Pyx Grainite Company Ltd v Ministry of Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | LORD DENNING,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 07 February 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0207-1 |
| Docket Number | 1954. P. No. 3415 |
| Court | Court of Appeal |
| Date | 07 February 1958 |
[1958] EWCA Civ J0207-1
Lord Denning
Lord Justice Hodson and
Lord Justice Morris.
In The Supreme Court of Judicature
Court of Appeal
Mr G.D. SQUIBB, Q. C., Mr RODGER WINN and Mr ANDREW P. LEGGATT (instructed by The Solicitor, Ministry of Health, and Messrs Sharpe, Pritchard Co., Agents for Mr W.R. Scurfield, Worcester) appeared on behalf of the Appellants (Defendants).
Mr J. RAKSAY WILLIS, Q. C., and Mr WILLIAM SCRIVENS (instructed by Messrs Stephenson, Harwood & Tathem.) appeared on behalf of the Respondents (Plaintiffs).
The Malvern Hills are of great natural beauty. They are also an important source of granite for roads. The Pyx Granite Company have the right to quarry in two areas of the Hills. The questions in this case are two; First, whether the Company have to obtain the permission of the planning authority before braking fresh surface; second, If permission is necessary, what conditions can the planning authority lawfully impose?
The Minister of Housing and Local Government says that the company are not entitled to win and work granite from the Hills except with the special permission of the local planning authority, that is, the Worcestershire County Council, or of the Minister. The Minister is ready to grant permission to the company to quarry to a limited extent, but no more.
There are two quarry able areas concerned. One is the Tank Quarry area. It is the freehold property of the company. It is the most important of the Malvern quarries, and is 11 acres in extant. There are 5 acres of it not yet touched which contain sufficient atone to last 100 years. The Minister, by a letter dated 30th September 1953 refused permission to work a tract of this land because he wished to preserve the skyline; and he also refused permission to work a spur of the land because it screened the workings. He has granted permission to work the remainder, but only until the 30th Juno 1966.
The other is the North Quarry area. It is owned by the Malvern Council, but they have granted to the company licences to work it until the 24th June 1960. It is 23 acres in extent, but la in a dangerous state. There is a fault which has threatened to cause a large fall of rock. The Minister, by a letter dated the 6th September 1949 has granted to the company permission to win and work the minimum amount of granite to sours safety, but by the letter of the 30th September 1953 he has refused permission for any other working.
The Pyx Granite Company contend that the Minister's letter refusing permission is of no validity at all. They say that they do not require special permission to work those areas because they were authorized to work them by a local or private Act of Parliament, namely, by the Malvern Hills Act, 1924. They say that development so authorized comes within the General Development Order which makes special permission unnecessary. The Minister has rejected this contention, and the company now bring this action asking the court to declare that they are in the right about it.
Mr Squibb takes a preliminary objection. He says that the court has no jurisdiction to entertain this claim for a declaration, and he relies on ( Barracloug v. Brown 1897 Appeal Cases, page 615) for the purpose. The only procedure open to the company is, he says, by application under section 17 of the 1947 Act, which says that "if any person who proposes to carry-out any operations on land… wishes to have it determined whether an application for permission in respect thereof is required under this Part of this Act having regard to the provisions of the development order, he may… apply to the local planning authority to determine the question".
It is as well to see what the procedure of section 17 entails. Take a company which wants to know whether permission is required for its proposed development. The company can apply to the county council to know whether permission is required or not. If the county council decides that permission is required, the company can appeal to the Minister, or the Minister can "call in" the application to bo determined by himself in the first instance. If the Minister decides (either on appeal or at first instance) that permission is required, there is no appeal to the courts from his decision at that stage, but his decision is not final. The company can lost the correctness of it in a roundabout way. They can Ignore his decision, and carry out their operations without permission; and then, when the county council serve an enforcement notice, the company can appeal to a court of summary jurisdiction and ask for the notice to be quashed on the ground that no permission was required - see section 23 subsection (4) (a) - and thence, by applying for a case to be 3tatod, the company can obtain the ruling of the High Court. See what this means. The company would have to do the work at much expense without having any decision of the courts as to their rights, and at the risk of being ordered to pull it down if they were wrong.
So much for the remedy under section 17. Is it the only remedy? That depends on the true interpretation of the Act. I take it to be settled law that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words. In Barraclough v. Brown, the words were sufficiently clear. In that case Parliament had "by plain implication enacted that no other court has any authority to entertain or decide these matters" see per Lord Watson at page 623. That is shown by the recant case of ( Francis v. Yewsley Urban District Council 1957 volume 2 Queen's Bench Division, page 136; 1957 volume 3 Weekly Law Reports, page 919) where a man was aggrieved by an enforcement notice served under the 1947 Act. He said It was invalid. The Act gave him a remedy by way of appeal to a court of summary jurisdiction. Section 23 subsection (4) said "ho may" appeal. The planning authority argued that that was the only remedy. But Mr Justice MC Nair and this court hold that the existence of the statutory remedy did not bar him from seeking a remedy by declaration. Mr Justice MC Nair said: "It Is a funda-A. mental rule that if a subject is to be deprived of a right of coming to these courts, it must be in clear words". I entirely agree.
Applying this principle, I find nothing In the statute to bar recourse to a declaration. Section 17 is no doubt a convenient remedy. It enables a ruling to be obtained from the Minister in a way which is simple and inexpensive. But it is not the only remedy. Section 17 says that "he may" apply to the local planning authority, not that he must do so. The proposed work may be of such importance that the developer may desire the ruling of the High Court before starting on it. The only means of getting such a ruling is by an action for a declaration, and I see nothing in the Act to bar it. In my opinion, the preliminary objection fails.
I turn, therefore, to the substantial dispute. The company says that the working of these areas is covered by the General Development Order, and does not need the permission of the local planning authority or of the Minister. The General Development Order permits any development to be carried out if it is "development authorised by any local or private Act of Parliament being an Act which designates specifically both the nature of the development thereby authorized and the land upon which it may be carried out"; see Article 3 and class XII of the First Schedule to 1950 No. 728. The company say that the development of these areas is authorized by the Malvern Hills Act 1924, but the Minister disputes it.
The dispute depends on the true effect of the 1924 Act. It appears from the recitals that the amenities of the Malvern Hills were threatened by quarrying operations. Parliament desired to save the beauty of the Hills. But the quarry owners had vested rights of quarrying which they claimed should not be taken away without compensation. There seems to have been much negotiation in the course of the Bill through Parliament. In the result, Parliament, by sections 26 and 27 of the Act, empowered the Minister, on the application of the Malvern Conservators, to make orders prohibiting quarrying on any particular part of the Hills; but the conservators had to pay compensation to the owners affected. This obligation to pay compensation would have a restrictive effect on attempts to preserve the Hills. The conservators might not be able to afford to buy out some quarry owners such as the Pyx Granite Company. Negotiations therefore took place between the company, the Malvern Conservators and the Malvern Council, as a result of which "Heads of Agreement" were drawn up, under which the company were to give up their right to quarry many acres of land over which they hold a licence, and were to limit their rights of quarrying to 23 acres of licensed land. (This was outside their freehold property which was not affected by the Act). The heads of agreement were confirmed and made binding by section 54 of the Act which said that; "For the protection of the Pyx Granite Company Limited 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 Conservator 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". The heads of agreement contemplated that a formal agreement should be...
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