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Cite as: [1980] UKHL 9, [1981] AC 1001

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JISCBAILII_CASE_TORT

    Parliamentary Archives,
    HL/PO/JU/18/241


    Die Jovis 29° Januarii 1981

    Upon Report from the Appellate Committee to
    whom was referred the Cause Allen against Gulf Oil
    Refining Limited, That the Committee had heard
    Counsel as well on Monday the 1st as on Tuesday
    the 2nd and Wednesday the 3rd days of December
    last upon the Petition and Appeal of Gulf Oil Refining
    Limited whose registered office is at the Quadrangle,
    Imperial Square, Cheltenham in the County of
    Gloucester praying that the matter of the Order set
    forth in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal of the 27th day of June
    1979 so far as regards the words "It is Ordered that
    this Appeal be allowed and the Order of the Honour-
    able Mr. Justice May set aside" and " And it is
    Ordered that the question posed in the preliminary
    point of law for the Decision of the Court be answered
    in the negative and it is Ordered that the costs of this
    Appeal be taxed by a Taxing Master and paid by the
    Defendant to the Plaintiff's Solicitors" might be
    reviewed before Her Majesty the Queen in Her Court
    of Parliament and that the said Order so far as
    aforesaid might be reversed, varied or altered and that
    the Petitioners might have the relief prayed for in the
    Appeal or such other relief in the premises as to Her
    Majesty the Queen in Her Court of Parliament might
    seem meet; as also upon the Case of Elsie May Allen
    lodged in answer to the said Appeal; and due considera-
    tion had this day of what was offered on either side
    in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual
    and Temporal in the Court of Parliament of Her
    Majesty the Queen assembled, That the said Order
    of Her Majesty's Court of Appeal of the 27th day of
    June 1979 complained of in the said Appeal be, and
    the same is hereby Set Aside save as to Costs before
    Mr. Justice May and the Legal Aid Taxation of the
    Respondent's Costs in the Court of Appeal and that
    it be Declared that the Appellants may rely on the
    Gulf Oil Refining Act 1965 as a defence in any
    proceedings for nuisance but only so far as the nuisance
    can be shown to be the inevitable result of erecting
    and operating a refinery: And it is further Ordered,
    That there be no order for Costs in this House save
    that the Respondent's Costs be taxed in accordance with
    provisions of Schedule 2 to the Legal Aid Act 1974:
    And it is also further Ordered, That the Cause be,
    and the same is hereby, remitted back to the Queen's
    Bench Division of the High Court of Justice to do
    therein as shall be just and consistent with this
    Judgment.


    HOUSE OF LORDS

    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.


    2

    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 HL 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 ChD 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.

    1. 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 ".

    2. 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)).

    3. 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.

    4. 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,

    10

    " 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

    11

    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.

    12

    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.

    313053 Dd 8013619 180 1/81


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