Manchester, Lord Mayor, Aldermen and Citizens of the City of v Farnworth

CourtHouse of Lords
JudgeViscount Dunedin, Viscount Sumner, Lord Blanesburgh
Judgment Date28 Nov 1929
JurisdictionEngland & Wales

[1929] UKHL J1128-1

House of Lords

Viscount Dunedin.

Viscount Sumner.

Lord Blanesburgh.

The Lord Mayor, &c., of Manchester
and
Farnworth.

After hearing Counsel, as well on Monday the 8th, as on Tuesday the 9th, Thursday the 11th, Friday the 12th, Monday the 15th and Tuesday the 16th days of July last, upon the Petition and Appeal of the Lord Mayor, Aldermen, and Citizens of the City of Manchester, of the Town Hall, Manchester, in the County Palatine of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 13th of December, 1928, might be reviewed before His Majesty the King, in His Court of Parliament. and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the. premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Arthur Farnworth, lodged in answer to the said Appeal; 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 13th day of December, 1928, complained of in the said Appeal, be, and the same is hereby, Varied, and that it be Declared (1) That the damages to be recoverable against the Defendants should be such as have been sustained by the Plaintiff up to the date when the injunction by the order awarded shall have ceased to be suspended or shall have been dissolved whichever event shall first happen. (2) That immediately after the injunction there should be inserted in the order the following clauses:�

"with liberty reserved to the Defendants to apply to a judge of the King's Bench Division to dissolve the said injunction ( a) on their establishing, if it be not admitted by the Plaintiff, that they have exhausted all reasonable modes of preventing mischief to the Plaintiff, and ( b) on their submitting in the future conduct of their Power Station to adopt and use the most effective of these modes until they have replaced them by other reasonable but more effective modes of prevention which may thereafter be discovered, and which will thereafter be adopted and used."

(3) That the first suspension of the injunction should continue for one year from the date of the order of this House in lieu of one year from the date of the order of the Court of Appeal; and that subject to such Variation, the said Order be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent, the Costs incurred by him in respect of the said Appeal to this House, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Dunedin .

My Lords,

1

This case has given rise to much difference of judicial opinion. Its decision is not only of great moment the both the parties concerned hut its aspects bring up a question of the widest public importance and it, would be well indeed if it could be brought home, not merely to those interested in the development of the law hut to those who in the future are in the position which enables them to settle and control the position of great electrical stations.

2

I shall begin by stating the undoubted facts as succinctly as I can.

3

The Town authorities of Manchester, in order to supply electricity to its inhabitants, procured in 1890 an Electric Lighting Provisional Order, duly confirmed by Act of Parliament in that year, which enabled them to supply electricity in a defined area. in the City of Manchester. This area was afterwards extended by subsequent orders which it is unnecessary to specify, as they are all in the same position so far as regards the material consideration, to wit, that each and all contain a clause similar to Clause 70 of the original Order: "�. nothing in this order shall exonerate the undertakers from any indictment, action or other proceeding for nuisance in the event of any nuisance being caused by them."

4

In 1914 was passed The Manchester Corporation Act, 1914. It was an omnibus Act, as may be seen from its title, "An Act to confer further powers upon the Lord Mayor, Aldermen and Citizens of the City of Manchester with reference to street works, waterworks, tramways, main drainage works and the supply of electricity and otherwise for the better local government and improvement of the city, to alter the wards thereto and for other purposes." There was a description of the lands on which the generating station was to be constructed, extending to 12� acres situate not in the City of Manchester but in a rural district a considerable distance from the city. There is then a provision providing for the construction of electric lines from the generating station to the City, and. then Section 36 provides as follows:�

"(1) The whole or any part of the areas for the supply electricity by the Corporation under the Manchester Electric Lighting Order1890 and any subsequent Acts and Orders may be supplied with electrical energy from all or any of the generating station of the Corporation for the time being including those now existing and the station authorised by this Part of this Act.

(2) The Corporation may by means of electric mains make connexions between the existing generating stations or areas of supply of the Corporation and the generating station authorised by this Part of this Act.

(3) The Corporation may also by means of electric mains make connexions between any two or more areas which they are authorised to supply or between any such area and any generating station of the Corporation.

*��*��*

(5) In relation to any such electric mains as aforesaid the Corporation. �

(B) With respect to streets not within any area which they are authorised to supply shall have the powers and be subject to the provisions of the Electric Lighting Act 1882 and of sections 10 to 20 60 to 62 69 to 73 76 77 and 79 to 82 of the schedule to the Electric Lighting (Clauses) Act 1899 and those provisions so far as applicable but subject to the provisions of this section shall for the purposes of this section be incorporated with this Act and shall have effect and the Corporation shall bedeemed to be the undertakers."

5

The generating station was duly erected and began to work in 1924. The Plaintiff in the present action is a farmer, whose farm is immediately contiguous to the station, and his farm began at once to suffer from the devastating effects of the fumes emitted from the chimneys of the generating station. He raised this action against the Corporation, claiming damages and an injunction. For the present it is enough to say that after two witnesses had been examined, the Corporation, who had in the original pleading denied the creation of a nuisance, admitted that a nuisance had been caused.

6

To make clear the defence raised and the controversies arising thereon it is necessary to say a word on the general law.

7

Up to 1899 procedure was taken by means of Provisional Orders and Confirmation Acts. The Provisional Orders as a matter of fact were wont to contain a Nuisance Clause similar to the clause above quoted in the Manchester Provisional Act. To obviate the necessity of continued repetition in all Provisional Orders Parliament in 1899 passed the Electric Lighting (Clauses) Act. It incorporates in one Act certain provisions usually contained in Provisional Orders made under the Acts relating to electric lighting and by Section 1 it is provided that the provisions contained in the Schedule to the said Act shall be incorporated with and form part of every Provisional Order made by the Board of Trade after the commencement of that Act under the Electric Lighting Acts save so far as they are expressly varied or excepted by the Order; and the said provisions shall also, with the necessary modifications, and in particular with the substitution of the words "special Act" for "special Order," be incorporated with any special Act, save so far as they are expressly varied or excepted thereby. The said section defines the expression "special Act" in the following terms:�

"The expression 'special Act' means in this Act any Act passed after the commencement of this Act authorising the supply of electricity for any public or private purposes within any area."

8

Clause 81 of the Schedule is in the same terms as Clause 70 of the Provisional Order above quoted.

9

Now the Plaintiff says that the Act of 1914 is a Special Act, as defined in the Act of 1899, that consequently, there is incorporated Clause 81, and that ends the matter. The Defendants deny that the Act of 1914 is a Special Act, as defined by the Act of 1899. Upon the assumption that they are right in this contention, the Defendants then say that the generating station is a thing specially authorised by Act of Parliament, that the emission of deleterious fumes is a necessity of the situation, and that consequently, they are not liable for any nuisance created thereby. They rely on the old and well-known cases decided long ago as to the sparks from locomotives, of which Vaughan v. Taff Vale Railway Co., 5 H. & N. 679 may be taken as an example. To this the Plaintiff replies that the onus of proving that the creation of nuisance is an inevitable consequence of the erection and working of the generating station lies on the Defendants, and that they have not discharged that onus.

10

The action depended before Talbot J. without a jury, who found for the...

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