Lord Advocate v Dumbarton District Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Griffiths,Lord Ackner,Lord Jauncey of Tullichettle,Lord Lowry
Judgment Date30 Nov 1989
Judgment citation (vLex)[1989] UKHL J1130-4
Docket NumberNo. 1.

[1989] UKHL J1130-3

House of Lords

Lord Keith of Kinkel

Lord Griffiths

Lord Ackner

Lord Jauncey of Tullichettle

Lord Lowry

Lord Advocate
(Appellant)
and
Dumbarton District Council
(Respondents) (Scotland)
Lord Advocate
(Appellant)
and
Strathclyde Regional Council
(Respondents) (Scotland)
Lord Keith of Kinkel

My Lords,

1

In 1985 the Ministry of Defence decided to erect an improved security fence at its submarine base at Faslane, Dumbartonshire. Part of the fence ran alongside the A814 road between Helensburgh and Garelochhead. The Ministry's intention came to the notice of Strathclyde Regional Council as roads authority for the area, and the council (hereinafter referred to as "Strathclyde") learnt that it was proposed to place temporary works on part of the A814 road in connection with the project. Strathclyde intimated to the Ministry that this would require its permission as roads authority under certain provisions of the Roads (Scotland) Act 1984, but the Ministry replied that these provisions did not bind the Crown. Early in 1986 the Ministry, acting through the Property Services Agency, instructed contractors, Tarmac Construction Ltd., to carry out the fencing work. The contractors took possession of a one mile stretch of the westernmost carriageway of the A814 road by coning it off, and erected on it a temporary wire mesh fence eight feet high and also a continuous metal safety barrier. They also placed within the area so enclosed portacabins and various building and other materials.

2

By letter dated 17 March 1986 Strathclyde gave notice to the contractors in terms of section 87 of the Act of 1984 that by 25 March the various structures on the road must be removed and the road reinstated to its previous condition, failing which the council would itself do so in terms of section 141 of the Act. A similar notice was at the same time sent to the Ministry of Defence.

Section 87 of the Act of 1984 provides:

"(1) Without prejudice to sections 59 and 129(2) of this Act, where a structure has been erected, deposited or placed on a road otherwise than under or by virtue of an enactment the roads authority may, by notice, require that within such period as may be specified in the notice the person having control or possession of the structure —

( a) shall remove it; and

( b) if the authority consider reinstatement of the road to be requisite, shall carry out such reinstatement.

(2) In subsection (1) above, "structure" includes any machine, pump, post or other object of such a nature as to be capable of causing obstruction; and a structure may be treated for the purposes of that subsection as having been erected notwithstanding that it is on wheels."

3

Section 141 provides that where by notice under the Act a road authority has required works to be executed within a specified time, and the works are not timeously executed, then the authority may itself execute them.

Section 59 of the Act, so far as material, provides:

"(1) Subject to subsection (6) below, nothing shall be placed or deposited in a road so as to cause an obstruction except with the roads authority's consent in writing and in accordance with any reasonable conditions which they think fit to attach to the consent.

(2) A person who contravenes subsection (1) above commits an offence.

(3) Without prejudice to subsection (2) above, a person who contravenes subsection (1) above may be required by the roads authority or by a constable in uniform to remove the obstruction forthwith, and commits an offence if he fails to do so.

(4) Where-

( a) a requirement under subsection (3) above is not complied with;

( b) the person who placed or deposited the obstruction cannot be readily traced; or

( c) the case is one of emergency,

the roads authority or a constable may remove the obstruction (or cause it to be removed) and recover such expenses as are reasonably incurred in so doing from the said person."

…"

4

Following some negotiations between the Ministry and Strathclyde, some adjustments were made to the works on the road which satisfied the latter that no traffic hazard existed, but they refused to withdraw the notice requiring that the works be removed.

5

In the meantime Dumbarton District Council, as local planning authority, had also joined in on the act. On 9 May 1986 this Council ("Dumbartonshire") served on the Property Services Agency an enforcement notice under section 84 of the Town and Country Planning (Scotland) Act 1972 requiring that all fencing and other materials should be removed from the A814 within 28 days after 9 June 1986, and the road restored to its former unrestricted use as a public highway. On the same date Dumbartonshire served on the Property Services Agency a stop notice under section 87 of the Act of 1972 as amended requiring cessation of the unauthorised charge of use.

6

Section 84 of the Act of 1972, as amended by section 172(2) of, and Schedule 29 to, the Local Government (Scotland) Act 1973 provides, so far as material:

"(1) Where it appears to the planning authority that there has been a breach of planning control after the end of 1964, then, subject to the following provisions of this section, the authority, if they consider it expedient to do so having regard to the provisions of the development plan and to any other material considerations, may serve a notice under this section (in this Act referred to as an 'enforcement notice') requiring the breach to be remedied.

(2) There is a breach of planning control if development has been carried out, whether before or after the commencement of this Act, without the grant of planning permission required in that behalf in accordance with Part III of this Act, or if any conditions or limitations subject to which planning permission was granted have not been complied with.

…"

7

Section 87(1) of the same Act, as substituted by section 4 of the Town and Country Planning (Scotland) Act 1977, provides:

"Subject to the provisions of subsection (2) of this section, where a planning authority have served an enforcement notice, they may at any time before it takes effect serve a further notice (to be referred to as a 'stop notice') referring to the enforcement notice, a copy of which shall be enclosed therewith, for the purpose of prohibiting the carrying out or continuing of any activity or part of any activity which either is alleged in the enforcement notice to constitute or involve a breach of planning control or is so closely associated therewith as to constitute substantially the same activity."

8

By virtue of Section 20(1) of the Act, planning permission is required for the carrying out of any development of land, "development" being defined by Section 19. It is not disputed that the works carried out by the Ministry of Defence contractors on the A814 constituted development of land within the meaning of that section.

9

In these circumstances the Lord Advocate, as representing the Secretary of State for Defence, presented in the Court of Session separate petitions for judicial review directed against Strathclyde and against Dumbartonshire. The Strathclyde petition sought (1) declarator that sections 58, 59, 85, 87 and 141 of the Roads (Scotland) Act 1984 had no application to works carried out by or on behalf of the Crown, (2) declarator that the purported notice under section 87 of the Act dated 17 March 1986 and addressed to Tarmac Construction Ltd. was null and of no effect, and (3) interdict against Strathclyde or anyone on their behalf taking any steps to enforce that purported notice. The Dumbartonshire petition sought similar declarators in respect of sections 19, 84 and 87 of the Town and Country Planning (Scotland) Act 1972 and the purported enforcement notice and stop notice dated 9 May 1986, and interdict against any steps being taken to enforce these notices.

10

In the Strathclyde petition interim interdict was granted by Lord Cullen on 25 March 1986, while in the Dumbartonshire petition Lord Clyde on 16 May 1986 refused interim interdict but granted interim suspension of the enforcement and stop notices. First hearings in the two petitions took place together before Lord Cullen on 12 and 13 June 1986, and on 4 September 1986 he found in favour of the Crown that it was not bound by the relevant enactments, and accordingly held that all the notices complained of were null and of no effect and granted permanent interdict as sought. The two Councils reclaimed, and on 5 February 1988 the First Division (Lord Emslie, Lord President, Lord Grieve and Lord Brand) in each case recalled the interlocutor of the Lord Ordinary and refused the prayer of the petition, holding that the relevant enactments did bind the Crown. The Lord Advocate now appeals to your Lordships' House.

11

The improved security fence at the Faslane submarine base has now long since been completed, and the A814 road restored to its original condition. So in a sense the whole matter has become academic. But the question of expenses is still a live one, and the appeal raises a difficult issue of general importance with which it is appropriate that your Lordships should deal.

12

That issue relates to the principles which are properly to be applied by the court for the purpose of determining whether or not the Crown is bound by a particular statutory provision. It is to be observed at the outset that prior to the parliamentary union of England and Scotland in 1707 Scots law did not recognise any presumption that the Crown was not bound by general words in an Act of Parliament which were capable of applying to it. English law was to contrary effect, the earliest formulation of the rule being expressed in the maxim: "Roy n'est lie per ascun statute, si il ne soit expressement nosme" (Jenkins, Case LXXXIV). English influence began to infiltrate the law of Scotland through the Court of Exchequer, set up...

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