic and noise from the proposed extension of
Mangalore Airport could not be isolated from the total injurious
affection emanating from the airport. The High Court held that
where injurious affection cannot be isolated, the effect of
the works on the acquired land in combination with the original land
and constructions is the amount payable Morison's case
(Commonwealth v Morison (1972) 46 ALJR 453).
INJURIOUS
AFFECTION UNDER PLANNING LAW
Under some town
planning schemes compensation for injurious affection can be
claimed if the allowable land use is downgraded to an open space or
recreational use. Some town plans also allow compensation for
injurious affection caused by other land use downgradings for
example, from industrial or commercial, to residential. However, most
planning schemes today, do not allow compensation for this latter
type of Injurious Affection.
Where compensation
for such a change of use is not allowed, it raises the question of
"regulation or deprivation?" If compensation is not
payable, the relevant authorities could effectively "acquire"
land with a draconian change of zone and not have to pay compensation
otherwise payable. Such an inequitable action cannot occur at
Commonwealth level because the Commonwealth must pay just terms
for the acquisition of property for Commonwealth purposes (Min
of Army v Dalziel (1943) 68 CLR 261) (Dalziel's case ).
These arguments apply
to the increasing use of transferable property rights as de
facto compensation for a damaging zone or an order over property.
For example, as "compensation" for owners of heritage
listed properties. However, such schemes are clumsy attempts at
compensation, and in many cases proper compensation is not
obtainable. For example, where there is no market for the
transferable right.
