[HOUSE OF LORDS]

AND

Nuisance - Statutory undertaker, liability of - Oil refinery - Site for refinery acquired under private Act of Parliament - No express power to operate refinery or to construct refinery of particular specification - Whether defence of statutory authority to claim for nuisance - Gulf Oil Refining Act 1965 (c. xxiv), s. 5 (1)

The preamble to the Gulf Oil Refining Act 1965 recited that in order to meet the increasing public demand for the products of the appellant company "it is essential that further facilities for importation of crude oil and petroleum products and for their refinement should be made available"; that the appellants intended to establish a refinery in the parish of L; that it was expedient that in connection therewith the appellants should be empowered to construct the works authorised by the Act including jetties for the accommodation of vessels (including large tankers) for the reception from such vessels of crude oil and petroleum products for the proposed refinery and that it was expedient for the appellants to be empowered to acquire lands. By section 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 ... as it may require for the purposes of the authorised works or for the construction of a refinery in the parish of Llanstadwell ..."

Under section 15 (1) they were authorised to construct certain works; but the section made no provision for the payment of compensation for any damage caused. Section 16 authorised the construction and the use of subsidiary works, such as railways, and required the defendants to make reasonable compensation for any damage caused by exercise of their powers under that section. The Act contained no specification or details of the refinery which the appellants proposed to construct nor were there any provisions for compensation for damage which it might cause.

Pursuant to the powers conferred the defendants constructed an oil refinery and subsidiary works on almost a square mile of land between the village in which the plaintiff lived, about, half-a-mile inland, and the seashore. The refinery started operating in 1967. There were complaints by villagers, some of whom brought actions for nuisance against the defendants. The plaintiff's action was taken as a test case. Her statement of claim alleged nuisance by noxious odours emanating from the refinery, vibrations and offensive noise levels. There was no allegation of damage to property but the plaintiff alleged that she and members of her family sustained personal injury and had suffered damage and expense and lived in fear of explosion at the refinery. The defendants relied on the defence of statutory authority. On a preliminary point of law May J. held that the defendants could rely on the Act of 1965 as having authorised the construction and operation of the oil refinery. The Court of Appeal reversed his decision.

On appeal by the defendants:-

Held, allowing the appeal (Lord Keith of Kinkel dissenting), that section 5 (1) expressly or by necessary implication gave authority to construct and operate on the land a refinery commensurate with the facilities for unloading, with the extent of the land acquired and with the facilities provided by the railway lines to be constructed and that statutory authority conferred on the appellants immunity from proceedings for any nuisance which might be the inevitable result of constructing a refinery on the land, however carefully sited, constructed and operated (post, pp. 192A-C, 193D-F, 195C, F-G, 202E-G).

Manchester Corporation v. Farnworth [1930] A.C. 171, H.L.(E.) applied.

Metropolitan Asylum District v. Hill (1881) 6 App.Cas. 193, H.L.(E.) distinguished.

Decision of the Court of Appeal [1980] Q.B. 156; [1979] 3 W.L.R. 523; [1979] 3 All E.R. 1008 reversed.

The following cases are referred to in their Lordships' opinions:

Altrincham Union Assessment Committee v. Cheshire Lines Committee (1885) 15 Q.B.D. 597, C.A.

Edgington v. Swindon Corporation [1939] 1 K.B. 86; [1939] 4 All E.R. 57.

Geddis v. Proprietors of Bann Reservoir (1878) 3 App.Cas. 430, H.L.(I.).

Hammersmith and City Railway Co. v. Brand (1869) L.R. 4 H.L. 171, H.L.(E.).

London, Brighton and South Coast Railway Co. v. Truman (1885) 11 App.Cas. 45, H.L.(E.).

Manchester Corporation v. Farnworth [1930] A.C. 171, H.L.(E.).

Metropolitan Asylum District v. Hill (1881) 6 App.Cas. 193, H.L.(E.).

Rex v. Pease (1832) 4 B. & Ad. 30.

Sturges v. Bridgman (1879) 11 Ch.D. 852, C.A.

Vaughan v. Taff Vale Railway Co. (1860) 5 H. & N. 679.

The following additional cases were cited in argument:

Canadian Pacific Railway Co. v. Parke [1899] A.C. 535, P.C.

Emsley v. North Eastern Railway Co. [1896] 1 Ch. 418, C.A.

Jordeson v. Sutton Southcoates and Drypool Gas Co. [1898] 2 Ch. 654.

Kennaway v. Thompson [1980] 3 W.L.R. 361; [1980] 3 All E.R. 329, C.A.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260; [1959] 3 W.L.R. 346; [1959] 3 All E.R. 1, H.L.(E.).

Smeaton v. Ilford Corporation [1954] Ch. 450; [1954] 2 W.L.R. 668; [1954] 1 All E.R. 923.

APPEAL from the Court of Appeal.

This was an appeal from the Court of Appeal (lord Denning M.R. and Cumming-Bruce L.J.) reversing a decision of May J. The issue arising in this appeal was whether the appellants, Gulf Oil Refining Ltd. ("Gulf") could rely on 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 sought to rely on the Act as providing the defence of "statutory authority" to the claims of Mrs. Elsie May Allen, the respondent, for nuisance arising out of the operation of the refinery in fact constructed and operated by Gulf at Waterston. Gulf contended, 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 facts are stated in the opinion of Lord Wilberforce.

Charles Sparrow Q.C., F. M. Ferris Q.C. and J. M. Henty for the appellants.

John Davies Q.C. and Gordon Langley for the respondent.

Their Lordships took time for consideration.

January 29. 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 takers 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 other 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 Ltd. ("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 be 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.

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 and City Railway Co. 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 (1878) 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: 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 ... have been deposited."

My Lords, all of this shows most clearly that Parliament considered it in the public interest that a refinery, not merely the words (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:

"(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 purpose 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 October 1, 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 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 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, 6 App.Cas. 193. 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 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 Metropolitan Asylum District v. Hill, 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 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, 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."

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 compulsory only "for the purposes of the authorised works or for the construction of a refinery ... of 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 and South Coast Railway Co. 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 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, 6 App.Cas. 193, 203 and the other cases cited in Halsbury's Laws of England, 4th ed., vol. 1 (1973), 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 and City Railway Co. v. Brand, L.R. 4 H.L. 171, 215 et seq. per Lord Cairns.)

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 May 23, 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 June 27, 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 19th century cases concerned with the operation of railways under statutory powers, of which the best known are Rex v. Pease (1832) 4 B. & Ad. 30, and Vaughan v. Taff Vale Railway Co. (1860) 5 H. & N. 679. The correctness of these decisions was affirmed by this House in Hammersmith and City Railway Co. v. Brand, L.R. 4 H.L. 171. The majority of the consulted judges had expressed the view that these cases were wrongly decided. Bramwell B. had founded upon the absence in the Railways Clauses Consolidation Act 1845 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. section 86 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 Bramwell B. is entitled, that the cases of Rex v. Pease and Vaughan v. Taff Vale Railway Co. were rightly decided."

Geddis v. Proprietors of the Bann Reservoir, 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, 183 Lord Dunedin said:

"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 Act of 1965, 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 an the Harbours Clauses Act 1847. Among the excluded sections of the Act of 1845 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 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 detiled 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, 2½ 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 may 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 are 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 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, 603 per Lord Esher M.R.

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: Metropolitan Asylum District v. Hill, 6 App.Cas. 193, 208 perLord Blackburn. 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 statutory 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 [1930] A.C. 171 section 3 (1) (a) of the Manchester Corporation Act 1914 gave the corporation authority to "construct, maintain alter improve enlarge extend renew work and use" upon the site described "a station for generating electrical energy." 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 Act 1965"). 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 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 150 years the principles upon which statutes such as the Act of 1965 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 Act of 1965 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 Act of 1965 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.

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 Act of 1965 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 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.

Solicitors: Hextall, Erskine & Co. for Cartwrights, Bristol; Calow Easton for Price & Kelway, Milford Haven.

F. C.