Pyx Grainite Company Ltd v Ministry of Housing and Local Government
 UKHL J0706-3
House of Lords
Lord Keith of Avonholm
After hearing Counsel, as well on Tuesday the 26th, Wednesday the 27th and Thursday the 28th, days of May last, as on Monday the 1st day of June last, upon the Petition and Appeal of Pyx Granite Company Limited, of and whose registered office is situate at 15 Stanhope Gate, W.l, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 7th of February 1958, might be reviewed before Her Majesty the Queen, in Her 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 Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of the Ministry of Housing and Local Government and the County Council of the Administrative County of Worcester, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 7th day of February 1958, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Lloyd-Jacob of the 16th day of April 1957, thereby set aside, be, and the same is hereby, Restored:
And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
The relevant facts and instruments are so fully stated in the Opinion of my noble and learned friend, Lord Jenkins, which I have been privileged to read, that I recall at once what are the questions which Your Lordships have to decide in this case.
There are at least two questions of primary importance which must be determined, two further questions which have been fully argued but in the view that I take of the first two questions no longer arise, and finally a fifth question which has given me more difficulty than any other, largely because it was little, if at all, discussed in the Court of Appeal and we have not the advantage of the opinion of that Court upon it.
The first question, my Lords, is this. The Appellant company are entitled as freeholders, leaseholders or licensees to carry on quarrying operations for the working and winning of stone upon certain lands which I will call part of the Malvern Hills. I leave for future consideration the question whether that is an accurate description; it is in substance the fifth question that I have mentioned. It is indisputable that such operations constitute "development" within the meaning of the Town and Country Planning Acts. From this it follows that such operations cannot be carried on without the permission of the relevant authority, whether the local planning authority or the proper Minister, at first the Minister of Town and Country Planning and later the Minister of Housing and Local Government. The question is whether such permission has in fact been given, and it is to be resolved by a consideration of two instruments, first, the Town and Country Planning (General Development) Order of 1948 made under the authority of the 1947 Act which for this purpose may be read as one with a similar Order of 1950 (I will refer to it as "the Development Order") and, secondly, a private Act known as the Malvern Hills Act, 1924. By Article 3 of the Development Order, the validity of which has not been challenged, it was provided that, subject as therein mentioned, development of any class specified in the First Schedule thereto was thereby permitted and might be undertaken upon land to which the Order applied without the permission of the local planning authority or the Minister. The First Schedule contains in Class XII the words material to the decision of this case. They are:
"Development authorised by any local or private Act of Parliament or by any Order approved by both Houses of Parliament, being an Act or Order which designates specifically both the nature of the development thereby authorised and the land upon which it may be carried out".
I will assume that the Malvern Hills Act, 1924, to which I will refer as the "private Act", designates specifically the nature of the development and the land upon which it may be carried out, and I turn to the question which has been the sole issue in this part of the case, namely, was the development authorised by the private Act? Upon this question differing opinions have been expressed. Mr. Justice Lloyd-Jacob thought it was authorised: in the Court of Appeal Lord Denning and Lord Justice Hodson, largely relying on the case of , , thought it was not, while Lord Justice Morris distinguished that case and upheld the view of Mr. Justice Lloyd-Jacob. I think that Lord Justice Morris was right.
My Lords, in the year 1924 the Malvern Hills Conservators, a body appointed under earlier Acts whose duty it was to preserve and control the Malvern Hills for the benefit of the public, promoted a Bill for the extension and definition of their powers. It was opposed by the Appellant company, whose interest lay in the quarrying of stone upon their land. As commonly happens in such cases, a compromise was reached. It was embodied in a clause which became section 54 of the Act and was in these terms:
"For the protection of the Pyx Granite Company Limited (in this section referred to as 'the company') the following provisions shall unless otherwise agreed in writing between the company and the Conservators and the Malvern Council have effect (that is to say): —The heads of agreement as set forth in the Fourth Schedule to this Act are hereby confirmed and made binding on the company and the Conservators and the Malvern Council and the provisions of this Act shall only apply to or affect the undertaking property or rights of the company subject to the provisions of the said heads of agreement."
Postponing comment on a section which is in some respects remarkable, I turn to the Scheduled Heads of Agreement and I find myself so fully in agreement with Lord Justice Morris in his description of their tenor and effect in conjunction with the Act that I take the liberty of quoting it and adopting it as my own. "That Act", he said, "was one which effected most carefully worked out planning in regard to the Malvern Hills. The conservators were given additional powers. The company agreed to a limitation and fixation of their rights. From their previously existing rights something was extracted, and to them something else was added. The company's rights were limited, outside their freehold property, to a defined quarryable area. It was implicit in the agreement made that the continuing rights of the company to quarry on their freehold area were recognised. The company were to supply the council with stone for the repair of roads. The company were to put in repair a quarry road between certain defined points, and were to keep such road in repair. The company were to widen the quarry road to permit of a footpath by the side of it. The company were to be at liberty to make and use a tunnel under the area of land dividing their freehold property from the quarries which the Council were handing over to the company. All this elaborately worked out detailed planning was, in my judgment, formally approved by Parliament when it provided by section 54 that, for the 'protection' of the company, the Act should only apply to or affect the undertaking, property or rights of the company subject to the provisions of the heads of agreement. It seems to me that formal approval and sanction were given by Parliament to the activities of the company as planned and arranged within the scope of the agreement that was made. In this way the activities of the company which constituted 'development' were, in a very real sense, 'authorised ' by the Act of 1924. Parliament enacted that the specific arrangements (under which the range of the company's activities was defined and limited) were confirmed and made binding on the company, the conservators and the Malvern Council. I feel impelled to the view that Parliament authorised the arrangements which it confirmed and made binding." I emphasise that, as the learned Lord Justice points out, the 54th section of the Act is expressed to be "for the protection of the company", and that no better protection from the obligations or liabilities that would otherwise be imposed on it could be provided than by the limiting words of the last lines of the section. But for this section and these words in particular quarrying would be subject to restriction. Their presence means that the company can claim the authority of Parliament to continue their operations. It would, I think, be taking too narrow a view of the meaning of the word "authorised" to exclude from its scope such a result. I do not think it necessary to refer to head 14 of the Heads of...
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