Dowty Boulton Paul Ltd v Wolverhampton Corporation (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE LAWTON |
| Judgment Date | 28 February 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0228-3 |
| Date | 28 February 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0228-3
Lord Justice Russell (Not present),
Lord Justice Buckley and
Lord Justice Lawton
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Mr. Justice Plowman.
Mr. KENNETH BAGITALL and Mr. ROBERT PRYOR (instructed by Messrs Gregory, Rowcliffe - Co., Agents for Messrs Midwinter, Jones &Co.) appeared on behalf of the Appellants (Plaintiffs).
Mr. JEREMIAH HARMAN, Q. C. and Miss. L. S. APPLEBY (instructed by Messrs Sharpe, Pritchard - Co.) appeared on behalf of the Respondents (Defendants).
LORD JUSTICE RUSSELL (read by Lord Justice Buckley): This case came before the Vice-Chancellor in November, 1970, on a motion for interlocutory relief which was refused: see 1971 1 Weekly Law Reports, 204. The action was tried before Mr. Justice Plowman in Hay, 1972, and was dismissed: see 1972 3 Weekly Law Reports, 321. That dismissal is the subject of the plaintiffs' present appeal.
As will be seen from those reports, the position is briefly as follows. The plaintiffs in 1935 were aeroplane manufacturers at Norwich. At Government request, they sought a suitable place in the Midlands to carry on their business: they would need a suitable existing factory, or a suitable site on which to build one, an adjacent airfield mainly for testing the aircraft they manufactured, and an available pool of skilled labour. Wolverhampton Corporation was minded to establish a municipal aerodrome and welcomed the establishment of a factory which would be a substantial employer of labour in the area.
In the outcome, arrangements were made to suit both the Corporation and the plaintiffs. The Corporation acquired or appropriated at Barnhurst what became the site of the Wolverhampton Aerodrome for the purpose of its use as an airfield, and the conveyance of 1936, of which details are to be found in the reports below, was executed, containing inter alia an obligation on the plaintiffs to build a factory for their business on the site thereby conveyed to them, a right of way over land of the Corporation from that site to the airfield, and a right for the plaintiffs to use the airfield for flights for the purposes of their business at the factory. The factory was built and the plaintiffs' business was started up there,manufacturing aeroplanes: the Corporation licensed, managed and controlled the airfield, and the plaintiffs used it for the purpose of their business for testing and so forth. At the outbreak of war the airfield was requisitioned by the Air Ministry and used by it for training purposes. In 1953 it was de-requisitioned and reverted to the control and management of the Corporation as the Municipal Airport, the plaintiffs continuing their business at the factory. By 1957 the plaintiffs were no longer manufacturing aircraft, and thereafter used the factory for making airframes or parts thereof and hydraulic equipment for aircraft and other uses: the plaintiffs' need to use the aerodrome for test flying therefore no longer presently existed. The plaintiffs' use of the airfield was mainly for flying executives and staff in a group-owned plane to and from Cheltenham, where there was another centre of the group, or to and from the Continent, in particular Toulouse, in connection with hydraulic equipment for Concorde: such Continental flights involved landing each way at some other airfield in England for customs clearance. Prior to 1970 the Corporation was arriving at the conclusion that the Barnhurst site was not worth its upkeep as a municipal airport, and it has not formed any part of the plaintiffs' case that when it was closed as such it was, on any construction of section 163 of the Local Government Act, 1933, still required for the purpose of a municipal airport. The evidence as to recent user of the airfield by the plaintiffs for the purpose of their business at the factory was that there were the following flight movements, i. e. take off or landing in recent years: 1967 - 26; 1968 - 56; 1969 - 16; 1970 - nil. These figures may not be absolutely complete, but to judge fromthe evidence as a whole they appear to me sufficiently to indicate the small degree of flight user by the plaintiffs. I should say that the plaintiffs never operated a flying school and so did not pay the £50 per annum for that user.
For some years the Corporation had delegated or subcontracted the management and control of the airfield to Don Everall (Aviation) Limited. The Corporation decided, with effect from the end of December 1970, not to renew this management arrangement, not to continue the airfield as a municipal aerodrome, and no longer to license the airfield, nor to maintain it as such. At the same time the Corporation resolved to exercise its powers under section 163 to re-appropriate the airfield "for planning purposes". That section permits the site to be so re-appropriated by the Corporation if it is "not required for the purposes for which it was acquired or… appropriated": but the section also contains a proviso that such re-appropriation was subject to the rights such as were conferred upon the plaintiffs by the 1936 conveyance in respect of the airfield site. Accordingly, thus far the re-appropriation, if valid, does not impinge on the plaintiffs' rights in respect of the airfield and is no breach of contract or obligation by the Corporation. But the plaintiffs are anxious to establish that the re-appropriation was invalid for the following reason. The "planning purpose" that the Corporation has in mind is a comprehensive development of the area for housing, including streets, shops, schools and so forth. In order to achieve this in spite of the plaintiffs' rights they must (a) have validly re-appropriated, (b) obtain planning permission: the latter must come from the Secretary ofState, since the re-appropriation involves departure from the relevant development plan. Application for such permission has been made: an inquiry has been held and the Inspector has reported: the Secretary of State is deferring decision pending this litigation.
Now the crucial point is that if and when that permission is granted, the Corporation will by virtue of section 127 of the Town and Country Planning Act, 1971, be able to carry out the necessary works and effectively to destroy such airfield rights as the plaintiffs have, on payment of compensation as provided by that section. It is in order to avoid that possible - it may be probable - outcome that the plaintiffs contend that there has not been a valid appropriation for planning purposes on the ground that it could not be said that the airfield site is not required for use as an airfield, having regard to the existence of the rights of the plaintiffs under the 1936 conveyance which exist and are expressed to endure for the rest of the 99-year period. It was contended that it is for the Court to decide whether the factual precondition of non-requirement existed: that it was not necessary to show that the Corporation had acted mala fide, nor that no local authority on the facts could reasonably form the view that land was not required for airfield purposes: that the airfield purpose of the original appropriation or acquisition included flight use by the plaintiffs who still require so to use it, and accordingly the airfield purpose was not spent: that if the question was whether the Corporation required the I land for the airfield purpose, they did so require it in order that they could continue to give effect to their obligations tothe plaintiffs: that on the evidence the land was required for use as such by the plaintiffs both now and potentially to a greater extent in the future should they revert to manufacture of aircraft requiring flight testing.
The Corporation contended, upon the basis of the decision of Mr. Justice Maugham in Attorney-General v. Manchester Corporation (1931 1 Chancery, 254), that the question whether the land was not relevantly required was for the decision of the local authority acting bona fide and not for the Court: and further that in any event the evidence as to airfield user by the plaintiffs in the present and future was so exiguous, tenuous and speculative that on any sensible construction of section 163, if it was for the Court, the land was not relevantly required.
Some matters somewhat peripheral to the essential question were debated as to the rights conferred by the 1936 conveyance on the plaintiffs. Since December, 1970, there has been no use at all of the airfield for flights by the plaintiffs. I understand that even if the field were now sought to be used for flying in and out of the plaintiffs' personnel in the plaintiffs' own aircraft - in which case I gather no licence as an airfield is required - it could not be so used unless the grass is mown at least for appropriate runways. If the Corp ration refuse (as they do) to do that - I suppose probably in breach of its convenant to do all in its power to maintain the surface in a satisfactory state for flight use by the plaintiffs - and if there is no right of self help in that regard in the plaintiffs, I apprehend that it would be on any footing difficult to deny that the land was not relevantlyrequired. On this point three questions were debated: whether a right such as the present one if granted is capable in law of being an easement: if so, whether it was purported to be granted, or was left as a matter purely of covenant: and whether, even if...
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