Re King (W. J.) & Sons Ltd's Application
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE ORR |
| Judgment Date | 13 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0213-6 |
| Date | 13 February 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0213-6
In The Supreme Court of Judicature
Court of Appeal
Civil Division
On appeal from Order of Mr. Justice Whitford.
Lord Justice Buckley,
Lord Justice Orr and
Sir John Pennycuick
Mr. RICHARD SCOTT, Q.C. and Mr. TIMOTHY LLOYD (instructed by Messrs Kenneth Brown, Baker, Baker) appeared on behalf of the Appellants, William Geoffrey King and Edward Rowland Siddle, Respondents to the Application.
Mr. JEREMIAH HARMAN, Q.C. and Miss. ELIZABETH APPLEBY (instructed by Messrs Iliffe & Edwards) appeared on behalf of the Respondents, Applicants W. J. King & Sons Limited.
The Judgment which I will ask Lord Justice Orr to read is the Judgment of the Court.
Mr. W. G. King, the effective appellant in this case (and whom we shall call "the appellant") is the son of the late Mr. W. J. King, who by a lease dated the 1st February, 1947, demised to the respondent company W. J. King & Sons Limited., for the purposes of their business of quarrying hard stone, some 12 acres of land, part of an area known as the Triscombe quarry at West Bag borough in Somerset, for a term of 28 years from the 25th December, 1946, but subject to an express provision that the respondents should be at liberty during the six months following the expiry of the lease on the 25th December, 1974, to make merchantable on the demised land any material gotten by them during the term and also to remove their plant. By the combined effect of the Mines (Working Facilities and Support) Acts of 1966 and 1974 the respondents became entitled as from the 31st July, 1974, (the date of enactment of the 1974 Act), to apply to the appropriate Minister (now the Secretary of State for the Environment) for the grant to them of rights to search for and work hard stone in the demised land and also in adjoining land, and by a letter dated the 18th November, 1974, they made application to the Minister for such rights within an area of some 34 acres comprising the demised land, a 3-acre site known as the Parish Quarry to which we shall later refer, and certain land adjoining the demised land in respect of which planning permission had been obtained for stone quarrying; and by a subsequent letter of the 16th December, 1974, they extended the application to comprise a further area of adjoining land comprising some 32 acres which was the subject of a pendingplanning application for such development, giving as their reason for this amendment that, whereas they had previously estimated that there were four to five years supply of stone in the 34 acres, they now had reason to believe that the supply might be as little as two years. The Minister having referred the application to the Court under Section 4 of the 1966 Act, the respondents on the 16th May, 1975, issued an originating summons in the Chancery Division far the grant of such rights, and thereafter on the 4th June, 1975 made an interlocutory application for the right to search for and work hard stone during the interim period before the hearing of the originating summons, but only, as the application was presented to the Court, over the smaller area of 34 acres. This interlocutory application came before Mr. Justice Whitford on the 3rd October, 1975, who granted the relief sought, and it is in respect of this Order that the appellant now appeals and the respondents by a cross-notice seek to support the Judge's decision on grounds other than those relied on by him.
The relevant provisions of the 1966 and 1974 Acts, so far as material for the present purposes, may be summarised as follows. Section 1 of the 1966 Act provides that the Court may, subject to and in accordance with the Act, confer any rights described in the Table thereto. Paragraph 1(1) of the Table, as originally enacted, specified certain minerals not including hard stone, but by the Act of 1974 a new paragraph 1(1) was substituted which includes hard stone. Paragraph 1(2) of the Tables provided: "A right to search for or work any minerals to which this paragraph applies (but not including coal) may be conferred on any person (exercisable either by himself or through a lessee)".
Paragraph 5 of the Table empowered the Court to confer ancillary rights as defined in Section 2 of the Act on a person on whom the right to work minerals is conferred under the Act and the remaining sections of the Act provided, so far as material, as follows:-
"3.(1)No right shall be granted under section 1 of this Act unless the court is satisfied that the grant is expedient in the national interest.
(2) No right shall be granted under section 1 of this Act unless it is shown that it is not reasonably practicable to obtain the right by private arrangement for any of the following reasons -
(a) that the persons with power to grant the right are numerous or have conflicting interests;
(b) that the persons with power to grant the right, or any of them, cannot be ascertained or cannot be found;
(c) that the persons from idiom the right must be obtained, or any of them, have not the necessary powers of disposition, whether by reason of defect in title, legal disability or otherwise;
(d) that the person with power to grant the right unreasonably refuses to grant it or demands terms which, having regard to the circumstances, are unreasonable".
"4, (1) An application for the grant of a right under section 1 of this Act shall be sent to the Minister, and the applicant for an ancillary right for the purpose of or in connection with working any minerals may be a person either having or applying for the right to work those minerals.
(2) The application shall set out the circumstances alleged to justify the grant of the right, and shall be in such form and accompanied by such information verified in such manner as the Minister may direct.
(3) The Minister shall consider the application, and shall, unless after communication with such other parties interested (if any) as he may think fit, he is of opinion that a prima facie case is not made out, refer the matter to the court:
Provided that, where it is alleged that the right in question cannot be obtained by reason of any person not having the necessary powers of disposition, or having unreasonably refused to grant it, or having demanded terms which are unreasonable, the Minister shall not refer the application to the court without first having communicated with that person".
"5.(1) Where a matter is referred to the court under the foregoing section, the court, if satisfied that the requirements of this Act are complied with in the case of the applicant, may, "by order, grant the right on such terms and subject to such conditions, and for such period, as the court may think fit, and upon such an order being made, the right specified in the order shall, subject to the following provisions of this Act, vest in the applicant.
(2) Where a right in granted, such compensation or consideration as in default of agreement may be determined by the court shall be paid or given by the applicant in respect of the acquisition of the right to such persons as the court may determine to be entitled thereto".
"10. A right granted under this Act shall not confer on the person to whom it is granted any greater or other power than if the right had been granted by a person legally entitled to grant the right, or relieve the grantee from any obligation or liability to which he would have been subject had the right been granted by such a person".
Section 15 of the Act repealed certain provisions as to the grant of working facilities contained in, inter alia, the Mines (Working Facilities and Support) Acts 1923 and1925, and the Mines (Working Facilities) Act, 1938.
At the hearing the following matters were not in dispute. In February, 1936, Mr. W. J. King, the father of the appellant, incorporated the respondent company for the purpose, inter alia, of acquiring the business of a quarry proprietor previously carried on by him, and he and the appellant became at that time directors of the company, and the latter in December of the same year managing director, which office he held until July, 1970. In May, 1945, Mr. W. J. King bought the Bag borough House estate which embraces the Triscombe quarry and the land adjoining it, and in January, 1947, he granted to the respondents the lease in question. Surrounded, save on one side, by the demised land is an area called the Parish Quarry from which the parishioners claim the right to take stone, and in respect of this area Mr. W. J. King held a licenses to quarry stone, granted to him in 1932 by the West Bag borough Parish Council, the benefit of which, and of other quarrying licenses held by him, he undertook by an agreement dated the 15th February, 1936, to hold for the benefit of the respondents. In 1952 Mr. W. J. King died, leaving the income of the Triscombe quarry to his wife, who died in 1971) for her life, and the freehold reversion on the lease to the appellant, with the result that it is now held in trust for the appellant absolutely and will be vested in him as soon as certain estate duty questions have been resolved.
In April, 1948, the respondents became a wholly-owned subsidiary of Anglo-American Asphalt Company Ltd.(which we will call "Anglo-American") and have since been under common management with that company and others in the same group. On the 8th July, 1970, following differences of opinion whichhad arisen between him and the directors of Anglo-American, the appellant ceased to be managing director of the respondents and thereafter in an action brought in the Queen's Bench Division made claims for compensation against Anglo-American, who in their defence pleaded...
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