The Queen v The Minister of Housing and Local Government and Anr. ex parte The Mayor, Aldermen and Burgesses of The Borough of Hove

JurisdictionEngland & Wales
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE ROMER
Judgment Date25 June 1952
Judgment citation (vLex)[1952] EWCA Civ J0625-1
CourtCourt of Appeal
Date25 June 1952

[1952] EWCA Civ J0625-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Before:

LORD JUSTICE SINGLETON,

LORD JUSTICE DENNING, and

LORD JUSTICE ROMER.

THE QUEEN
and
THE MINISTER OF HOUSING AND LOCAL GOVERNMENT AND ANR. EX PARTE THE MAYOR, ALDERMEN AND BURGESSES OF THE BOROUGH OF HOVE

Counsel for the Applicants: MR ARTHUR CAPEWELL, Q.C., and MR G.D. SQUIBB, instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr John E. Stevens, Town Clerk, Hove.

Counsel for the Respondents: MR HAROLD I. WILLIS, Q. C., and MR PATRICK STERLING, instructed by the Solicitor to the British Electricity Authority.

Counsel for the Minister of Housing and Local Government: MR J.P. ASHWORTH, instructed by the Solicitor, Ministry of Housing and Local Government.

LORD JUSTICE SINGLETON
1

This is an application by the Mayor, Aldermen and Burgesses of the Borough of Hove for an Order of Certiorari to remove into this Court a decision of the 18th October, 1951, of the Minister of Local Government and Planning for the purpose of having that decision quashed. The Minister is now the Minister of Housing and Local Government.

2

The case arises in this way: The electricity undertaking at Hove was acquired by the Corporation under the Hove Corporation Act, 1913, and under Section 3, subsection (2), of that Act the provisions contained in the Schedule to the Electric Lighting (Clauses) Act, 1899, so far as material to this case, were incorporated and formed part of the Act. The Corporation continued as authorised undertakers until the coming into force of the Electricity Act, 1947. The last-mentioned Act was "An Act to provide for the establishment of a British Electricity Authority and Area Electricity Boards and for the exercise and performance by that Authority and those Boards and the North of Scotland Hydro-Electric Board of functions relating to the supply of electricity and certain other matters; for the transfer to the said Authority or any such Board as aforesaid of property, rights, obligations and liabilities of electricity undertakers and other bodies; to amend the law relating to the supply of electricity; to make certain consequential provision as to income tax; and for the purposes connected with the matters aforesaid."

3

The Act set up the British Electricity Authority and Electricity Boards, and it provided by Section 14 that all property, rights and liabilities which immediately before the vesting date were the property of a body to whom Part II of the Act applied should vestin such Electricity Board or Boards as might be specified or determined. There were special provisions in the case of authorised undertakers who were Local Authorities. The position in such a case is provided for by Section 15. Section 15, sub-section (1), is in the following terms: "In the case of any authorised undertakers being a local authority the provisions of the foregoing section shall only apply to property held or used by the local authority wholly or mainly in their capacity no authorised undertakers, and rights, liabilities and obligations acquired or incurred by the local authority in the said capacity …" I need not read further.

4

Sub-section (3) of Section 15 provides as follows: "Any question arising under this section as to whether any property is or was held or used by any such local authority wholly or mainly in their capacity as authorised undertakers, or whether any property is or was (for the purposes of the last foregoing subsection) held or used partly in the said capacity and partly in other capacities, or whether any rights, liabilities or obligations were acquired or incurred by any such local authority in the said capacity or whether any agreements or documents relate or related to any such local authority in their capacity as authorised undertakers, shall, in default of agreement, be determined by the Minister of Health, and he shall have regard to whether or not entries relating to any property, rights or liabilities were or ought to have been included in accounts furnished…"

5

Vesting day was the 1st April, 1948, and thereafter a question arose as to the right to a sum of money which sprang from the electricity undertaking of the Corporation, and the question was, by virtue ofSection 15, sub-section (3), referred to the Minister. His decision was given by letter of the 18th October, 1951. In that letter he states the submissions made to him, and the letter ends: "For the above reasons, the Minister hereby determines that the balance of £17,520, 9s. 3d. being the subject of the submission now under consideration, constituted, immediately before the 1st April, 1948, property held, or rights acquired, by the Corporation wholly or mainly in their capacity as authorised (electricity) undertakers."

6

The contention put forward on behalf of the ratepayers of Hove is that that decision is wrong and that it ought to be quashed. It is not suggested by the other side that the Minister'S decision cannot be attacked if error of law on the face of it is shown. It appears to me that the only question for consideration of this Court is whether the balance of £17,520. 9s. 3d. constitutes property held, or rights acquired, by the Corporation wholly or mainly in their capacity as authorised undertakers. It is really a question of construction.

7

We have before us an Agreed Statement of Facts with the submission of the parties. Paragraph 4 of the Agreed Statement of Facts refers to the Balance Sheet of the electricity undertaking of the Corporation as at the 31st March, 1948; that was the end of the financial year. These figures are taken from the Revenue Account and the Capital Account. Investments in Government Securities (including £4,881. 4s, 3d, in respect of Reserve Fund) £52,259. 7s, 11d,; Borough Treasurer, Cash at Bank, £56,934. 15s. 3d., and on the Liabilities side ( inter alia) Capital Account, Sinking Fund, £50.0.0; Borough Treasurer, Cash Overdrawn,£13.399, 15s. 8d., and on Revenue Account, Reserve Fund, which amounted at that date to £44,295. 10s. 3d.

8

I must read Paragraphs 5, 6 and 7 of the Agreed Statement of facts in order to make the case clear, as I think those paragraphs do: "(5) The Corporation have agreed that the Authority are entitled to the whole of the investments shown in the said Balance Sheet and they have transferred them to the Authority. The Corporation have also agreed that the Authority are entitled to such part of the Cash at Bank, so shown, as immediately before the vesting date was held as the uninvested part of the Reserve Fund, namely, the sum of £39,414, 6. 0., being the total amount of the Reserve Fund - £44,295, 10. 3 less the amount of £4,881. 4, 3., which consisted of investments, and which was included in the investments transferred to the Authority. The Corporation have accounted to the Authority for the said sum of £39,414. 6. 0., after taking into account the sum of £13,399, 15. 8 Cash Overdrawn, and the sum of £50 Sinking Fund, shown on the Liabilities side of the said Balance Sheet, the amount actually paid by the Corporation being £25,964. 10. 4d, (6) In regard to the balance of the said sum of Cash at Bank, namely, £17,520. 9. 3., being the difference between £56,934. 15. 3, and the said sum of £39,414. 6. 0., it is agreed that it was received by the Corporation from...

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