Commissioner of Main Roads v North Shore Gas Co Ltd

[1967] HCA 41

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

COMMISSIONER OF MAIN ROADS v. NORTH SHORE GAS CO. LTD.

(1967) 120 CLR 118

19 October 1967

Resumption and Acquisition of Land

Resumption and Acquisition of Land—Compensation—Persons entitled—Gas supplier—Gas mains and pipes in resumed property—Whether "land"—Gas supplier—Resumption of customers' lands—Business loss—Interpretation Act of 1897 (N.S.W.), s. 21 (e), (f)*—Public Works Act, 1912 (N.S.W.), ss. 101, 102, 103*—Local Government Act, 1919 (N.S.W.), s. 512**—North Shore Gas Act of 1875 (N.S.W.).

Decisions

October 19.
The following written judgments were delivered:-
BARWICK C.J., McTIERNAN, KITTO AND TAYLOR JJ. This is an appeal against an order of the Court of Appeal (Ex parte North Shore Gas Co. Ltd.; Re Commissioner for Main Roads (1966) 67 SR (NSW) 264; 13 LGRA 287 ) directing the issue of a writ of mandamus ordering the appellant to cause a valuation of the respondent's interest in the gas mains and service pipes in the streets, lanes and parks which "were taken" on or before 19th December 1963 for the purpose of the Warringah Expressway. The notification to the respondent of such a valuation pursuant to s. 102 (3) of the Public Works Act, 1912 is a condition precedent to the respondent's right to bring an action for compensation pursuant to s. 104 (Edwards v. Chief Commissioner for Railways (1912) 12 SR (NSW) 117 and Blackwell v. Railway Commissioners for N.S.W. (1931) 31 SR (NSW) 302 ). (at p123)

2. The respondent exercises the powers and functions conferred on the promoters by the North Shore Gas Act of 1875 and it claims to have been the owner of the gas mains and pipes underlying certain public roads, streets and lanes which were said to have been taken by the appellant for the above-mentioned purpose. Some portions of the lands in question were resumed under the provisions of the Public Works Act, 1912 for the purposes of the Main Roads Act, 1924-1960 and were vested in the appellant who is the "Constructing Authority". Other portions were not resumed but merely used in the construction of the expressway. (at p123)

3. The evidence before the Court of Appeal shows that on 23rd December 1963 the respondent lodged with the appellant a notice of claim for compensation in the form prescribed by the Public Works Act. The total amount of the claim, covering three heads, was 427,706 pounds. The first head was expressed to be for the full cost of laying substitute mains and service pipes "as a consequence of" construction of the expressway and, in effect, it was a claim in respect of the necessary work of re-locating services in a modified form rendered necessary by the construction of the expressway. No question arose in the Court of Appeal with respect to this item since before the proceedings were commenced it was agreed that this work should be carried out by the respondent at the expense of the appellant and the cost thereof has, we are told, been agreed upon and paid. (at p123)

4. The second head of the claim is for the value of feeder mains and services underlying the streets, lanes and parks said to have been taken for the expressway and which were not removed and re-located but were destroyed or buried in the work of construction. The amount claimed under this head is 23,576 pounds. (at p124)

5. The third head was for compensation of the value of that part of the respondent's undertaking which, it is claimed, "was taken and for severance thereof". The amount claimed under this head is 216,650 pounds and it is said to relate to the business loss caused by the resumption and purchase of private lands in and adjacent to the extensive area now occupied by the expressway. (at p124)

6. In the Court of Appeal the respondent sought to support its claim under the second heading on the ground that its interest in the mains and pipes underlying the soil, or in the space occupied by them, was land or an interest in land. This contention was upheld upon the authority of observations made in North Shore Gas Co. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1940) 63 CLR 52 Then, it was asserted, its claim under the third head was supportable as compensation which the respondent was entitled to for the "taking" of its mains and pipes the subject of the second head. In effect the contention was that the respondent's interest had a special value because, as we understand the argument, the mains and pipes had been used as a means of supply to the consumers who had formerly lived in the vicinity and whose lands, being private lands, had been acquired for the construction of the expressway. But, as we see the case, if there was a business loss of this character sustained by the respondent it did not result from the "taking" of the mains and pipes covered by the second head of its claim; it resulted from the acquisition of private lands for public purposes and the consequent departure of customers, and potential customers, from the area who, primarily, were served by the mains and pipes taken, i.e., removed or destroyed in the course of construction. We are unable to see that the acquisition of an area of private land for a public purpose, whether by purchase or resumption, resulting in the departure of the customers, or potential customers, of a business conducted in the vicinity can give rise to a right for compensation to the owner of the business. Still less, if possible, can we see that it would give rise to a claim for compensation against, not the resuming authority, but the constructing authority. Compensation for land resumed under Div. 1 of Pt. V of the Public Works Act is, of course, recoverable by the expropriated owner from the constructing authority pursuant to Div. 1 of Pt. VII but these provisions do not extend to cover a loss caused, not by the taking of the expropriated owner's land, but by the taking of the land of others in the vicinity. Nor is such a loss comprehended by the expression in s. 102 "compensation in respect of . . . any work or other matter done under the authority of this Act". Clearly enough, the quoted phrase refers to things done by the constructing authority in the exercise of the powers and duties conferred upon it by Div. 6 of Pt. VI of the Act. Section 85 of the Act acknowledges that compensation shall be payable in respect of any damage done in the exercise of these powers and duties and provides that the amount and application of the compensation payable by the constructing authority in any of the cases aforesaid shall be determined in the manner provided by the Act for determining the amount and application of the compensation to be paid for lands taken under the provisions thereof. (at p125)

7. However, it is possible that the mains and pipes in question themselves may have had some residual value and that the respondent was entitled to some compensation in respect of them whether they constituted an interest in land or chattels. But for reasons which will appear, it is unnecessary that we should consider the latter alternative; the question in the case, and the only relevant question, is whether the mains and pipes, or the space occupied by them, constituted an interest in land. In support of the contention that the respondent had such an interest reliance was placed, as already appears, upon observations made in North Shore Gas Co. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1940) 63 CLR 52 There the question was whether the mains and service pipes forming part of a continuous system of gas reticulation embedded in the soil of public roads, public places and private land by a gas company under powers conferred upon it by a private Act couched in similar terms to the present Act were "goods, wares, or merchandise" within the meaning of the proviso exempting an agreement for the sale of such things from ad valorem duty contained in the Second Schedule to the Stamp Duties Act, 1920-1933 (N.S.W.). It was held that they were not. In the course of the case Rich J. observed that (1940) 63 CLR, at pp 61-62:

"The sale is of the undertaking as a going concern and does not contemplate any severance or removal of any fixed apparatus. The mains and services have been placed in the ground for no temporary purpose, but to serve the end for which they are designed. In other words, they will remain in the soil until they have exhausted their useful lives, and then only will they be removed. They remain, however, the property of the company. They are placed in roads and other public places not belonging to the company and there they lie in alieno solo but in contemplation of law owned and possessed by the company. If they are to be classed as land they cannot form a subject of exemption as goods, wares, and merchandise, but if they remain personal chattels there is no reason why they should not form such a subject. The problem here is not the usual one arising from the purpose and degree of the annexation of the freehold, as for instance in a case of mortgagor and mortgagee (Longbottom v. Berry (1869) LR 5 QB 123, at p 137; Holland v Hodgson (1872) LR 7

C.P. 328, at p. 335.; Reynolds v. Ashby &Son (1904) AC 466, at p

474.). The degree of annexation is very great and the purpose undoubted. The pipes are buried to serve as a permanent or quasi-permanent means of conveying and supplying gas from reservoirs or containers to the various points of consumption. The problem arises from the provisions of the company's Private Act, which authorizes it to place the pipes in the soil of the road-ways and other places, to remove them, to control them and to retain the ownership and in effect the possession of them. In other words, the Act of Parliament negatives entirely the principle expressed by the maxim quicquid plantatur solo, solo cedit. Does this result in their continuing to belong to the legal category of personal chattels in which they fell before they were placed in the ground? On the whole I think that we should hold that they lost that character. They were dealt with in a fashion which, apart from specific legislative provision, would give them the same legal character as the soil in which they were placed for the purpose of the classification of things into chattels personal and realty. The statute prevents many of the consequences which would ensue from such a transition from the category of chattels personal to that of land, but it stops short of preventing the transition itself."

After some discussion of the point Dixon J., as he then was, said (1940) 63 CLR, at pp 69, 70:

"The mains and service pipes are embedded in the soil of the streets as a permanent means of providing the gas supply of the frontagers. The reticulation forms an artificial but normal or ordinary adjunct of the suburban street. There is therefore no doubt about the purpose, the degree nor the enduring nature of fixation of the pipes or their identification with the soil. So much of the earth as the pipes displace formed a space in the occupation of the company and that space constitutes land. The company's occupation of the space is as of right and is exclusive."

We doubt whether it was strictly necessary for the purposes of that case to decide, not only that mains and service pipes were not "goods, wares and merchandise", but also that they, or the space which they occupied, constituted an interest in land and we also doubt the correctness of this final conclusion. Differences of opinion from time to time have arisen concerning the true meaning and operation of the principle expressed in the maxim quicquid solo plantatur, solo cedit (see e.g., Wake v. Hall (1883) 8 App Cas 195 ), but, primarily, it is applied to determine the right of the owner of land to things affixed to or embedded in the soil. Whatever is fixed to the freehold is said to become part of it and is subjected to the same rights of property as the land itself (Woodfall's, Landlord and Tenant, 24th ed. (1939), p. 749). The presumption is said to be rebuttable and, it seems to us, it must be so when a statute empowers someone other than the owner of land to affix to or embed things in the soil and yet retain ownership of the things so affixed or embedded. In such circumstances why should it be assumed that the exercise of a specific statutory right to lay and maintain pipes, as in the present case, operates to vest in the donee of the power an interest in the land in which the pipes have been laid? The conclusion that it does seems to us to result from a lawyer's inherent tendency to assimilate such a right to some category known to the common law. It is, of course, a very special right. The exercise of the right to lay pipes in another's land is not intended to make, and does not make, for the better and fuller enjoyment of the land and the right, when exercised, confers a right to occupy some part of the land in a very limited and special way. The answer to the question which we have posed is, we think, supplied by the decision of Evershed J., as he then was, in Newcastle-under-Lyme Corporation v. Wolstanton, Ltd. (1947) Ch 92 In the course of the case he discussed the problem and such authorities as he thought bore on the point and he said (1947) Ch, at pp 103, 104:

"In these circumstances and bearing in mind the general rule that no greater rights or interests should be treated as conferred on the undertakers than are necessary for the fulfilment of the object of the statute, it seems to me reasonably clear as a matter of the construction of s. 6 of the Act of 1847, that the terms of the section are not intended to confer and are not apt to confer on the undertakers any right of ownership or proprietorship of the land affected. Equally in my judgment is the language of the section inappropriate to create in favour of the undertakers any tenancy or any easement or interest analogous to an easement. It is true that the rights of the undertakers are the creatures of statute, and that it is within the competence of Parliament to confer or create interests without regard to those incidents which are regarded as requisite to an agreement inter partes. Thus, Parliament may create an easement in gross as it may, I assume, create a tenancy without provision for the payment of rent and notwithstanding the absence of any term certain. But the absence of the incidents ordinarily appropriate to the existence of a tenancy or of an easement is, at the least, an important consideration for the determination of the question whether on the true construction of the statute the creation of any such interest was intended. It is indeed somewhat tempting to conclude that some right in the nature of an easement ought to be inferred ; and I have in mind the reference to a wayleave in the speech of Lord Atkinson in New Moss Colliery Co. v. Manchester Corporation (1908) AC 117, at p 124 But in my judgment these considerations are insufficient to give to the language of s. 6 of the Act of 1847 a meaning and intent which that language - particularly in the light of the contrasts to which I have already referred - cannot naturally or properly bear. Reference was made in the course of the argument to that species of property commonly known as flying freeholds. It is sufficient in my view to say that there is no real analogy between flying freeholds and pipes or cables laid under special Acts ; and I do not think that any assistance is obtained towards the solution of the problem of the latter by consideration of the former. It follows that, if I am right so far, the interest of the undertakers must be that of licensees without any title, legal or equitable, in the land itself."

It does not seem to us that there was any material difference between the enabling Act in that case and the North Shore Gas Act of 1875 and it is worth noticing that upon appeal Morton L.J. (as he then was) gave his express approval to this passage (1947) Ch 427, at pp 454, 455 To our minds it represents the view which we should adopt in the present case with the result, of course, that the contention of the respondent that it had an interest in the land in which the mains and pipes, the subject of the second head of the claim, were embedded, must be rejected. (at p128)

8. We have already observed that it may be that the mains and pipes themselves, which, of course, were the property of the respondent, had some residual value as chattels and that since the respondent was deprived of them by the exercise of the constructing authority's powers, it may be entitled to claim compensation therefor in accordance with the provisions of s. 85 and s. 102 of the Public Works Act. If so, it will be necessary to accommodate the language of sub-s. (3) of s. 102 to the character of the claim. But the respondent's claim was "in respect of the company's interest in the land hereunder described" and it was conceded by counsel that unless he succeeded in his contention that the respondent had an interest in the land in which the mains and pipes were embedded the claim for mandamus must fail. That this is so is obvious for the claim for mandamus rests upon the refusal of the appellant to cause a valuation to be made of the respondent's interest in the land and not upon any other refusal. We would, therefore, allow the appeal and discharge the order nisi. But in doing so we do not pass upon the question whether, if the mains and pipes themselves had any residual value as chattels, the respondent is entitled to be compensated in respect of its loss, if any. (at p129)

WINDEYER J. The central question in this case turns on the nature of the statutory right, power or privilege - the last is, I think, the most accurate term - of the respondent, the Gas Company to place its mains and pipes in the soil below public streets and roads in North Sydney. Did the exercise of that privilege create for the company a proprietary estate or interest which is "land" within the meaning of the Public Works Act, 1912 (N.S.W.) ; and which upon the resumption of the streets and roads for the purpose of constructing the Warringah Expressway should therefore be separately valued and paid for in accordance with ss. 102 and 103 of that Act ? That is the question. The Supreme Court of New South Wales thought that it should be answered in the respondent's favour, mainly because of the judgments in this Court in North Shore Gas Co. Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1940) 63 CLR 52 , in which the legal character of gas mains and pipes was considered. That case was entirely different from this. The question arose because one gas company, the present respondent, had purchased the whole of the assets, apparatus and undertaking of another gas company with a view to amalgamating the two enterprises. The vendor company had purported to sell and the purchaser company to buy the reticulation mains and pipes of the vendor embedded in the soil as a separate item from other parts of the property and plant. It was then claimed that the sum attributed as the sale price of the mains and pipes did not attract duty under the Stamp Duties Act (N.S.W.) on the ground that this was a sale of "goods, wares and merchandise" and thus exempt from duty. That proposition did not meet with favour either in this Court, or in the Supreme Court of New South Wales whence the appeal came (see (1939) 40 SR (NSW) 85 ). In both Courts there were arguments based on the common law relating to fixtures and on the distinction between realty and personalty. These considerations had a large place in some of the judgments, being invoked to support the conclusion that, while embedded in the ground, the mains and pipes had lost the character of chattels which could answer the description of "goods, wares or merchandise". Whether for that decision it was necessary to undertake any detailed analysis of real property rights is immaterial. The question for us is very different. It is not what description should be given to the mains and pipes in the ground, but what was the character or nature of the right of the respondent to place them there and have them remain there. It was a right in relation to the streets and roads, no doubt. But did it entitle the respondent to "compensation for land of which they have been deprived" - which is the phrase used in s. 101 of the Public Works Act ? Was it an "estate or interest" in "land resumed" - which are the words used in s. 102 ? The meaning to be given to "land" and to "estate" in that Act is prescribed by the Interpretation Act of 1897 (N.S.W.), s. 21 (e) and (f):

"(e) The word 'land' shall include messuages, tenements, and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever be the estate or interest therein. "(f) The word 'estate' shall include any estate, or interest, charge, right, title, claim, demand, lien, or encumbrance at law or in equity."

Both definitions are obviously ver extensive. But it is not enough to say that in one way or another they could comprehend the rights of the respondent because part of its system of mains and pipes was below the surface of the streets which have been taken over by the appellant and altered entirely in physical characteristics as part of a major engineering project. If the company's claim to compensation for the loss of an estate or interest in land is to be sustained, some precision is necessary in defining that estate or interest before it can be brought within the above definition, wide though it is, of "land". The North Shore Gas Act of 1875 conferred powers on the company by provisions in a fairly common form. They include power "to open and break up the soil and pavement of . . . streets . . . to dig and sink trenches and drains and to lay mains and pipes . . . in under across or along such streets and bridges . . . and from time to time . . . remove alter repair replace and relay" them. The scope of the rights which arose by the exercise of these powers do not depend on this statute alone. They are materially affected by s. 512 of the Local Government Act, 1919 (N.S.W.), as amended. This empowers the council of a municipality or shire, where any water-pipe, gas-pipe, sewer, drain, tunnel etc. is on, under or over any public road, to require the person in whom it is vested to alter it according to the council's direction. If the alteration is not made with all reasonable speed the council may do the work itself. This provision bears on questions in this case for two reasons. First, it proceeds on the assumption that the works to which it refers - that is gas-pipes etc. in public roads - remain vested in the person who, by statutory or other authority, placed them there. Secondly, it means that the person in whom they are vested, in this case the respondent, has no absolute right to have them remain always in the same state and in exactly the same position under the road. The council can require them to be altered as it thinks the public interest requires. (at p131)

2. It seems to me futile really to try to classify and describe the respondent's rights in respect of mains and pipes under streets and raods according to the traditional categories and terminology of the law of real property. (at p131)

3. To start with, every public road in New South Wales is now vested in fee simple in the council of the city, municipality or shire where it is : Local Government Act, 1919, s. 232 : and see Sydney Corporation Act, ss. 76A and 76B, which displace the effect of Municipal Council of Sydney v. Young (1898) AC 457 A public road today serves purposes beyond that of a highway. Travellers have still their ancient common law liberties, to pass along its surface, on foot, on horseback or in vehicles, and to carry goods along it. But other persons, public utilities in particular, commonly have now statutory rights to carry electricity, water or gas by poles or pipes placed above or below its surface. If a road be resumed, members of the public who were wont to travel to and fro along it are no longer at liberty to do so ; but they cannot claim compensation on the basis of having lost an interest in land. Are the public utilities who lose their privilege to use it to convey their supplies by wires and pipes in a different position? The question must be judged having regard to rights and interests created by the law of today, without, it seems to me, trying to fit them into the law of feudal tenures and estates. Nevertheless we heard from both sides careful arguments based upon the older concepts and on the definition of "land" in the Interpretation Act which I have quoted above. I turn therefore to those arguments. (at p131)

4. It is well established that a gas company whose mains and pipes run beneath the surface of raods and streets is, for rating purposes, in occupation of the land where they lie. The same principle is applied to the mains and pipes of a water works. The earliest cases of gas mains of which I am aware are R. v. Birmingham Gas-Light and Coke Co. (1823) 1 B &C 506 (107 ER 187) and R. v. Brighton Gas Light and Coke Co. (1826) 5 B &C 466 (108 ER 173) To my mind it is pedantic logic-chopping to suggest that because a pipe is hollow the space of the earth which it occupies when embedded in the soil is not "land". A basement, a subway, a cellar or a tunnel can be the subject of occupation and ownership. It can be held for an estate in fee simple ; for a parcel of land can be defined by horizontal or by vertical boundaries : see Metropolitan Railway Co. v. Fowler (1893) AC 416 , and the cases mentioned by Roper J. in Resumed Properties Department v. Sydney Municipal Council (1937) 13 LGR (NSW) 170 But to say that a space below the surface of the earth may be a freehold is not to say that every space below the surface of the earth is the freehold of the person who has the use of it. And to say that the space which a gas main or pipe occupies is "land" is not to say that the gas company has an estate in that land. All that the decisions about rating really establish is that while a gas-pipe is embedded in the soil the land where it is in the occupation of the gas company. It is important to remember that in England rating law was, indeed still is, derived ultimately from the statute for the poor rate, 43 Eliz. I c. 2, modified and added to by later enactments. The criterion of liability there is ratable occupation. But in New South Wales it is now the owner, not the occupier, who is primarily liable for the local government rate. This was not always so. Under the Municipalities Act, 1897 (N.S.W.) the criterion was ratable occupation, as in England. It was in that situation that this Court decided in Borough of Glebe v. Lukey (1904) 1 CLR 158 , that a gas company having placed mains and pipes under a street pursuant to statutory powers was the occupier of land. I may interpolate here that gas companies in New South Wales are not now ratable as land owners or occupiers in respect of pipes under roads. They are now subject to a special provision, s. 171 of the Local Government Act. The history of this was summarized by Sugerman J. in Australian Gas Light Co. v. Annandale Municipal Council (1947) 16 LGR (NSW) 173 The section provides that where any rail, pipe, wire, etc. has been placed under or over any public street the local council may make "a fair annual charge upon the person for the time being in possession, occupation, or enjoyment of such rail, pipe, wire . . .". This provision clearly carries no implication that the possession, occupation or enjoyment of gas-pipes by a gas company is to be regarded as an estate in land. On general principle the exercise by the respondent of its statutory right to occupy part of a street vested in the council by placing its mains and pipes there did not, it seems to me, give it a corporeal hereditament. The hereditament of the whole of the street is in my opinion in the council. It could direct the gas company to alter the mains and pipes and their accessories - which I take it would include moving them and relaying them elsewhere in the street. The word "hereditament" and the word "estate" both appear to me inapt for the respondent's mere right of occupation. But it was said, if it was not a corporeal hereditament, it was an easement. And an easement is now regarded as a species of incorporeal hereditament although in Coke's time the name hereditament was denied it : see Challis, Law of Real Property, 3rd ed. (1911) (by Sweet), pp. 54, 55. But this can only be said of a true easement, for it is because the dominant tenement descends to the heir that the rights over the servient tenement are an hereditament. The gas company has however no true easement ; for there is no true dominant tenement unless it be said to be the gas works. However there is here an analogy to an easement as known to the common law ; and if it be necessary to given some name to the right in relation to land which the respondent enjoyed, it was what is nowadays very often called a "statutory easement" e.g., in the article "Statutory Easements" in The Conveyancer, vol. 20 (1956), p. 208 : see too Gale on Easements, 13th ed. (1959), p. 4 (n). Such so-called easements can, as is said in Halsbury's Laws of England, 3rd ed., vol. 12, p. 530, be "appurtenant only to some enterprise or even irrespective of any dominant tenement at all". They may sometimes be called easements in Acts of Parliament. It is now too late in the day for lawyers to complain as in 1916 that great real property lawyer Charles Sweet complained of the loose and inaccurate use of the term : see the Law Quarterly Review, vol. 32, p. 70. Scrutton L.J. said in Taff Vale Railway Co. v. Cardiff Railway Co. (1917) 1 Ch 299, at p 317 , "it is clear that Parliament can confer certain rights not previously known to the law, and can call them by what names it pleases, however previously inappropriate". But it need not give them any name. If it does not, there is no need for lawyers to insist on finding an old name for them, when they are in fact sui generis. I respectfully accept and need not repeat what Lord Evershed said in Newcastle-under-Lyme Corporation v. Wolstanton, Ltd. (1947) Ch 92 The North Shore Gas Act of 1875 gave no name to the rights it created. However the respondent hopes that by putting some known label on them they will be shown to create an "estate" or "interest" in "land" within the meaning of the Public Works Act. If one were to resort to Roman law terms, the right to have pipes run under public roads would be described as a ius in re aliena : it would be a servitude, but of a personal, not a praedial, character. But Lord St. Leonards' statement that "the category of servitude and easements must alter and expand with the changes that take place in the circumstances of mankind" (Dyce v. Lady James Hay (1852) 1 Macq 305, at pp 312, 313 ) must be read bearing in mind that English law does not, apart from statute, recognize an easement in gross. It is thus, I think, fallacious to say that because the privilege of the respondent can be called, or miscalled, an "easement" the rights of the gas company are an incorporeal hereditament and therefore an estate or interest in land. (at p134)

5. The company had something more than a mere revocable licence, and it would have had a right of action for any harm done to its mains and pipes by any unauthorized disturbance by the council or anyone else of the land in which they lay : see Gas Light and Coke Co. v. Vestry of St. Mary Abbott's, Kensington (1885) 15 QBD 1 The decision of the Privy Council in Toronto Corporation v. Consumers' Gas Co. (1916) 2 AC 618 makes this clear. But it is, I consider, a mistake to treat what was said by their Lordships in that case as in any way conclusive of this case. The question there was who should bear the cost of relaying gas-pipes made necessary by an alteration in the level of the street. In this case it is not disputed that that cost falls upon the appellant. The appellant stands in the shoes of the council to exercise the powers under the Local Government Act, s. 512. There was no similar provision in the Toronto Case (4). The appellant has in fact met the cost of re-locating the respondent's mains and pipes to meet the changed needs of the neighbourhood resulting from the construction of the expressway. I do not see how, that having been done, the respondent can have further compensation for the loss of its pipes where they lay. The difficulty of its case is made manifest by its suggestion that it would bring into account the sum it was allowed for the re-location and renewal. I respectfully agree with what Jacobs J. said in the Supreme Court on this. It may be that as is suggested there were some pipes which were taken or destroyed and which cannot be said to be represented by pipes in the new location - being as it were surplus to those necessary to meet the new conditions of the neighbourhood. If so, the respondent may be entitled to some compensation for their residual value. I express no opinion on that. The facts before us do not enable me to do so. In any event any assessment on that hypothesis is altogether different from a valuation of an estate or interest in land. (at p135)

6. The real grievance of the respondent is that people have had their houses and business premises taken to make room for the new expressway. As a result it has lost customers. Its grievance is understandable ; but its loss of potential profits cannot be recovered by a claim that it has lost land. Its loss arises not because its land has been taken but because the land of other people has been. (at p135)

7. I would allow the appeal. (at p135)

Orders

Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) discharged. In lieu thereof order that the rule nisi be discharged with costs.