Belfast Corporation v O. D. Cars Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Radcliffe,Lord Keith of Avonholm |
| Judgment Date | 14 December 1959 |
| Judgment citation (vLex) | [1959] UKHL J1214-1 |
| Court | House of Lords |
[1959] UKHL J1214-1
Viscount Simonds
Lord Radcliffe
Lord Cohen
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Lord Mayor, etc., of City of Belfast against O.D. Cars Limited, that whereas Wednesday the 11th day of November last was appointed for hearing Counsel upon the Petition and Appeal of the Lord Mayor, Aldermen and Citizens of the City of Belfast, of City Hall in the City of Belfast in Northern Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal in Northern Ireland of the 26th of March 1959, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of O.D. Cars Limited, lodged in answer to the said Appeal; in which said Appeal Her Majesty's Attorney-General for Northern Ireland appeared as amicus curiae; Counsel were accordingly called in; and Counsel being heard to make an application to present the said Petition and Appeal, in accordance with the provisions of section 49 of the Government of Ireland Act 1920, notwithstanding that the time limited by Standing Order No. 1 for so doing had expired; and the Committee being of opinion, That leave to present the said Petition and Appeal should be given; and after hearing Counsel upon the merits of this Cause as well on Thursday the 12th, as on Monday the 16th, Tuesday the 17th, Wednesday the 18th and Thursday the 19th, days of November last; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That leave to present the said Petition and Appeal be given; And it is further Ordered, That the said Order of Her Majesty's Court of Appeal in Northern Ireland of the 26th day of March 1959, in part complained of in the said Appeal, be, and the same is hereby, Discharged: And it is further Ordered, That the First Question in the Case Stated by the Arbitrator be answered in the Negative, provided that the Arbitrator is satisfied by proper evidence that the Ministry of Health and Local Government for Northern Ireland considers the provisions reasonable for the purpose: And it is further Ordered, That the Second Question in the Case Stated by the Arbitrator be answered in the Negative: And it is further Ordered, That the Case be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice in Northern Ireland with a Direction that with these answers the Case be remitted to the Arbitrator for further determination and answer: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellants three-quarters of the Costs incurred by them in the Courts below: And it is also further Ordered, That there be no Costs of the Appeal to this House.
My Lords,
The facts in this case, which give rise to some difficult questions, can be shortly stated.
The Respondents, a limited company registered in Belfast, own in fee farm certain land at Alexandra Park, Belfast. On buildings erected on that land they have for many years carried on the business of garage proprietors and general motor engineers. On the 9th February, 1954, they made an application to the Appellants, the Belfast Corporation, for permission to erect on the land further industrial and commercial premises, viz. lock-up shops on Antrim Road and factories or warehouses on the back portion. The application was made pursuant to the provisions of section 2 of the Planning (Interim Development) Act (Northern Ireland), 1944, to the Appellants as the Interim Development Authority. Such an application is known as an Interim Development application. I will refer later to this Act.
On the 2nd March, 1954, the Appellants refused the application on the grounds ( a) as to the lock-up shops, that the height and character of the proposed development would not be in accordance with their requirements for the site, namely, development to be in shops with dwellings over, minimum height 25 feet, and ( b) as to the industrial or commercial use of remainder of site, that the site was zoned as residential and that the character and user of the proposed development would be incompatible with such zoning.
This refusal led to a claim for compensation for injurious affection under the Act which in accordance with its provisions was referred to the Official Arbitrator appointed thereunder. Before I narrate the proceedings, which led to this appeal, I must refer to the relevant statutory provisions of the Planning and Housing Act (Northern Ireland), 1931, and the Planning (Interim Development) Act (Northern Ireland), 1944, which I will call the 1931 Act and the 1944 Act. The former Act, after providing for the making of planning schemes to be prepared and adopted by local authorities and to be approved by the Minister and sundry other relevant matters, by section 9 enacted that any person whose property is injuriously affected by the coming into operation of a planning scheme shall, if he makes a claim for the purpose within the time therein mentioned, be entitled to obtain compensation in respect thereof from the responsible authority. But this right is subject to the limitation contained in section 10, which provides by subsection (1) that where property is alleged to be injuriously affected by reason of any provisions contained in a planning scheme, no compensation shall be paid in respect thereof if or so far as the provisions are also contained in any public, general, or local Act in force in the area or otherwise as therein mentioned and by subsection (2) (which is the subsection relevant to this appeal and must be set out verbatim) as follows:—
"10.—(2) Property shall not be deemed to be injuriously affected by reason of the coming into operation of any provisions inserted in a planning scheme, which prescribe the space about buildings or limit the number of buildings to be erected, or prescribe the height or character or user of buildings, or prescribe a standard of net annual value for buildings, and which the Ministry, having regard to the nature and situation of the land affected by the provisions, considers reasonable for the purpose."
Development under the Act of 1931 made slow progress and was in due course supplemented by the Act of 1944. Section 1 (1) of that Act deems all land which was not the subject of a planning scheme under the earlier Act or of a resolution to prepare and adopt such a scheme to be subject to a resolution to prepare a planning scheme under the Act. Section 2 directs the Ministry to make a general interim development Order with respect to land to which such a resolution applies and provides that such an order may empower any local authority specified therein to permit the development of land in accordance with the provisions thereof. In accordance with the duty thus placed upon it the Ministry on the 10th July, 1944, made the Planning (General Interim Development) Order (Northern Ireland), 1944 (S.R. & O. 1944 No. 58), which empowered the Appellants to grant permission for the development of land within the county borough of Belfast. I need refer no more to the Act of 1944 except to set out the section under which, as I have already said, the Respondents made the claim for compensation now under review. That section provided by subsection (4), so far as material, as follows:—
"6.—(4) Where … an interim development application is refused … then, the applicant … shall, if he makes a claim for the purpose be entitled to obtain from the local authority such compensation in respect of any injurious affection of his property by reason of the aforesaid decision as he would be entitled to obtain under the principal Act [the Act of 1931] if such injurious affection had been suffered as a consequence of the coming into operation of a planning scheme …"
The claim for compensation having been made and refused upon the grounds that I have stated, a number of questions were raised before the Arbitrator which led him without proceeding to an award to state a consultative case for the opinion of the Court in which he posed two questions as follows:—
"1. Whether I am entitled to award compensation to the claimant for injurious affection of the said land.
2. Whether the evidence of Mr. A. P. Fitzgerald is sufficient to satisfy the requirements of section 10 (2) of the Planning and Housing Act (Northern Ireland) 1931."
The second question must appear at the present stage of my narrative somewhat cryptic. It is, in my opinion, of a formal character and I will defer consideration of it until I have disposed of the important matters that arise under the first question. These are, first, a question arising on the construction of the Act of 1944, viz. whether section 6 (4) of that Act incorporates a reference to section 10 (2) of the Act of 1931 as well as to the compensatory provisions of section 9, and secondly, whether section 10 (2) is a valid enactment having regard to the provisions of section 5 of the Government of Ireland Act, 1920. The far-reaching importance of the second question is obvious.
My Lords, upon the first of these questions I entertain no doubt, and I cannot state the answer to it in a manner more clear and comprehensive than the learned Lord Chief Justice has done. Section 6 (4) of the later Act does incorporate section 10...
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