Archibald Russell Ltd, v Nether Pollok Ltd
| Jurisdiction | Scotland |
| Judgment Date | 23 July 1937 |
| Docket Number | No. 1. |
| Date | 23 July 1937 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION. Railway and Canal Commission.
Mines and MineralsCoal MinesApplication to Railway and Canal Commission for right to work coalCondition precedent to applicationRefusal of owner to grant rightReasonableness of refusalWhether reasonableness falls to be determined from situation when refusal given or after expediency of grant in national interest established by inquiryMines (Working Facilities and Support) Act, 1923 (13 and 14 Geo. V, cap. 20), secs. 1 (1), 4 (1) (d) and 6 (1)Mining Industry Act, 1926 (16 and 17 Geo. V, cap. 28), sec. 13 (1) and (3).
By sec. 1 of the Mines (Working Facilities and Support) Act, 1923, (hereafter referred to as the principal Act) the Railway and Canal Commission may, where there is danger of minerals being left permanently unworked, confer a right to work them in the manner and subject to the provisions thereinafter appearing.
Sec. 13 of the Mining Industry Act, 1926, which as regards coal widens the grounds on which such an order may be made, provides, by subsec. (1), that any person desirous of searching for or working any coal may, under the provisions of Part I of the principal Act, apply for leave to do so, and empowers the Commission, subject to the provisions of the principal Act, to grant the right if they consider it expedient in the national interest that the right should be granted.
Sec. 4 of the principal Act enacts:"(1) Neither the right to work minerals nor an ancillary right shall be granted under this Act unless it is shown that it is not reasonably practicable to obtain the right in question by private arrangement" for the reason, among others, "(d) that the person with power to grant the right unreasonably refuses to grant it or demands terms which having regard to the circumstances are unreasonable."
Sec. 6 (1) of the principal Act authorises the Commission, if satisfied that statutory requirements are complied with and that it is expedient in the national interest that the right applied for should be granted, to grant the right on such terms and conditions as they may think fit.
In an application for leave to work minerals under the provisions of the Acts of 1923 and 1926, the applicants averred that it was not reasonably practicable to obtain the right by private arrangement, in respect (1) of the unreasonable refusal of the proprietors of the larger portion of the land involved, and (2) of the number of the proprietors of the remaining lands. The application was opposed by these proprietors and by other parties interested, on the ground that it was expedient in the national interest that the land in question should be reserved for housing purposes rather than developed as a coalfield. The Commission, after inquiry, dismissed the application on the ground of want of jurisdiction, in respect that the applicants had failed to establish, in terms of the Act of 1923, that, as at the date when permission to work was refused by the proprietors, their refusal was unreasonable, and that the question of national interest did not affect the reasonableness or unreasonableness of that refusal.
In an appeal raising the question as to the elements to be considered in determining what was unreasonable refusal within the meaning of sec. 4 (1) (d) of the Act of 1923
Held, upon an examination of the terms of the Acts of 1923 and 1926, that the Commission were not entitled, in dealing with the question of reasonableness, to limit their consideration to the situation when the refusal by the proprietors was made, but were bound first to consider, upon the facts ascertained at the inquiry, with which of the competing proposals the balance of national interest lay, and thereafter to dispose of the question in the light of the view thus reached; and case remitted back to the Commission to proceed as accords.
Archibald Russell, Limited, coalmasters, applied to the Railway and Canal Commission for a right to work minerals at Barrhead and Thornliebank, and for certain ancillary rights, under the provisions of the Mines (Working Facilities and Support) Act, 1923, and the Mining Industry Act, 1926.1 The minerals the
right to work which was sought consisted of the whole seams of coal lying under 1800 acres of land in the County of Renfrew, of which 1100 acres belonged to Nether Pollok, Limited, as surface and mineral owners, and the remaining 700 acres to various persons as owners of the surface or mineral rights. All these lands were contiguous. Immediately adjacent to Nether Pollok was land belonging to Glasgow Corporation. The ancillary rights asked for were concerned with the actual working of the minerals, and included a right to sink boresThe applicants averred, inter alia, that it was not reasonably practicable to obtain by private arrangement the right to work the minerals or the ancillary rights applied for, in respect (1) of the unreasonable refusal of Nether Pollok, Limited, to grant these rights, and (2) of the number of proprietors of the foresaid 700 acres. In support of their application, they contended that the coal should be worked, not only because it was a national asset, but because it was essential to industry to develop a new coalfield near Glasgow to replace the rapidly diminishing resources in the Lanarkshire coalfield.
Objections to the application were lodged by, inter alios,Nether Pollok, Limited, who maintained that it was expedient in the national interest that the land should be used for housing purposes rather than for mineral development; Glasgow Corporation, who submitted a similar contention; and the County Council of Renfrew, who contended that, on grounds both of national and local interest, the area should be used for building development.
On 16th April 1937, after hearing counsel, and after evidence for the applicants and the objectors, the Commission dismissed the application.
At advising on 23rd July 1937,
LORD JUSTICE-CLERK (Aitchison).This is an appeal from an Order of the Railway and Canal Commission, dated 16th April 1937, dismissing an application by the appellants, Archibald Russell, Limited, for a right to work minerals, and for certain ancillary rights, under the provisions of the Mines (Working Facilities and Support) Act, 1923, and the Mining Industry Act, 1926. The ground of the judgment appealed from is that the Commissioners had no jurisdiction to grant the application of the appellants, in respect that the appellants had failed to show that the owners of the minerals, the respondents Nether Pollok, Limited, who are the persons with power to grant the right, had unreasonably refused to grant it in the sense of section 4 (1) (d) of the Mines Act, 1923. The case turns on the true meaning of that subsection read in the light of the Mines Act, 1923, as a whole, and of the Mining Industry Act, 1926. The minerals which the appellants desire to work consist of a field of coal lying under approximately 1800 acres of land in the Parish of Eastwood and County of Renfrew, belonging as regards 1100 acres to Nether Pollok, Limited. There are other proprietors of minerals and surface, involving the additional 700 acres,
but the question of the appeal arises upon the attitude of Nether Pollok. The Corporation of Glasgow own land immediately adjacent to the boundary on the north and east of the Nether Pollok estate. Theirlocus standi to appear and oppose the application of the appellants was conceded in this Court, and before the CommissionThe Mines Act, 1923, and the Mining Industry Act, 1926, are legislation which was designed to override private rights in minerals where there was a danger of minerals being left permanently unworked (Act 1923, section 1 (1)). Under the Act of 1923 there were certain conditions precedent (section 1 (1) (a) and (b)) which no longer apply in an application for the working of coal. So far as this application is concerned, the matter is now regulated by the Act of 1923 read in conjunction with the Act of 1926. Section 13 of the Act of 1926 provides by subsection (1) that "any person who is desirous of searching for or working, either by himself or through a lessee, any coal may, under and in accordance with Part I of the Mines (Working Facilities and Support) Act, 1923 (in this part of this Act referred to as the principal Act), make an application to search for or work the coal, and, on such application being referred to the Railway and Canal Commission under the principal Act, the Commission may, subject to the provisions of the principal Act, grant the right if they consider that it is expedient in the national interest that the right should be granted to the applicant." Subsection (3) provides:"An ancillary right may be granted to a person to whom a right of working coal is granted in pursuance of this part of this Act at the time when such last-mentioned right is granted or at any subsequent time." This power of granting the right to work coal, or an ancillary right, is subject to a very important limitation contained in section 4 of the principal Act (Mines Act, 1923) and in particular subsection (1) (d) thereof, upon the terms of which the question in this case mainly turns.
Before examining section 4 (1) (d) it will be convenient to look at sections 5 and 6 of the Mines Act, 1923. Section 5 deals with applications for rights, which must be made to the Board of Trade, by any person who is desirous of working, either by himself or through a lessee. Subsection (3) directs that applications shall set forth the circumstances alleged to justify the grant of the right. Subsection (4) requires the Board to consider the application, and refer the matter to the Railway and Canal Commission, unless they are of opinion that aprima facie case is not made out. There then follows to subsection (4) this proviso:"Provided that where it is alleged that the right in question cannot be obtained by reason of any person not having the...
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