ALLEN
(RESPONDENT)
v.
GULF OIL REFINING LIMITED
(APPELLANTS)
Lord Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Roskill
Lord Wilberforce
my lords,
This action is brought by an inhabitant of the small village of Waterston,
in the County of Dyfed, complaining that the appellants, a branch of a
multinational oil company, are committing a common law nuisance through
the construction and operation of an oil refinery. Many other persons have
brought similar actions. The appellants have installed this refinery on
land immediately adjoining the village and extending over more than 400
acres: it consists of a vast complex of jetties on Milford Haven harbour,
where the largest oil tankers can deliver crude oil, refining plant, pipes,
pumping apparatus, storage tanks, a petrochemical plant, and a private
railway with sidings which passes close to the village before connecting with
the main British Railways line. It is alleged by the plaintiff, but not yet
proved, that the operation of the refinery causes a nuisance by smell, noise
and vibration, and at this point in the action, it must be assumed—but
remains a matter of assumption only—that the allegation is true.
My Lords, I and others of your Lordships have often protested against
the procedure of bringing, except in clear and simple cases, points of law
for preliminary decision. The procedure indeed exists and is sometimes
useful. In other cases, and this is frequently so where they reach this House,
they do not serve the cause of justice. The present is such an example.
The question as originally framed was clearly inept. It was recast by
Kerr J. into an improved form. But both judges in the Court of Appeal
found it either unintelligible or unanswerable: so I believe do some at least
of your Lordships. The fact is that the result of the case must depend upon
the impact of detailed and complex findings of fact upon principles of law
which are themselves flexible. There are too many variables to admit of
a clear-cut solution in advance.
The question as framed by Kerr J. reads ” Can the defendants rely on the
” Gulf Oil Refining Act 1965 as having authorised the construction and
” operation of an oil refinery at Waterston . . .”. In this House both
sides accepted that this is incomplete and they have endeavoured to recast,
or at least to expand it. I quote from the respondent’s printed case:
” The issue arising in this appeal is whether the appellants, Gulf Oil
” Refining Limited (” Gulf”) can rely upon the Gulf Oil Refining
” Act 1965 (“the Act”) as having authorised the construction and
” operation of an oil refinery at Waterston, Milford Haven in the
” County of Dyfed. Gulf seek to rely on the Act as providing the
” defence of ‘ statutory authority’ to Mrs. Allen’s claims for nuisance
” arising out of the operation of the refinery in fact constructed and
” operated by Gulf at Waterston. Gulf contends, in effect, that by
” reason of the Act any inevitable nuisance caused by the construction
” or operation of the refinery must be borne by Mrs. Allen without
” compensation.”
The appellants’ formulation is much to the same effect. I think that these
at any rate give your Lordships a workable indication of what is needed.
That must be in the form of a direction of law on which the judge who is
to try the case can proceed.
The case, as a matter of law, depends upon the construction of the
Act of 1965.
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We are here in the well charted field of statutory authority. It is now
well settled that where Parliament by express direction or by necessary
implication has authorised the construction and use of an undertaking or
works, that carries with it an authority to do what is authorised with
immunity from any action based on nuisance. The right of action is
taken away. (Hammersmith & City Railway Company v. Brand (1869)
L.R. 4 H.L. 171, 215 per Lord Cairns.) To this there is made the
qualification, or condition, that the statutory powers are exercised without
” negligence”—that word here being used in a special sense so as to
require the undertaker, as a condition of obtaining immunity from action,
to carry out the work and conduct the operation with all reasonable regard
and care for the interests of other persons. (Geddis v. Proprietors of the
Bann Reservoir 0878) 3 App. Cas. 430, 455 per Lord Blackburn.) It is
within the same principle that immunity from action is withheld where the
terms of the statute are permissive only, in which case the powers conferred
must be exercised in strict conformity with private rights: (The Metropolitan
Asylum District v. Hill (1881) 6 App. Cas. 193).
What then is the scope of the statutory authority conferred in this case?
The Act was a private Act, promoted by the appellants, no doubt mainly
in their own commercial interests. In order to establish their projected
refinery with its ancillary facilities (jetties, railway lines, etc.), and to
acquire the necessary land, they had to seek the assistance of Parliament.
And so they necessarily had to satisfy Parliament that the powers they
were seeking were in the interest of the public to whom Parliament is
responsible. The case they undertook to make, which they had to prove,
and which, as the passing of the Act shows, they did prove, is shown by
the Preamble. This recites ” increasing public demand for [the company’s)
” products in the United Kingdom ” and that ” it is essential that further
” facilities for the importation of crude oil and petroleum products and
” for their refinement should be made available ” (emphasis supplied). It
proceeds to recite the intention of the Company to establish a refinery at
Llanstadwell, that it was expedient that in connection therewith the
company should be empowered to construct works including jetties for the
accommodation of vessels (including large tankers) and for the reception
from such vessels of crude oil and petroleum products for the proposed
refinery and for conveying oil and petroleum products therefrom: that it
was expedient for the company to be empowered to acquire lands: and
that plans . . . showing … the lands which may be taken or used
compulsorily under the powers of the Act for the purposes thereof . . . had
been deposited.
My Lords, all of this shows most clearly that Parliament considered
it in the public interest that a refinery, not merely the works (jetties etc.),
should be constructed, and constructed upon lands at Llanstadwell to be
compulsorily acquired.
To show how this intention was to be carried out I need only quote
section 5:
” 5.—(1) Subject to the provisions of this Act, the Company may
” enter upon, take and use such of the lands delineated on the deposited
” plans and described in the deposited book of reference as it may
” require for the purposes of the authorised works or for the
” construction of a refinery in the parish of Llanstadwell in the rural
” district of Haverfordwest in the county of Pembroke or for purposes
” ancillary thereto or connected therewith.
” (2) The powers of compulsory acquisition of land under this section
“shall cease after the expiration of three years from the 1st October
” 1965 “.
The lands in question were the specific lands—about 450 acres in
extent—shown with precise detail in the deposited plans.
I cannot but regard this as an authority—whether it should be called
express or by necessary implication may be a matter of preference—but
an authority to construct and operate a refinery upon the lands to be
3
acquired—a refinery moreover which should be commensurate with the
facilities for unloading offered by the jetties (for large tankers), with
the size of the lands to be acquired, and with the discharging facilities to
be provided by the railway lines. I emphasize the words a refinery by
way of distinction from the refinery because no authority was given or
sought except in the indefinite form. But that there was authority to
construct and operate a refinery seems to me indisputable.
The respondent’s contention against this is a curious one. She points to
the sections (mainly section 15) dealing with works: these specify in great
detail what is to be carried out—in the way of construction of jetties and of
railway lines. Here, she says, is plain statutory authority of the kind
conferred in the well-known cases concerned with railways. By contrast
there is no authority to construct or operate a refinery—not even by
implication. There is nothing but power to acquire lands. The
construction of the refinery is left entirely to the promoters—there is no
specification of the size or nature of the refinery, they have ” carte blanche ”
and therefore the intention must be that they must construct it with regard
to private rights. The case is similar, she says, to that of Metropolitan
Asylum District v. Hill (u.s.). This argument has remarkable consequences.
It follows that if the plaintiff, or any other person, can establish a nuisance,
he or she is entitled (subject only to a precarious appeal to Lord Cairns’
Act) to an injunction. This may make it impossible for the refinery to be
operated: that in turn would leave the appellants as the owners and
occupiers of a large area of land which they have compulsorily acquired
under the authority of the Act of 1965 for the purpose of a refinery, and
which, in accordance with well-known principles, they could not use for
any other purpose. Such consequences must be accepted if they clearly
flow from the terms of the Act.
But I must say that I find the construction which would give rise to this
result to be not only far from clear but a most artificial reading of the
enactment. It is true, and at one time I was impressed by the point, that,
by contrast with the detailed specification given to the ” works”—by
description, plans, levels etc., the Act conspicuously does not define or
specify the refinery even in general terms, and this might appear to support
an argument that this was left altogether outside the Parliamentary authority.
But I think that it was answered by the case in this House of Manchester
Corporation v. Farnworth [1930] A.C. 171. In that case the statutory
authority was simply, in general terms, for the erection of a generating
station, without specification, but nevertheless it was held that, subject to
the ” negligence” exception, the usual rule applied—see particularly
Viscount Dunedin, p. 183. There could be “no action for nuisance caused
” by the making or doing of that thing ” [i.e. the thing authorised] ” if the
” nuisance is the inevitable result of the making or doing so authorised “.
That, in my opinion, describes the situation in the present case. It is true
that the Act of 1965 does not, as did the relevant Act considered in the
Manchester Corporation case, confer express authority to use or operate any
refinery which might be installed on the site, but the preamble refers to
” refinement” – i.e. operation of the refinery—and authority to construct
must in this case carry authority to refine. The two cases are entirely
parallel.
If I am right upon this point, the position as regards the action would
be as follows. The respondent alleges a nuisance, by smell, noise, vibration,
etc. The facts regarding these matters are for her to prove. It is then for
the appellants to show, if they can, that it was impossible to construct and
operate a refinery upon the site, conforming with Parliament’s intention,
without creating the nuisance alleged, or at least a nuisance. Involved in
this issue would be the point discussed by Cumming-Bruce L.J. in the
Court of Appeal, that the establishment of an oil refinery, etc. was bound
to involve some alteration of the environment and so of the standard of
amenity and comfort which neighbouring occupiers might expect. To the
extent that the environment has been changed from that of a peaceful
unpolluted countryside to an industrial complex (as to which different
4
standards apply—Sturges v. Bridgman (1879) 11 Ch.D. 852) Parliament
must be taken to have authorised it. So far, I venture to think, the matter
is not open to doubt. But in my opinion the statutory authority extends
beyond merely authorising a change in the environment and an alteration
of standard. It confers immunity against proceedings for any nuisance
which can be shown (the burden of so showing being upon the appellants)
to be the inevitable result of erecting a refinery upon the site—not, I repeat,
the existing refinery, but any refinery—however carefully and with however
great a regard for the interest of adjoining occupiers it is sited, constructed
and operated. To the extent and only to the extent that the actual nuisance
(if any) caused by the actual refinery and its operation exceeds that for
which immunity is conferred, the plaintiff has a remedy.
For myself I would respond in this sense to the question asked, rather
than in the purely negative sense favoured by the Court of Appeal, and to
that extent I would allow the appeal.
Lord Diplock
MY LORDS,
I have had the advantage of reading in advance the speech of my noble
and learned friend Lord Wilberforce. I agree with it; so there is very little
that I would seek to add.
The question is one of statutory construction: Does the Gulf Oil Refining
Act 1965 by necessary implication authorise the company to operate on
the land that it was authorised to acquire compulsorily an oil refinery upon
a scale commensurate with the area of that land and the provision to be
made for jetties in Milford Haven for the reception at the refinery of crude
oil and petroleum products brought there by large tankers?
I cannot think that this depends upon the presence or absence of an
express authority to ” use” the refinery as well as to construct it.
Parliament can hardly be supposed to have intended the refinery to be
nothing more than a visual adornment to the landscape in an area of
natural beauty. Clearly the intention of parliament was that the refinery was
to be operated as such; and it is perhaps relevant to observe that in Hill v.
Metropolitan Asylum Board (1880) 6 App. Cas. 193, all three members of
this House who took part in the decision would apparently have reached
the conclusion that the nuisance caused by the small-pox hospital could
not have been the subject of an action, if the hospital had been built upon
a site which the Board had been granted power by Act of Parliament to
acquire compulsorily for that specific purpose.
Lord Edmund-Davies
MY LORDS,
The preliminary question of law now calling for consideration derives from
the plea of statutory authority advanced by the defendant in these
proceedings. Although not strictly in the nature of a test action, they
are likely to have a significant impact upon the 52 other actions of a
similar kind instituted against the same defendant which have been stayed
pending the outcome of this interlocutory stage.
The essence of the plea was summarised in the following words by Lord
Dunedin in Manchester Corporation v. Farnworth [1930] A.C. 171. at 183:
” When Parliament has authorised a certain thing to be made or done
” in a certain place, there can be no action for nuisance caused by
” the making or doing of that thing if the nuisance is the inevitable
” result of the making or doing so authorised. The onus of proving
” that the result is inevitable is on those who wish to escape liability
” for nuisance “.
5
The circumstances of the case have been set out in the speech of my noble
and learned friend, Lord Wilberforce, and the preliminary question of law,
as revised by Kerr J. is worded in this way:
” Can the defendant rely on the Gulf Oil Refining Act 1965 as
” having authorised the construction and operation of an oil refinery
” at Waterston, Milford Haven, in the County of Dyfed? “
At this interlocutory stage it is exceedingly difficult and, indeed, impossible
to give a categorical and final answer to that question. For an effective plea
of ” statutory authority ” presupposes the absence of any relevant negligence
by the defendant company. As yet there has been no trial to determine
whether the working of the refinery, which began operation in 1967, does
constitute any nuisance (inevitable or avoidable), or whether Gulf has been
guilty of negligence. Those issues are in themselves capable of having
considerable legal and factual complexity. The burden will be upon the
plaintiff to prove nuisance or negligence, arising from the construction or
operation of the refinery. On the other hand, it would be for the defendant
to establish that any proved nuisance was wholly unavoidable, and this
quite regardless of the expense which might necessarily be involved in its
avoidance, whereas he will clear himself of negligence if at the end of the
day it emerges that any discomfort suffered by the plaintiff arose despite
his exercise of reasonable care. It follows that an affirmative answer now
given to the prescribed question of law can only be tentative, for it might
emerge from the facts that the only possible conclusion was that the plea
of ” statutory authority” was not, after all, available to the defendant.
But, despite the ultimate uncertainty, this House is nevertheless called upon
to consider and answer the question as best it can.
The task involves interpreting the Gulf Oil Refining Act 1965, and that
exercise has already been performed in the speech of my noble and learned
friend, Lord Wilberforce, in a manner with which I am in respectful
agreement. I should add that, in so concluding, I have derived considerable
assistance from the admirable judgment of May J., and I propose to restrict
myself to brief remarks on some of the salient points of the case.
-
Bearing in mind always that this Private Act must be construed
strictly against its promoters wherever there is any doubt as to its meaning,
its Preamble makes clear that the paramount object of the project was the
construction and operation (” in the public interest”) of a refinery on the
acquired land ” in order to meet the increasing public demand “. -
Under the Act the company could ” take and use ” the 450 acres of
land they were thereby empowered to acquire compulsorily only ” for the
” purposes of the authorised works or for the construction of a refinery . . .
” or for purposes ancillary thereto or connected therewith “. (Section 5(1)). -
In the light of the foregoing, no significance should be attached to
the fact that, whereas the Act made express provision for the nature, scale
and layout of the “authorised works” (section 15), no such detailed
provision was made in respect of the refinery which was to be constructed.
In my judgment, it was nevertheless a necessary implication of the Act
that the company was thereby authorised to construct and operate the
refinery which they in fact later constructed and operated (see London
& Brighton Railway Company v. Truman (1885) 11 App. Cas. 45); and in
acting as it did the company took and used the land for the sole purposes
for which a power of compulsory acquisition had been conferred on it. -
The plaintiff understandably places strong reliance on the absence
from the Act of any provision for the payment of compensation for any
damage caused by the construction or operation of the refinery or by the
exercise of the powers conferred by section 15, and this particularly as
section 16(3) made express provision for compensation in respect of
damage caused by the exercise of powers conferred by that section in relation
to ” subsidiary works “. But the works contemplated and authorised by the
two sections are basically different, those covered by section 16 of their
6
very nature necessarily affecting proprietorial and other rights of outside
bodies, and it would be inconceivable that provision for compensation
would not be made in respect of damage done in their cases.
The general legal approach unquestionably is that the absence of
compensation clauses from an Act conferring powers affords an important
indication that the Act was not intended to authorise interference with
private rights; see Metropolitan Asylum District v. Hill (1881) 6 App. Cas.
193, at 203 and the other cases cited in Halsbury’s Laws of England, 4th
Edition, Vol. 1, para 196. But the indication is not conclusive (see Edgington
v. Swindon Corporation [1939] 1 K.B. 86), and if the correct view (as I
believe it to be) is that in 1965 Parliament—in part expressly and in part
impliedly—authorised the construction and use of the Waterston refinery,
that carries with it immunity from liability for nuisance inevitably and
without negligence arising therefrom (see Hammersmith & City Railway
Company v. Brand (1869) L.R. 4 H.L. 171, per Lord Cairns at 215 et seq.)
My Lords, I respectfully adopt the ipsissima verba of May J. in saying
that, ” I have come to the conclusion that it would be totally artificial to
” say that this Act of 1965 did not ‘ authorise’ the erection of this refinery
” within the ambit of the defence of statutory authority … to actions in
” nuisance”. I would therefore allow the appeal, and the trial will
presumably now proceed upon the issues of (1) Nuisance (“inevitable” or
otherwise) and (2) Negligence.
Lord Keith of Kinkel
my lords,
This appeal is concerned with the correct answer to a question of law
which, following an application by the respondent, was by an order of
Kerr J. dated 23rd May 1977, formulated by him and directed to be tried
as a preliminary issue.
The question is in these terms:
” Can the defendant rely on the Gulf Oil Refining Act 1965 as having
” authorised the construction and operation of an oil refinery at
” Waterston, Milford Haven in the county of Dyfed? “
The wording of the question has been subjected to some criticism, but there
is common ground between the parties as to the issue which it is thereby
sought to raise and determine. That issue is whether the Act of 1965
affords the appellants a good defence against the respondent’s action for
common law nuisance arising from the normal operation of a refinery upon
the site in question, upon the assumption that the creation of a nuisance
is a necessary incident of such operation, not avoidable by any reasonable
measures which might be taken by the appellants. An undertaking has
been given on behalf of the respondent that, if that issue is decided in her
favour, she will not pursue the allegation contained in her pleadings that
a nuisance has been created by negligence on the part of the appellants.
The issue was decided in the appellants’ favour by May J. but on
27th June 1979 the Court of Appeal (Lord Denning M.R. and
Cumming-Bruce L.J.) reversed his decision. The appellants now appeal to
this House.
The defence upon which the appellants rely is commonly known as that
of “statutory authority”. Its availability in appropriate circumstances
was established by a series of nineteenth century cases concerned with the
operation of railways under statutory powers, of which the best known are
R. v. Pease (1832) 4 B. & Ad. 30, and Vaughan v. The Taff Vale Railway
Company (1860) 5 H. & N. 679. The correctness of these decisions was
affirmed by this House in Hammersmith & City Railway Company v. Brand
(1869) L.R. 4 H.L. 171. The majority of the consulted judges had
expressed the view that these cases were wrongly decided. Bramwell B.
7
had founded upon the absence in the Railway Clauses Act of any express
provision conferring power upon the railway company to use locomotives
so as to be a nuisance to their neighbours. Lord Chelmsford said, at p.202:
” With great respect to the learned Baron, we do not expect to find
” words in an Act of Parliament expressly authorising an individual or
” a company to commit a nuisance or to do damage to a neighbour. The
” 86th section gives power to the company to use and employ locomotive
” engines, and if such locomotives cannot possibly be used without
” occasioning vibration and consequent injury to neighbouring houses,
” upon the principle of law that ‘ Cuicunque aliquis quid concedit,
“‘ concedere videtur et id sine quo res ipsa esse non potuit‘, it must
” be taken that power is given to cause that vibration without liability
” to an action. The right given to use the locomotive would otherwise
” be nugatory, as each time a train passed upon the line and shook
” the houses in the neighbourhood actions might be brought by their
” owners, which would soon put a stop to the use of the railway. I
” therefore think, notwithstanding the respect to which every opinion
” of Mr. Baron Bramwell is entitled, that the cases of Rex v. Pease and
” Vaughan v. The Taff Vale Railway Company were rightly decided.”
Geddis v. Proprietors of the Bann Reservoir (1878) 3 App. Cas. 430
established that the authority of Parliament to construct and use certain
works does not relieve the undertakers from the obligation to take due care
that their operations do not cause injury to neighbouring proprietors. So the
defence of statutory authority, the application of which has been extended
to a wide field of industrial activities, does not avail against a claim that
the creation of a nuisance has been brought about by negligence. In
Manchester Corporation v. Farnworth [1930] A.C. 171, Lord Dunedin said
at p.183:
“When Parliament has authorised a certain thing to be made or
” done in a certain place, there can be no action for nuisance caused
” by the making or doing of that thing if the nuisance is the inevitable
” result of the making or doing so authorised. The onus of proving
” that the result is inevitable is on those who wish to escape liability
” for nuisance, but the criterion of inevitability is not what is
” theoretically possible but what is possible according to the state of
” scientific knowledge at the time, having also in view a certain common
” sense appreciation, which cannot be rigidly defined, of practical
” feasibility in view of situation and of expense.”
For the purpose of disposing of the preliminary issue which I have
described, it is to be assumed that the respondent’s averments about the
existence of a nuisance emanating from the appellants’ refinery are true, and
also that the nuisance would be the inevitable result, in the sense of
Lord Dunedin’s words, of operating, not the refinery which the appellants
have actually built, but such a refinery as must reasonably be regarded as
having been in the contemplation of Parliament when it passed the Gulf
Oil Refining Act 1965.
The question whether upon these assumptions the defence of statutory
authority is available to the appellants turns upon the ascertainment, upon
a proper construction of the 1965 Act, of the extent of the authorisation
thereby granted to the appellants by Parliament. The Act is divided into
four parts. Part I is headed ” Preliminary “. Section 3 incorporates with
certain exceptions the Lands Clauses Acts, the Railways Clauses
Consolidation Act 1845 and the Harbours Clauses Act 1847. Among the
excluded sections of the 1845 Act is section 86, which makes lawful the
use of locomotive engines and carriages and wagons to be drawn thereby.
Section 4 contains a number of definitions including that of ” the
” authorised works ” as meaning ” the works authorised by section 15 (Power
” to construct works) of this Act.” Part II, starting with section 5, is headed
” Lands “. Section 5(1) provides:
” Subject to the provisions of this Act, the Company may enter upon,
” take and use such of the lands delineated on the deposited plans
8
” and described in the deposited book of reference as it may require
” for the purposes of the authorised works or for the construction of a
” refinery in the parish of Llanstadwell in the rural district of
” Haverfordwest in the County of Pembroke or for purposes ancillary
” thereto or connected therewith.”
Section 7(1) provides:
” The Company may, instead of acquiring any land that it is
” authorised to acquire compulsorily under this Act, acquire
” compulsorily such easements and rights over or in the land as it
” may require for the purpose of constructing, using, maintaining,
” renewing or removing the works authorised by this Act or for
” the purpose of obtaining access to the works or for the purpose of
” doing any other thing necessary in connection with the works or for
” the construction of a refinery.”
The remainder of Part II deals with a number of ancillary provisions, such
as power to expedite entry, power to enter for survey or valuation and power
to stop up roads and footpaths. Part III, headed ” Works “, consisting
of sections 15 to 32, contains a number of detailed provisions relating to
construction of certain specific works according to deposited plans and
sections. The works comprise a main approach jetty and two jetty heads
in Milford Haven intended for the berthing of tankers, and also a single
track railway, 2 1/2 miles in length, connecting the refinery site to the British
Rail line at a specified point. Section 15(1) provides that the company
” may construct” these works. Section 16(1) provides that the company
” for the purposes of or in connection with the authorised works and within
” the limits of deviation “, may ” construct or place and maintain and use ”
a very large number of specified facilities, including ” buildings, engines,
” pumps, machinery . . . railways . . . junctions, sidings “, and also
temporarily or permanently ” use … alter or otherwise interfere with ”
such things as ” drains, sewers . . . electric, gas, water and other pipes “;
the company is further empowered to ” raise, sink or otherwise alter the
” position of any of the steps, areas, cellars, windows and pipes or spouts
” belonging to any house or building”. By section 16(3) it is provided
that in the exercise of these powers ” the Company shall cause as little
” detriment and inconvenience as the circumstances permit to any person
” and shall make reasonable compensation for any damage caused by the
” exercise of such powers.” Part IV, headed ” Miscellaneous” and
comprising sections 33 to 57, includes provisions governing the company’s
status as a pier authority, and also a number of saving and protective
provisions including, in section 55, a saving for town and country planning
legislation.
Examination of the provisions of the Act shows that those relating to the
” authorised works “, which do not include the construction of any refinery,
are elaborate and reasonably precise. These provisions were necessary to
enable the appellants to do things, which they would otherwise have no
right to do, in particular to interfere with the tidal waters of Milford Haven.
In connection with the authorised works and ancillary operations the Act
confers certain rights to compensation upon persons who may be affected
thereby. The precise ambit of these rights is not altogether clear, but need
not for present purposes be investigated.
So far as the construction of a refinery is concerned, the Act does no more
than confer upon the appellants for that purpose power to acquire
compulsorily certain specified lands. Such power of acquisition also
extends to lands acquired for the construction of the authorised works. As
an alternative to compulsory purchase, the appellants are by section 7(1)
given power to acquire compulsorily such easements or other rights over
the specified land as may be required for construction purposes and also,
in the case of the authorised works but not as regards any refinery, for
the purpose of using, maintaining, renewing or removing the works. It is
apparent that the Act touches very lightly on the matter of construction of a
refinery. No specification or detail of any kind is given of the refinery which
9
the appellants propose to construct. It is of some significance that the
preamble to the Act, to which I have not so far alluded, does no more in
relation to the refinery than say that the appellants intend to establish
one in the parish of Llanstadwell. The powers which the preamble
represents as being expedient in the public interest to be conferred upon
the appellants are related only to the construction of the authorised works,
to the acquisition of land and to the constitution of the appellants as a
pier authority. Nothing is said about any power specifically related to the
refinery as such. It is true that the preamble recites that it is essential
that further facilities for the importation of crude oil and petroleum
products and for their refinement should be made available in the United
Kingdom, but this is related merely to the purpose of meeting the increasing
public demand for ” its”, i.e. the appellants’, products in the United
Kingdom. It is apparent that the Act is directed to furthering the appellants’
own business interests in the United Kingdom, though of course Parliament
would not have conferred upon the appellants the powers therein contained
unless satisfied that it was in the public interest to do so.
In construing a private Act of this kind it is necessary to keep the
contra proferentem rule firmly in mind:
” In the case of a private Act, which is obtained by persons for
” their own benefit, you construe more strictly provisions which they
” allege to be in their favour, because the persons who obtain a private
” Act ought to take care that it is so worded that that which they desire
” to obtain for themselves is plainly stated in it”:
Altrincham Union Assessment Committee v. Cheshire Lines Committee
(1885) 15 Q.B.D. 597 per Lord Esher M.R. at p.603.
It is the duty of those promoting private Acts to make plain the precise
extent to which they propose to derogate from the common law rights of
those who may be affected by their proposals. It will not do to slip through
Parliament provisions which do not on the face of them express reasonably
clearly the intention to take away the rights of others, with a view to
subsequently relying on them as having had that effect. In order to check
any such tendency, it is essential that any doubtful provision of the kind
in question should be most strictly construed.
In the present case it is section 5(1) of the Act which is principally
founded upon as having the result contended for, section 7(1) also being to
some extent prayed in aid. It is said that Parliament, having by section
5(1) authorised the appellants to acquire compulsorily and use certain
specified lands for the construction of a refinery, must by necessary
implication be taken to have authorised the operation of a refinery
commensurate in size and scale with the extent of the designated site. Any
nuisance which is the inevitable result of operating such a refinery is
accordingly not actionable.
My Lords, I am unable to accept that view of the effect of section 5(1).
It is true that the burden of establishing that Parliament intended to take
away the private right of individuals may be discharged by showing that
such intention appears either from express words or by necessary
implication: Managers of Metropolitan Asylum District v. Hill (1881) 6
App. Cas. 193, per Lord Blackburn at p.208. I cannot, however, find
any necessary implication of such intention in a provision the operative
purpose and effect of which merely is to confer powers of compulsory
purchase. Any compulsory purchase powers, whether conferred by
Parliament directly or under statutorily delegated authority, must be
conferred for a specific purpose. I do not consider that the mere mention
of that purpose in the conferment of the powers is sufficient in itself to infer
an intention to authorise any particular activity upon the acquired lands
which might infringe the rights of others. The position would have been
different if section 5(1) had specifically authorised the appellants to use
a refinery upon the site in question. Thus in Manchester Corporation v.
Farnworth (supra) section 36(l)(a) of the Manchester Corporation Act 1914
gave the corporation authority to “construct, maintain, alter, improve,
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” enlarge, extend, renew, work and use ” upon the site described ” a station
” for generating electricity “. It was held that the corporation were liable
only for such nuisance as could not be prevented by the use of due diligence.
In the passage quoted above, Lord Dunedin referred to there being no action
for inevitable nuisance caused by the ” making or doing ” of a certain thing
which Parliament has authorised to be made or done in a certain place.
The making of a certain thing is different from the doing of a certain thing.
If in that case Parliament had not specifically authorised the corporation ” to
” work and use ” the power station, it does not appear that their doing so
would have been protected in any way.
The defence of statutory authority is well known. The appellants here
may reasonably be taken to have access to the best legal advice in connection
with the promotion of their private Act. The precedents show clearly the
route to be taken in order to avoid any doubt about its availability. The
appellants failed to include in their Act any reference to authority to operate,
work or use a refinery. If they had done so, Parliament might well have
insisted on provisions for compensation. Applying the principles of
construction to which I have alluded, I am not prepared to hold that section
5(1) is susceptible of the necessary implication contended for by the
appellants.
My Lords, for these reasons I would dismiss the appeal.
Lord Roskill
MY LORDS,
As my noble and learned friend, Lord Wilberforce, states, your
Lordships’ House has often protested against the procedure of inviting
courts to determine points of law upon assumed facts. The preliminary
point procedure can in certain classes of case be invoked to achieve the
desirable aim both of economy and simplicity. But cases in which such
invocation is desirable are few. Sometimes a single issue of law can be
isolated from the other issues in a particular case whether of fact or of
law, and its decision may be finally determinative of the case as a whole.
Sometimes facts can be agreed and the sole issue is one of law. But the
present is not a case in which this procedure ought ever to have been
adopted for the reasons stated by my noble and learned friend. The
question posed was, in its original form, hopeless. In spite of the valiant
attempt by Kerr J. to improve it, I doubt whether the question could ever
have been cast into a satisfactory form. Both parties, however, invited
your Lordships’ House to treat the question for decision as that stated
in virtually identical terms in paragraph 1 of their respective cases, namely,
whether the appellants can rely upon the Gulf Oil Refining Act 1965 as
having authorised the construction and operation of an oil refinery at
Waterston, Milford Haven, thereby affording to the appellants the defence
commonly known as ” statutory authority ” against a common law action
for nuisance?
My Lords, in common with all your Lordships, I agree that this should
be treated as the question to be answered. But I hope that your Lordships’
agreement so to treat it will not encourage others to invoke the preliminary
point procedure in unsuitable cases, or lead those whose task it is to
decide whether or not the trial of preliminary points should be ordered, to
be other than extremely cautious before acceding to pleas for the making
of such orders as a result of attractively advanced submissions founded
upon pleas of supposed economy.
My Lords, the answer to the question depends upon the true construction
of the Gulf Oil Refining Act 1965 (” the 1965 Act”). The most important
sections are sections 5, 7 and 15. The Act itself was a private Act, no
doubt promoted by the appellants in their own commercial interests. But
Parliament must, I think, be taken to have accepted that the construction
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of a refinery, such as was proposed, was also in the public interest for the
.third recital asserts that ” in order to meet the increasing public demand
” for its ” [i.e. the appellants’ parent company’s] ” products in the United
” Kingdom, it is essential that further facilities for the importation of crude
” oil and petroleum products and for their refinement should be made
” available in the United Kingdom “, while the fifth recital, after recording
the appellants’ intention ” to establish a refinery ” continues ” it is expedient
” in the public interest that in connection therewith the company ” (i.e. the
appellants) ” should be empowered to construct the works authorised by
” this Act, including jetties in the waters of Milford Haven and on the
” foreshore thereof”, and the tenth recital refers to a deposit of plans
and sections showing (inter alia) ” the lands which may be taken or used
” compulsorily under the powers of this Act for the purposes thereof “.
My Lords, for a period of over one hundred and fifty years the principles
upon which statutes such as the 1965 Act have to be construed, have been
considered and authoritatively determined by your Lordships’ House.
Where Parliament by express words or necessary implication authorises
the construction or use of an undertaking, that authorisation is necessarily
accompanied by immunity from any action based on nuisance. The
.underlying philosophy plainly is that the greater public interest arising
from the construction and use of undertakings such as railways, must take
precedence over the private rights of owners and occupiers of neighbouring
lands not to have their common law rights infringed by what would otherwise
be actionable nuisance. In short, the lesser private right must yield to the
greater public interest.
My Lords, the many authorities are reviewed in the judgments in the
courts below and in the speeches of your Lordships, and no useful purpose
will be served by further review of them by me. But the immunity to which
I have just referred is not unqualified or unlimited. The statutory
undertaker must in return for the rights and privileges which he has thus
obtained exercise his powers without negligence, a word which has been
interpreted as meaning reasonable regard for the interests of others.
My Lords, the principal argument for the respondent has been that the
1965 Act did not authorise the construction of a refinery. It authorised, it
was said, the construction of the works specified in section 15, for example,
the jetties and the railway, but so far as any refinery was concerned, its
construction was facilitated by permitting the compulsory acquisition of
large tracts of land but nowhere is there to be found in the statute any
express authority for its construction. Therefore, the argument ran, the
principles derived from the decided cases had no application to any nuisance
arising from the operation of any refinery built, for the construction of
such a refinery was not, unlike the works referred to in section 15,
” authorised “.
Learned counsel for the respondent, if I understood him correctly,
ultimately accepted that there would be the relevant conferment of immunity
in relation to works specifically authorised by section 15, so that nuisance
created by (for example) the erection of jetties and possible consequential
interference with tidal flow affecting the rights of neighbouring owners and
occupiers of land could not be the subject of action at common law.
My Lords, I confess that for some time I was impressed by the apparent
contrast in the 1965 Act between the works authorised by section 15, and
the absence of express authority for the construction of a refinery as well as
by the absence of any express abrogation in the statute of the common law
rights of others. But on further reflection as to the second of these points,
the decided cases show that the absence of express abrogation of the rights
of others in the relevant statute is of itself no reason for denying the immunity
sought if from the language of the statute as a whole it is plain that the
carrying on of the undertaking on the one hand, and the unrestricted private
rights of neighbouring landowners on the other, could not have been intended
to co-exist.
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As to the first of these points, the respondent’s argument leads to a most
curious, and as I venture to think, illogical result. If the argument be sound,
then subject only to the provisions of Lord Cairns’s Act, the respondent upon
proof of the existence of nuisance or nuisances pleaded, would be entitled
to an injunction. Such an injunction would be likely to make the operation
of a refinery impossible and thus wholly defeat the very purpose for which
the 1965 Act was passed, a purpose which the recitals describe as
” essential “.
My Lords, I cannot, with all respect to those who have taken a different
view, think that this conclusion can be correct. In the result I find myself
in complete and respectful agreement with the speech of my noble and
learned friend. Lord Wilberforce.
My Lords, I do not think the question raised even as reinterpreted by
your Lordships is susceptible of a monosyllabic answer. In agreement with
my noble and learned friend I think it should be answered in the form of
a direction to the trial judge by whom this action will ultimately fall to be
tried, if it goes to trial, as to the law to be applied by him to the facts as he
finds them to be. I think that direction should be in the form stated in the
penultimate paragraph of my noble and learned friend’s speech.
I would therefore allow the appeal and answer the question as my noble
and learned friend suggests.
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