Allen v Gulf Oil Refining Ltd

CourtHouse of Lords
JudgeLord Wilberforce, Lord Diplock, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Roskill
Judgment Date29 Jan 1981
JurisdictionEngland & Wales

[1981] UKHL J0129-1

House of Lords

Lord Wilberforce

Lord Diplock

Lord Edmund-Davies

Lord Keith of Kinkel

Lord Roskill

Allen
(Respondent)
and
Gulf Oil Refining Limited
(Appellants)
Lord Wilberforce

My Lords,

1

This action is brought by an inhabitant of the small village of Waterston, in the County of Dyfed, complaining that the appellants, a branch of a multinational oil company, are committing a common law nuisance through the construction and operation of an oil refinery. Many other persons have brought similar actions. The appellants have installed this refinery on land immediately adjoining the village and extending over more than 400 acres: it consists of a vast complex of jetties on Milford Haven harbour, where the largest oil tankers can deliver crude oil, refining plant, pipes, pumping apparatus, storage tanks, a petrochemical plant, and a private railway with sidings which passes close to the village before connecting with the main British Railways line. It is alleged by the plaintiff, but not yet proved, that the operation of the refinery causes a nuisance by smell, noise and vibration, and at this point in the action, it must be assumed�but remains a matter of assumption only�that the allegation is true.

2

My Lords, I and others of your Lordships have often protested against the procedure of bringing, except in clear and simple cases, points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example. The question as originally framed was clearly inept. It was recast by Kerr J. into an improved form. But both judges in the Court of Appeal found it either unintelligible or unanswerable: so I believe do some at least of your Lordships. The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance.

3

The question as framed by Kerr J. reads "Can the defendants rely on the Gulf Oil Refining Act 1965 as having authorised the construction and operation of an oil refinery at Waterston �". In this House both sides accepted that this is incomplete and they have endeavoured to recast, or at least to expand it. I quote from the respondent's printed case:

"The issue arising in this appeal is whether the appellants, Gulf Oil Refining Limited ("Gulf") can rely upon the Gulf Oil Refining Act 1965 ("the Act") as having authorised the construction and operation of an oil refinery at Waterston, Milford Haven in the County of Dyfed. Gulf seek to rely on the Act as providing the defence of 'statutory authority' to Mrs. Allen's claims for nuisance arising out of the operation of the refinery in fact constructed and operated by Gulf at Waterston. Gulf contends, in effect, that by reason of the Act any inevitable nuisance caused by the construction or operation of the refinery must be borne by Mrs. Allen without compensation."

4

The appellants' formulation is much to the same effect. I think that these at any rate give your Lordships a workable indication of what is needed. That must be in the form of a direction of law on which the judge who is to try the case can proceed.

5

The case, as a matter of law, depends upon the construction of the Act of 1965.

6

We are here in the well charted field of statutory authority. It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away. ( Hammersmith & City Railway Company v. Brand (1869) L.R. 4 H.L. 171, 215 per Lord Cairns.) To this there is made the qualification, or condition, that the statutory powers are exercised without "negligence"�that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons. ( Geddis v. Proprietors of the Bann Reservoir (1878) 3 App. Cas. 430, 455 per Lord Blackburn.) It is within the same principle that immunity from action is withheld where the terms of the statute are permissive only, in which case the powers conferred must be exercised in strict conformity with private rights: ( The Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193).

7

What then is the scope of the statutory authority conferred in this case? The Act was a private Act, promoted by the appellants, no doubt mainly in their own commercial interests. In order to establish their projected refinery with its ancillary facilities (jetties, railway lines, etc.), and to acquire the necessary land, they had to seek the assistance of Parliament. And so they necessarily had to satisfy Parliament that the powers they were seeking were in the interest of the public to whom Parliament is responsible. The case they undertook to make, which they had to prove, and which, as the passing of the Act shows, they did prove, is shown by the Preamble. This recites "increasing public demand for [the company's] products in the United Kingdom" and that "it is essential that further facilities for the importation of crude oil and petroleum products and for their refinement should be made available" (emphasis supplied). It proceeds to recite the intention of the Company to establish a refinery at Llanstadwell, that it was expedient that in connection therewith the company should be empowered to construct works including jetties for the accommodation of vessels (including large tankers) and for the reception from such vessels of crude oil and petroleum products for the proposed refinery and for conveying oil and petroleum products therefrom: that it was expedient for the company to be empowered to acquire lands: and that plans � showing � the lands which may be taken or used compulsorily under the powers of the Act for the purposes thereof � had been deposited.

8

My Lords, all of this shows most clearly that Parliament considered it in the public interest that a refinery, not merely the works (jetties etc.), should be constructed, and constructed upon lands at Llanstadwell to be compulsorily acquired.

9

To show how this intention was to be carried out I need only quote section 5:

"5.�(1) Subject to the provisions of this Act, the Company may enter upon, take and use such of the lands delineated on the deposited plans and described in the deposited book of reference as it may require for the purposes of the authorised works or for the construction of a refinery in the parish of Llanstadwell in the rural district of Haverfordwest in the county of Pembroke or for purposes ancillary thereto or connected therewith.

(2) The powers of compulsory acquisition of land under this section shall cease after the expiration of three years from the 1st October, 1965".

10

The lands in question were the specific lands�about 450 acres in extent�shown with precise detail in the deposited plans.

11

I cannot but regard this as an authority�whether it should be called express or by necessary implication may be a matter of preference�but an authority to construct and operate a refinery upon the lands to be acquired�a refinery moreover which should be commensurate with the facilities for unloading offered by the jetties (for large tankers), with the size of the lands to be acquired, and with the discharging facilities to be provided by the railway lines. I emphasize the words a refinery by way of distinction from the refinery because no authority was given or sought except in the indefinite form. But that there was authority to construct and operate a refinery seems to me indisputable.

12

The respondent's contention against this is a curious one. She points to the sections (mainly section 15) dealing with works: these specify in great detail what is to be carried out�in the way of construction of jetties and of railway lines. Here, she says, is plain statutory authority of the kind conferred in the well-known cases concerned with railways. By contrast there is no authority to construct or operate a refinery�not even by implication. There is nothing but power to acquire lands. The construction of the refinery is left entirely to the promoters�there is no specification of the size or nature of the refinery, they have "carte blanche" and therefore the intention must be that they must construct it with regard to private rights. The case is similar, she says, to that of Metropolitan Asylum District v. Hill (u.s.). This argument has remarkable consequences. It follows that if the plaintiff, or any other person, can establish a nuisance, he or she is entitled (subject only to a precarious appeal to Lord Cairns' Act) to an injunction. This may make it impossible for the refinery to be operated: that in turn would leave the appellants as the owners and occupiers of a large area of land which they have compulsorily acquired under the authority of the Act of 1965 for the purpose of a refinery, and which, in accordance with well-known principles, they could not use for any other purpose. Such consequences must be accepted if they clearly flow from the terms of the Act.

13

But I must say that I find the construction which would give rise to this result to be not only far from clear but a most artificial reading of the enactment. It is true, and at one time I was impressed by the point, that, by contrast with the detailed specification given to the "works"�by description, plans, levels etc., the Act conspicuously does not define or specify the refinery even in general...

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