R v Minister of Health, ex parte Yaffe
| Jurisdiction | England & Wales |
| Judge | Viscount Dunedin,Lord Warrington of Clyffe,Lord Tomlin,Lord Thankerton,Lord Russell of Killowen |
| Judgment Date | 23 March 1931 |
| Judgment citation (vLex) | [1931] UKHL J0323-2 |
| Date | 23 March 1931 |
| Court | House of Lords |
[1931] UKHL J0323-2
House of Lords
Viscount Dunedin.
Lord Warrington of Clyffe.
Lord Tomlin.
Lord Thankerton.
Lord Russell of Killowen.
The Minister of Health and the King on the Prosecution of
After hearing Counsel, as well on Monday the 16th as on Tuesday the 17th, Thursday the 19th and Friday the 20th, days of February last, upon the Petition and Appeal of the Minister of Health, 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 10th day of April, 1930, 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 Petitioner 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 The King (on the prosecution of Abraham Yaffe), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side of 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 10th day of April 1930, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the King's Bench Division of the High Court of Justice, sitting as a Divisional Court, of the 14th day of January, 1930, thereby set aside, be, and the same is hereby, Restored; And it is further Ordered, That the Respondent Abraham Yaffe, do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him 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 King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This is an appeal against the judgment of the Court of Appeal which, reversing the judgment of the Divisional Court, restored the judgment of Swift, J., quashing, in certiorari proceedings, an Order made by the Minister of Health, Appellant before your Lordships, confirming a scheme promulgated by the Local Authority of Liverpool under Part 2 of the Housing Act, 1925, for the improvement of a certain area in that city.
It will probably be best, for clearness sake, to set forth, not the whole provisions of the Act which may be referred to, for that would be too lengthy, but those which form most directly the subject matter on which the controversy turns.
The Housing Act, 1925, is a consolidating Statute (15 Geo. V, Cap. 14) and is divided into five Parts. This case has chiefly to do with Part II, which is headed "Improvement and Reconstruction Schemes." Then, under a sub-heading "Improvement Schemes" comes Section 35, which is as follows:—
35.—(1) Where an official representation is made to a local authority as respects any area in the district of the authority either—
( a) that any houses, courts, or alleys within the area are unfit for human habitation, or
( b) that the narrowness, closeness and bad arrangement, or the bad condition of the streets and houses or groups of houses within the area, or the want of light, air, ventilation, or proper conveniences, or any other sanitary defects, or one or more of such causes, are dangerous or injurious to the health of the inhabitants either of the buildings in the area or of the neighbouring buildings;
and that the most satisfactory method of dealing with the evils connected with such houses, courts, or alleys, and the sanitary defects in the area, is a scheme (hereinafter referred to as an improvement scheme) for the rearrangement and reconstruction of the streets and houses within the area, or of some of such streets or houses, the local authority shall take such representation into their consideration, and if satisfied of the truth thereof, and of the sufficiency of their resources, shall pass a resolution to the effect that the area is an unhealthy area and that an improvement scheme ought to be made in respect of the area, and after passing such a resolution they shall forthwith proceed to make a scheme for the improvement of the area.
Section 36 provides that the representation is to be made by the Medical Officer of Health of the City:—
38.—(1) An improvement or reconstruction scheme of a local authority shall be accompanied by maps, particulars, and estimates.
39. As soon as an improvement or reconstruction scheme has been prepared the local authority shall forthwith—
( a) publish in a newspaper circulating within the district of the local authority, an advertisement stating the fact of such a scheme having been made, the limits of the area comprised therein, and naming a place within that area or in the vicinity thereof where a copy of the scheme may be seen at all reasonable hours; and
( b) serve a notice on every owner or reputed owner, lessee or reputed lessee, and occupier (except tenants for a month or a less period than a month) of any lands proposed to be taken compulsorily, so far as such persons can reasonably be ascertained, stating that such lands are proposed to be taken compulsorily for the purpose of such scheme, and in the case of any owner or reputed owner, lessee or reputed lessees, requiring an answer stating whether the person so served dissents or not in respect of taking such lands.
40.–(1) Upon compliance with the foregoing provisions with respect to the publication of an advertisement and the service of notices, the local authority shall present a petition to the Minister praying that an order may be made confirming such scheme.
(2) The petition shall be accompanied by a copy of the scheme, and shall state the names of any owners or reputed owners, or lessees or reputed lessees, who have dissented in respect of the taking of their lands, and shall be supported by such evidence as the Minister may from time to time require.
(3) The Minister after considering the petition may cause a local inquiry to be held, and if satisfied on the report thereon that the circumstances are such as to justify the making of the scheme and that the carrying into effect of the scheme either absolutely, or subject to conditions or modifications, would be beneficial to the health of the inhabitants of the area in question or of the neighbouring dwelling-houses, may by order confirm the scheme with or without such conditions or modifications, so however that no addition shall be made to the lands proposed in the scheme to be taken compulsorily.
(5) The order of the Minister when made shall have effect as if enacted in this Act.
(6) It shall be the duty of the local authority to serve a notice of any order so made in the manner and upon the persons in which and upon whom notices in respect of lands proposed to be taken compulsorily are required by this Part of this Act to be served.
46.—(1) Where land included in any improvement or reconstruction scheme made under this Part of this Act or the corresponding provisions of any Act repealed by this Act (other than land included in such a scheme only for the purpose of making the scheme efficient and not on account of the sanitary condition of the premises thereon or of those premises being dangerous or prejudicial to health) is acquired compulsorily, the compensation to be paid for the land, including any buildings thereon, shall be the value at the time the valuation is made of the land as a site cleared of buildings and available for development in accordance with the requirements of the building byelaws for the time being in force in the district:
Provided that, if in the opinion of the Minister it is necessary that provision should be made by the scheme for the rehousing of persons of the working classes on the land or part thereof when cleared, or that the land or a part thereof when cleared should be laid out as an open space, the compensation payable to all persons interested in any land included in the scheme (other than as aforesaid) for their respective interests therein shall be reduced by an amount ascertained as follows:—
Then follows a somewhat elaborate calculation as to the reduction, factors which need not be gone into at length.
I will now briefly state the course of the case in the Courts below. I shall have to be much more explicit hereafter, but, for clearness sake, it is best to give what happened in an abbreviated form.
The certiorari proceedings were put in motion by one Abraham Yaffe, the proprietor of a house situate in the improvement area which, in the plan embodied in the scheme, was coloured pink, which meant that the buildings were considered insanitary and that he would only be paid for the site value. The ground of his complaint was, shortly, that there was not a scheme put forward in conformity with the requirements of the Act, and that consequently the Minister had nothing to confirm. And further it was eventually said that when he did confirm, with modifications, what was put before him, there still was no scheme which conformed to the Act, so that the so-called confirmation of the Minister was ultra vires, null, and ought to be quashed.
The answer which was made by the Minister and the Local Authority was two-fold. In the first place they said that the scheme, such as it was, having been confirmed by the Minister, his order by virtue of Section 40, subsection 5, had the position of an Act of Parliament and could not be enquired into by the Judges in certiorari proceedings. In the second place, it was said, not originally in the first Court, but in the Court of Appeal, ( a) that the scheme was good as put before the Minister, and ( b...
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