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[1972] 2 All ER 1073

Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2)

CHANCERY DIVISION

PLOWMAN J


1, 2, 3, 4, 5, 8, 9, 10, 19 MAY 1972



Local authority - Land - Power to appropriate land - Land no longer required for purpose for which acquired - Appropriation for planning purposes - Power to override easements and other rights - Land held by local authority for use as aerodrome - Plaintiffs aircraft manufacturers - Conveyance by local authority of land adjoining airfield for construction of aircraft factory - Conveyance conferring on plaintiffs right to use airfield for purposes of business - Local authority no longer requiring airfield as aerodrome - Local authority resolving to appropriate airfield and other land for purposes of housing scheme - Power of local authority, in absence of bad faith, to determine that land no longer required for purposes for which originally appropriated - Plaintiffs' claim that land still required for purposes of conveyance - Power of local authority to override plaintiffs' rights - Local Government Act 1933, s 163(1) - Town and Country Planning Act 1962, s 81.

Local authority - Land - Power to appropriate land - Exercise of power - Consent of Minister - Land acquired by authority in exercise (directly or indirectly) of compulsory powers - Acquisition of land for purposes of airfield - Authority prepared to acquire land compulsorily if necessary - Compulsory purchase order made but not confirmed - Agreement with owner for purchase of land instead - Authority subsequently resolving to appropriate land for other purposes - Whether land having been acquired in the exercise (directly or indirectly) of compulsory powers - Whether consent of Minister to subsequent appropriation necessary - Town and Country Planning Act 1959, ss 23(2) (b)8 30(5).

In 1935 the defendants, the local authority, wished to establish a municipal aerodrome at Wolverhampton and, at the same time, attract new industry to the area. Accordingly they entered into negotiations with the plaintiffs, who manufactured aircraft and aircraft parts and equipment and who wished to find a suitable airfield in the vicinity of which they could set up a factory. A site which the defendants had acquired in the 1890s for sewage disposal purposes was selected as the site of the proposed airfield but, as it was not large enough, the defendants proposed to acquire, compulsorily if necessary, an additional 72 acres of land. Although a compulsory purchase order in respect of the 72 acres was made, it was never in fact confirmed, and instead a contract was negotiated with the owner for the purchase of a much larger area, comprising 753 acres in all, the 72 acres being acquired under that contract. The defendants then appropriated the site which had been acquired for sewage disposal purposes and the 72 acres for aerodrome purposes. Following negotiations the defendants, in November 1936, conveyed 23 1/2 acres of land adjoining the airfield to the plaintiffs, together with the right for the plaintiffs to have access to, and to use, the airfield for test and delivery and other flights in connection with their business 'for ... ninety-nine years ... or so long as [the defendants] shall maintain the [airfield] as a Municipal Aerodrome whichever shall be the longer'. The plaintiffs and defendants entered into covenants which were expressed to be binding for the same period. Clause 5 of the conveyance provided: 'Without prejudice to the [defendants'] right to use dispose of or deal with their lands in and around the [airfield] and the [airfield] generally as and for such purposes as they shall from time to time think fit the [defendants] shall not in the exercise thereof unreasonably affect the rights of the use of the [airfield] hereby granted to the [plaintiffs].' For about 20 years the plaintiffs manufactured aircraft at their factory and made

[1972] 2 All ER 1073 at 1074

extensive use of the airfield. In subsequent years, however, they ceased to manufacture complete aircraft, manufacturing instead aircraft equipment, and in consequence made very little use of the airfield, although its future value to them was incalculable. The defendants no longer requiring the airfield as a municipal aerodrome, and taking the view that there was an urgent need for houses, applied for planning permission for a scheme for comprehensive development of a large area of land of which the aerodrome formed part. In January 1971 the defendants passed a resolution that approximately 213 acres of land held by them for aerodrome purposes be appropriated for planning purposes under the Town and Country Planning Acts 1962 to 1968 and claimed that, by virtue of s 81 (Section 81, so far as material, is set out at p 1080 b to d, post) of the 1962 Act, they were authorised, subject to planning permission and the payment of compensation, to proceed with the building scheme notwithstanding that it involved interference with the plaintiffs' airfield rights. The plaintiffs brought proceedings seeking to ensure the continuance of their rights. They contended that, in the absence of statutory authority, the defendants had no power to appropriate for one purpose land appropriated for another purpose, and that s 163(1) (Section 163(1), so far as material, is set out at p 1081 a, post) of the Local Government Act 1933 provided no such authority since the land was still required for the purposes for which it had been acquired in that it was still required as an aerodrome for the purposes of the 1936 conveyance. They further contended that the consent of the Minister was required to the appropriation of the 72 acres since that land must be taken to have been acquired by the defendants 'in the exercise (directly or indirectly) of compulsory powers' within the meaning of ss 23(2)(b) (Section 23(2), so far as material, is set out at p 1082 g to j, post) and 30(5) )Section30(5), so far as material, is set out at p 1083 d, post) of the Town and Country Planning Act 1959.

Held - The airfield had been validly appropriated for planning purposes and, subject to planning permission and the payment of compensation, the defendants were entitled to proceed with their housing scheme, notwithstanding its effect on the plaintiffs' rights over the airfield, for the following reasons--

(1) The defendants were the sole judges of the question whether or not the land was still required for the purposes for which it had been appropriated; their decision could not be challenged in the absence of bad faith and there was no evidence of bad faith on their part (see p 1081 d and p 1084 j, post); Attorney General v Manchester Corpn [1930] All ER Rep 653 applied.

(2) It did not follow that, because the land was still required for the purposes of the 1936 conveyance, the defendants could not honestly make the decision that the land was no longer required for aerodrome purposes. The airfield rights conferred on the plaintiffs by the 1936 conveyance were conferred by covenant or restriction and, therefore, being within proviso (ii) to s 163(1) of the 1933 Act, were unaffected by an appropriation under that section, which contemplated an appropriation notwithstanding the existence of such rights. It followed therefore that the preservation of those rights was not a purpose for which the aerodrome was still required; the only relevant purpose for which the appropriations in question had been made was the provision of a municipal aerodrome (see p 1082 c, post).

(3) The consent of the Minister to the appropriation was not required by ss 23(2)(b) and 30(5) of the 1959 Act since the 72 acres had not been acquired by the defendants in the exercise (directly or indirectly) of compulsory powers but by agreement; to come within s 23(2) it was necessary that compulsory powers should in fact have been exercised and not merely threatened. Neither could it be argued that the acquisition came within s 30(5) as an acquisition by the defendants by agreement 'at a time when they were authorised by or under an enactment to acquire the land compulsorily', for those words were limited to cases where land had been

[1972] 2 All ER 1073 at 1075

acquired by agreement at a time when its purchase had been authorised either by a special Act of Parliament or by the confirmation of a compulsory purchase order (see p 1083 c f and g, post).

Notes

For the power of a local authority to appropriate land, see 24 Halsbury's Laws (3rd Edn) 598, 599, para 1103, and 37 ibid 483, 484, para 605.

For the Local Government Act 1933, s 163, see 19 Halsbury's Statutes (3rd Edn) 492.

For the Town and Country Planning Act 1959, ss 23, 30, see 36 Halsbury's Statutes (3rd Edn) 50, 59.

For the Town and Country Planning Act 1962, s 81, see 36 Halsbury's Statutes (3rd Edn) 150. Section 81 was repealed by the Town and Country Planning Act 1971, s 292 and Sch 25, and replaced by ibid s 127 with effect from 1 April 1972.

Cases referred to in judgment

Attorney General v Hanwell Urban District Council [1900] 2 Ch 377, 69 LJCh 626, 82 LT 778, 11 Digest (Repl) 122, 141.

Attorney General v Manchester Corpn [1931] 1 Ch 254, [1930] All ER Rep 653, 100 LJCh 33, 144 LT 112, 11 Digest (Repl) 119, 121.

Attorney General v Pontypridd Urban District Council [1906] 2 Ch 257, 75 LJCh 578, 95 LT 224, 70 JP 394, 11 Digest (Repl) 122, 142.

Attorney General v Westminster City Council [1924] 2 Ch 416, [1924] All ER Rep 162, 93 LJCh 573, 131 LT 802, 88 JP 145, 38 Digest (Repl) 270, 750.

Cases also cited

Achilli v Tovell [1927] 2 Ch 243.

Attorney General (at the relation of Allen) v Colchester Corpn [1955] 2 All ER 124, [1955] 2 QB 207.

Beswick v Beswick [1967] 2 All ER 1197, [1968] AC 58.

Chatsworth Estates Co v Fewell [1931] 1 Ch 224, [1930] All ER Rep 142.

Doherty v Allman (1878) 3 App Cas 709.

Dowty Boulton Paul Ltd v Wolverhampton Corpn [1971] 2 All ER 277, [1971] 1 WLR 204.

Marten v Flight Refuelling Ltd [1961] 2 All ER 696, [1962] Ch 115.

Mint v Good [1950] 2 All ER 1159, [1951] 1 KB 517.

Newcomen v Coulson (1877) 5 Ch D 133.

Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, [1914-15] All ER Rep 124.

Redland Bricks Ltd v Morris [1969] 2 All ER 576, [1970] AC 652.

Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, [1891-94] All ER Rep 838.

Staines Urban District Council's Agreement, Re, Triggs v Staines Urban District Council [1968] 2 All ER 1, [1969] 1 Ch 10.

Stourcliffe Estates Co Ltd v Bournemouth Corpn [1910] 2 Ch 12, [1908-10] All ER Rep 785.

Tophams Ltd v Sefton (Earl) [1966] 1 All ER 1039, [1967] 1 Ac 50; rvsg sub nom Tophams Ltd v Sefton (Earl) [1965] 3 All ER 1, [1965] Ch 1140.

Action and adjourned summons

This was an action commenced by writ issued on 22 September 1970 by the plaintiffs, Dowty Boulton Paul Ltd, against the defendants, Wolverhampton Corporation. The plaintiffs also issued an originating summons, dated 23 February 1971, against the defendants. The action and the summons were heard together. By their action, the plaintiffs claimed, inter alia, (1) a declaration that on the true construction of conveyances dated 30 November 1936 and 23 November 1938 and an agreement dated 19 October 1953 they were entitled to use the defendants' airfield for so long as the plaintiffs used their factory adjoining the airfield and required the airfield for the purposes set out in the conveyances and agreement; (2) a declaration that for so long as they used their factory in accordance with the conveyance and agreement,

[1972] 2 All ER 1073 at 1076

and required the airfield for the purposes there set out, in the event that the defendants were in breach of contract and failed to maintain the airfield in accordance with their contractual obligations, the plaintiffs were entitled to maintain the airfield and recover the costs as damages; alternatively, (3) an order that the defendants use all reasonable endeavours to maintain the airfield fit for use. By their summons the plaintiffs claimed declarations (1) that on the true construction of ss 81 and 87 of the Town and Country Planning Act 1962, and s 163(as amended) of the Local Government Act 1933, (2) that on the true construction of an agreement dated 26 August 1935 and (3) that on the true construction of the conveyance dated 30 November 1936, the defendants were not entitled to vary the appropriation of the land the subject of such agreement and conveyance in breach of covenant so that the land could be used for a purpose other than that of an airfield. The defendants in their amended defence stated that they had by resolution passed on 4 January 1971 appropriated the airfield for planning purposes under the Town and Country Planning Acts 1962 to 1968, and admitted that they had, since 1962, been considering the redevelopment of the airfield and other land in its neighbourhood, and had submitted a formal application for planning permission to the Department of the Environment. They further alleged that, on the facts, the plaintiffs were not entitled to the relief claimed, and that, under the powers vested in them by s 81 of the Town and Country Planning Act 1962 they were, or would, on the grant of planning permission, be entitled to interfere with the plaintiffs' rights subject to the payment of proper compensation, which they were and had at all times been willing to pay. The facts are set out in the judgment.

K R Bagnall and Robert Pryor for the plaintiffs.

Jeremiah Harman QC and Elizabeth Appleby for the defendants.

Cur adv vult

19 May 1972. The following judgment was delivered.



PLOWMAN J

read the following judgment. This is a dispute concerning Wolverhamption Aerodrome and its future. The defendants, Wolverhampton Corporation, take the view that it has had its day as a municipal airport and wish to use it for housing development in view of the need for housing accommodation. The question which I have to decide is whether they are entitled to do so having regard to their commitments to the plaintiffs. I should make it clear at the outset that I am not concerned with any question of policy or of local politics, but only with the legal aspects of the affair.

The history of the matter goes back to 1935, when the defendants were proposing to establish a municipal aerodrome. At the same time, they were anxious to attract new industry to the area. This coincided with the with of the plaintiffs, whose business was the manufacture of aircraft and aircraft parts and equipment, to find a suitable airfield, in the vicinity of which they could set up a factory. The parties came together and negotiations ensued. Wolverhampton Airfield (or the Barnhurst site, as it was then known) was selected as the site for the proposed airfield, in preference to an alternative site at Perton, largely in order to meet the plaintiffs' requirements and because the defendants wanted the plaintiffs to come to Wolverhampton. The Barnhurst site was already owned by the defendants, who had acquired it in the 1890s for sewage disposal purposes, but it was not large enough for the proposed airfield, and the defendants therefore proposed to acquire, compulsorily if necessary, an additional 72 acres of land incorporate it with the Barnhurst site.

The negotiations between the plaintiffs and the defendants led to a written agreement dated 26 August 1935, to which I must briefly refer, although it was superseded by a conveyance to which I will refer in a moment. The agreement was made between the defendants (therein called 'the Corporation'), of the one part, and Boulton Paul Aircraft Ltd (called 'the Company'). Boulton Paul Aircraft Ltd was the name of the plaintiffs at that time. It changed when they were taken over by the Dowty Group in 1961 to its present title. The agreement recites:

[1972] 2 All ER 1073 at 1077

'WHEREAS the Corporation have decided subject to such certificates consents etcetera as may be necessary to establish a Municipal Aerodrome on a piece of land known as "the Barnhurst" as shewn edged round with pink on the plan hereto annexed which site is the property of the Corporation and on other adjoining land hereinafter referred to not now belonging to the Corporation which piece of land and adjoining land are hereinafter called "the aerodrome". AND WHEREAS the Corporation propose to acquire the said adjoining land being seventy-two acres or thereabouts as shown edged grey on the said plan being the estimated extent of land necessary to add to the lands now owned by them to obtain a licence to use the said lands as an aerodrome. AND WHEREAS the Company are manufacturers of aircraft and intend to establish a factory on land of the Corporation near the aerodrome in accordance with the terms hereinafter referred to. Now THEREFORE IT IS AGREED as follows:--1. THE Corporation will negotiate for the acquisition of the said adjoining seventy-two acres of land hereinbefore mentioned and unless they can acquire the same with vacant possession by agreement they will forthwith take all necessary steps to obtain a compulsory purchase order for the acquisition thereof.'

Clause 3 provides:

'SUBJECT to the terms of Clause 11 hereof the Corporation will grant to the Company and the Company will accept and enter into a lease of a site on the land of the Corporation on the western side of the aerodrome as shewn coloured brown on the said plan (hereinafter called "the site") containing twenty-three and one-half acres and subject to the same not being required as part of the adjoining highway of the land coloured blue on the said plan containing an area of 0·438 acres or thereabouts for a term of ninety-nine years at a yearly rental equivalent to four per centum of the present value of the said site as determined by the District Valuer for the purpose of building a factory thereon such lease to be in the form set out in the Schedule hereto and the Corporation agree to indemnify the Company against any road-making charges which may become payable in respect of the frontage of the said land to Pendeford Lane.'

Clause 5 provides:

'THE Corporation subject to the terms of Clause 11 hereof will allow the Company to have the use of the aerodrome when prepared for use and ready for the purposes of the Company and when licensed as aforesaid so far as a licence is necessary to enable the Company to use the aerodrome as hereinafter provided free of charge except as hereinafter provided for the following purposes during the continuance of their lease:--(a) Test and delivery and other flights in connection with their business as designers manufacturers and repairers of aircraft. (b) Air flying in connection with their business of running a flying training school ... '

In fact, the lease referred to was never granted. Instead, the defendants conveyed the factory site to the plaintiffs by a conveyance dated 30 November 1936, which is the crucial document in this case and I must refer to it in some detail. It is made between the defendants, (therein called 'the Corporation') of the one part, and the plaintiffs (called 'the Company') of the other part. It recites that the corporation are the estate owners in respect of the fee simple of the property conveyed and that the corporation have agreed with the company for the sale of the property for the sum of £1,645. In consideration of that sum of money, the corporation granted to the company the 23 1/2 acres of land in question, together also with a right of way over certain land shown on the plan, for a period of 99 years from 1 December 1935--

'or as long as the Corporation shall maintain the Airport as a Municipal Aerodrome whichever shall be the longer TO HOLD unto the Company in fee simple ... '

[1972] 2 All ER 1073 at 1078

In cl 2 of this deed there are a series of covenants by the company, which covenants with the corporation, inter alia, as follows:

'(ii) That it will without undue delay proceed to erect a factory upon the said piece of land ... that it will submit plans elevations and specifications of the said factory to be approved by the Corporation and that such factory shall cost not less than Fifty Thousand Pounds ... '

Then, in sub-cl (viii):

'That it will use the said factory and any other buildings erected on the land hereby assured for the purpose of designing manufacturing assembling and repairing aircraft and aeronautical equipment or parts thereof and accessories thereto and for the purpose of carrying on a school for the training and teaching of flying and for no other purpose without the written consent of the Corporation first obtained such consent not to be unreasonably withheld.'

Sub-clause (ix) provides:

'That it will not do or permit to be done on the property hereby assured or any part thereof anything which may be or become a nuisance or cause damage to the Corporation or the tenants or occupiers of other property in the neighbourhood Provided always that nothing herein contained shall be deemed to prevent the Company from carrying on in a reasonable and proper manner on the property hereby assured its said business of designing manufacturing assembling and repairing aircraft and aeronautical equipment and parts thereof and accessories thereto or from carrying on in a reasonable and proper manner on the property hereby assured a school for the training and teaching of flying or from using the airport in connection with such business or businesses as aforesaid.'

At the end of cl 2 there is a proviso which is as follows:

'PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that the covenants by the Company hereinbefore contained except sub-clause (xi) of this clause and each and every one of them shall remain in force and be binding upon the Company and so far as practicable the land and premises hereby assured for a period only of ninety-nine years from the first day of December One thousand nine hundred and thirty-five or so long as the Corporation shall maintain the Airport as a Municipal Aerodrome whichever shall be the longer.'

In cl 3 there are covenants by the corporation with the company. They include the following:

'(ii) That they will allow the Company to use the Airport when prepared for use and ready for the purposes of the Company and licensed as an aerodrome (provided that the Corporation shall not be obliged to license the aerodrome for night flying or as a customs aerodrome) so far as a licence is necessary to enable the Company to use the Airport for such purposes as are hereinafter in this clause mentioned free of charge except as hereinafter provided for the following purposes namely:--(a) For the purpose of test delivery and other flights in connection with their business of designing manufacturing assembling and repairing aircraft and parts thereof and accessories thereto. (b) For the purpose of flying in connection with their business of carrying on a school for the training and teaching of flying. Provided that such user shall be subject to the reasonable requirements of the Corporation for their use of the Airport as a Municipal Aerodrome for flying purposes [I need not read the remainder of that proviso; but there is a further proviso which is as follows:] Provided further that the Company shall pay a rental of Fifty pounds per annum in

[1972] 2 All ER 1073 at 1079

respect of the user specified in paragraph (a) of this sub-clause and a further rental of Fifty Pounds per annum in respect of the user specified in paragraph (b) of this sub-clause while such users respectively continue. (iii) That subject to a licence for the Airport to be used as an aerodrome being obtained and to the consent of any Government Department to the raising of loans and in any other matter which may be necessary they will do all in their power to keep and maintain the surface and boundary fences of the Airport in such fit and proper state of repair and condition as will enable the Company to use the Airport as provided by paragraph (a) of sub-clause (ii) of Clause 3 hereof.

At the end of the corporation's covenants there is this proviso:

'PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that the covenants by the Corporation contained in sub-clauses (ii) to (vi) (both inclusive) of this clause and each and every one of them shall remain in force and be binding upon the Corporation for a period only of ninety-nine years from the first day of December One thousand nine hundred and thirty-five or so long as the Corporation shall maintain the said Wolverhampton Airport as a Municipal Aerodrome whichever shall be the longer.'

Finally, I read cl 5, which is as follows:

'WITHOUT prejudice to the Corporation's right to use dispose of or deal with their lands in and around the Airport and the Airport generally as and for such purposes as they shall from time to time think fit the Corporation shall not in the exercise thereof unreasonably affect the rights of the use of the Airport hereby granted to the Company.'

That conveyance was modified in some respects by an agreement dated 19 October 1953, but I need only notice that the permitted user of the plaintiffs' factory was extended to light industrial purposes and their right to use the airport was extended correspondingly.

For something like 20 years the plaintiffs manufactured aircraft at the factory and made extensive use of the airfield. They then ceased to manufacture complete aircraft, and of recent years have been manufacturing aircraft equipment, specialising in power hydraulic systems for aircraft, including the Concorde. Consequently, they have made much less use of the airfield. They never in fact operated a flying training school as contemplated by the 1936 conveyance, and latterly their use has been confined to executive flights by their own aircraft and visiting aircraft.

This does not, of course, mean that their airfield rights have ceased to be of any value to them. Of the 99 years referred to in the 1936 conveyance, over 60 years are unexpired and, in the course of the next 60 years, this Wolverhampton airfield may well again become of vital importance to the plaintiffs. Equally, of course, it may not. It all depends on future developments in flying, which no one can foresee. Although the plaintiffs do not at the present moment manufacture aircraft, they still have the skills, the know-how and the men to do so, should their services be required. From the plaintiffs' point of view, therefore, their rights under the 1936 conveyance are of incalculable value to them if they are to maintain their eminent position in the aircraft industry.

The defendants, on the other hand, say that they no longer require the airfield as a municipal aerodrome. Their view is that there is an urgent and overriding need for houses for people to live in. There are some 3,000 people on their housing list and they have applied for planning permission for a scheme of comprehensive development of a large area of land of which the aerodrome forms only part. Accordingly, when their agreement with their airfield managers, Don Everall (Aviation) Ltd, expired, they did not renew it, and for over a year now the airfield has been closed. They claim that they are entitled to extinguish the plaintiffs' airfield

[1972] 2 All ER 1073 at 1080

rights under the 1936 conveyance, subject to the payment of compensation; the plaintiffs claim that they have no power to do so, and they ask for relief which will ensure the continuance of those rights.

I must now examine the legal position. The defendants' claim is based on s 81 of the Town and Country Planning Act 1962, which is now s 127 of the Town and Country Planning Act 1971. That section provides:

'(1) The erection, construction or carrying out, or maintenance, of any building or work on land which has been acquired or appropriated by a local authority for planning purposes, whether done by the local authority or by a person deriving title under them, is authorised by virtue of this section if it is done in accordance with planning permission, notwithstanding that it involves interference with an interest or right to which this section applies, or involves a breach of a restriction as to the user of the land arising by virtue of a contract: [Then there is a proviso which is not relevant.]

'(2) This section applies to the following interests and rights, that is to say, any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support.'

Subsection (3) contains a provision for the payment of compensation. Subsections (4) and (5) are not relevant.

It is common ground that the plaintiffs' airfield rights fall within sub-s (2) and the defendants, as I have said, have applied for planning permission, but the Minister is withholding his decision pending the result of the present case. It is to be observed that the section applies if and only if the land in question has been acquired or appropriated by the defendants 'for planning purposes'.

The factual position with regard to appropriations is as follows. The relevant part of the Barnhurst site originally acquired for sewage disposal purposes was appropriated for aerodrome purposes in 1935, as was the additional 72 acres. In June 1952, 38 of those 72 acres were reappropriated for sewage disposal purposes. On 4 January 1971 the defendants passed the following resolution: it is headed 'Wolverhampton Airport', and two paragraphs of it are relevant:

'(a) That the decision of the Council to discontinue the provision of a Municipal Airport at the expiration of the current Management Agreement with Don Everall (Aviation) Ltd on 31st December 1970 be adhered to and that no temporary lease of the Airport for use as a private airfield pending redevelopment be granted. (b) That approximately 213 acres of land held by the Corporation for aerodrome purposes under the Civil Aviation Act 1949 be appropriated for planning purposes under the Town and Country Planning Acts 1962 to 1968.'

The 213 acres there mentioned is the land with which I am now concerned. The plaintiffs' case is that that was not a valid appropriation for reasons which I must now consider.

It is well settled that, in the absence of statutory authority, land of a local authority appropriated for one purpose cannot be appropriated to another purpose: see Attorney General v Hanwell Urban District Council, Attorney General v Pontypridd Urban District Council, Attorney General v Westminster City Council. The plaintiffs claim that there is no statutory authority which is available to the defendants in the present case. The defendants, however, claim that s 163(1) of the Local Government Act 1933 confers the necessary authority. Section 163(1), so far as material, provides:

[1972] 2 All ER 1073 at 1081

'Any land belonging to a local authority and not required for the purposes for which it was acquired or has since been appropriated may be appropriated for any other purpose approved by the Minister for which the local authority are authorised to acquire land: Provided that [then I can ignore the first proviso and turn to the second] (ii) the appropriation of land by a local authority shall be subject to any covenant or restriction affecting the use of the land in their hands.'

That, as I understand it, and as applied to the present case, is saying in effect, first, that the defendants, with the consent of the Minister, can appropriate land, hitherto appropriated for aerodrome purposes, for planning purposes, if it is no longer required for aerodrome purposes, and secondly that any such reappropriation is not of itself to affect the plaintiffs' existing rights over the airfield, or, in other words, that the plaintiffs' rights do not prevent appropriation.

The plaintiffs dispute the defendants' claim to be entitled to rely on s 163, because, they say, the airfield is still required for aerodrome purposes. The way counsel for the plaintiffs put it was this. Speaking of the 1936 conveyance, he said 'Whilst that contract stands, they (that is to say, the defendants) still require it for the purposes of the contract'. I am unable to accept that submission. In the first place the defendants are, in my judgment, sole judges of the question whether or not the land is still required for the purposes for which it has been appropriated and their decision cannot be challenged in the absence of bad faith. That point is, I think, concluded by Attorney General v Manchester Corpn. That was a case on s 95 of the Public Health Acts Amendment Act 1907, the relevant part of which is as follows:

'... any lands acquired by a local authority and not required for the purposes for which those lands have been acquired may be appropriated for any purpose approved by the Local Government Board [and then a little later on:] Nothing in this section shall affect any rights acquired ... under any agreement in writing ... '

Maugham J said ([1931] 1 Ch at 270, [1930] All ER Rep at 656):

'In the first place the question arises, What is the meaning of the phrase "not required for the purposes for which those lands have been acquired"? Who is to be the judge of that? Is it a question of fact on which the Court may express an opinion, or is it a question on which the determination of the local authority is to prevail? In answering that question, I think that I have to compare s 175 of the Public Health Act, 1875. That section, after providing power to purchase, goes on to say: [and I quote: "Any lands acquired by a local authority in pursuance of any powers in this Act contained and not required for the purpose for which they were acquired shall (unless the Local Government Board otherwise direct) be sold at the best price that can be gotten for the same, and the proceeds of such sale shall be applied towards discharge, by means of a sinking fund or otherwise, of any principal moneys which have been borrowed by such authority on the security of the fund or rate applicable by them for the general purposes of this Act, or if no such principal moneys are outstanding shall be carried to the account of such fund or rate."] I think that in such a case, either under s. 175 of the earlier Act, or under s. 95 of the amending Act, the local authority, acting in good faith, must be the sole judges of whether the land is no longer required, or is not required for the purpose for which the land was acquired. Of course they must act honestly. I need hardly say that the contrary is not suggested here. But I do not see any ground for thinking that the Court

[1972] 2 All ER 1073 at 1082

can substitute its judgment upon such a question for the local authority who are given by these Acts wide powers of local government. Accordingly, I must take it that, in the circumstances of this case, it has been determined in good faith by the Corporation that the land in question is not required for the purpose for which it was acquired in 1875.'

Counsel for the plaintiffs' answer to this is to say that it was impossible for the defendants to reach an honest decision that the land was no longer required for aerodrome purposes when it was obviously still required for the purposes of the 1936 conveyance. Again I disagree. The airfield rights conferred on the plaintiffs by the 1936 conveyance were conferred by covenant or restriction and are therefore within proviso (ii) to s 163(1); that is to say, they are unaffected by an appropriation under the section which contemplates an appropriation notwithstanding the existence of such rights. It must follow, in my judgment, that the preservation of those rights is not a purpose for which the aerodrome is still required. In my judgment, the only relevant purpose for which the appropriations with which I am concerned were made was the provision of a municipal aerodrome.

Another point arises on s 163. Under that section the approval of the Minister is required to an appropriation. That requirement has been modified by s 23 of the Town and Country Planning Act 1959, and there is a dispute whether, in the light of the modification, the Minister's consent is or is not necessary in the present case. No such consent was in fact obtained. Section 23, so far as material, is as follows:

'(1) Subject to the following provisions of this section, where by any enactment--(a) power is conferred on any authority to whom this Part of this Act applies, or on any class of such authorities, to appropriate land for any purpose, whether the purpose is defined in the enactment specifically or by reference to some other power exercisable by the authority or class of authorities in question, but (b) that power is so conferred subject to a provision (in whatever terms the provision is expressed, and whether it is contained in the same or in any other enactment) that the power is not to be exercised except with the consent of a Minister specified in that provision, or for a purpose approved by a Minister so specified, with or without a further provision enabling conditions to be imposed by such a Minister in respect of the exercise of the power, the enactment shall have effect, in relation to any exercise of the power after the commencement of this Act by an authority to whom this Part of this Act applies, as if it conferred that power free from any such provision as is mentioned in paragraph (b) of this subsection.

'(2) The exercise after the commencement of this Act, by any authority to whom this Part of this Act applies, of any power of appropriation in relation to which the preceding subsection has effect shall be subject to the following provisions, that is to say,--[I need not read (a)] (b) land which has been acquired (whether before or after the commencement of this Act) by an authority to whom this Part of this Act applies, and has been so acquired by that authority in the exercise (directly or indirectly) of compulsory powers, and has not subsequently been appropriated by that authority for any purpose other than that for which it was so acquired, shall not be appropriated by that authority for any other purpose except with the consent of the Minister who, at the time of the appropriation, is the Minister concerned with the function for the purposes of which the land was acquired by the authority.'

In other words, and as applied to the facts of the present case, the question is whether the 72 acres to which I have previously referred were acquired by the defendants 'in the exercise (directly or indirectly) of compulsory powers'. I will refer in a moment to s 30(5) of the Act, which throws further light (if that is the right word) on the meaning of that expression, but I must first say something more about the facts.

[1972] 2 All ER 1073 at 1083

In 1935 a compulsory purchase order in respect of the 72 acres was made pursuant to the Public Works Facilities Act 1930 and sealed. There is some doubt whether it was ever submitted for confirmation, but it was never in fact confirmed. Instead, a contract was negotiated with the owner for the purchase of a much larger area known as the Pendeford Estate and comprising 753 acres in all (including the 72 acres) and the 72 acres were acquired under that contract. As a matter of fact, therefore, the 72 acres were not acquired in the exercise of compulsory powers, at any rate directly.

As to the use of the word 'indirectly' in s 23(2) of the 1959 Act, counsel for the plaintiffs submitted that the mere making of the compulsory purchase order by the defendants, although never confirmed, was an indirect exercise of compulsory powers. Counsel for the defendants, on the other hand, submitted that the word 'indirectly' was referable to a case where land was acquired for the purposes of one local authority by the exercise of compulsory powers by another local authority (for example, under s 28 of the Town and Country Planning Act 1968). I prefer counsel for the defendants' suggestion, because the subsection appears to me to predicate that compulsory powers shall in fact have been exercised and not merely threatened.

I turn then to s 30(5) of the 1959 Act, which provides:

'For the purposes of this Part of this Act land shall be taken to have been acquired by an authority in the exercise (directly or indirectly) of compulsory powers if it was acquired by them compulsorily or was acquired by them by agreement at a time when they were authorised by or under an enactment to acquire the land compulsorily ... '

Counsel for the plaintiffs argues, as I understand it, that the 72 acres were acquired by agreement at a time when the defendants were authorised by or under an enactment (namely, the Public Works Facilities Act 1930) to acquire the land compulsorily, and therefore it must be taken to have been acquired in the exercise (directly or indirectly of compulsory powers. In my judgment, however, what the latter part of what I read of s 30(5) is referring to is the case where the land has been acquired by agreement at a time when its purchase had been authorised either by a special Act of Parliament or by the confirmation of a compulsory purchase order. The authority conferred by the confirmation of a compulsory purchase order can, I think, properly be described as an authority conferred 'under an enactment', that is to say, pursuant to the authority of the general Act under which the compulsory purchase order was made.

In the result, I hold that the Wolverhampton Airfield has been validly appropriated for planning purposes, and that, subject to planning permission and to the payment of compensation, the defendants will be entitled to proceed with their housing scheme notwithstanding its effect on the plaintiffs' rights over the airfield.

That being so, I must dismiss the plaintiffs' action and also its originating summons, since in both cases the plaintiffs are claiming relief on the basis that the defendants are not entitled to bring their rights in respect of the airfield to an end.

Finally, there is one other matter to which I must refer. In para 3 of their reply and the particulars delivered thereunder, the plaintiffs charge the defendants with having acted mala fide in purporting to appropriate the airfield for planning purposes on 4 January 1971. It is said that their true intention was to avoid the burden of maintaining the airport so as to comply with their agreement with the plaintiffs and that they do not genuinely require the airport for housing and ancillary development at the present time.

I have no hesitation in rejecting any suggestion of mala fides. I have seen the defendants' town clerk, Mr Williams, and their engineer, surveyor and planning officer, Mr Schofield, in the witness box. Both were completely honest witnesses, and I will quote one or two brief extracts from their evidence. I refer first of all

[1972] 2 All ER 1073 at 1084

to Mr Williams's evidence and to his cross-examination, where counsel for the plaintiffs, after quoting from a memorandum by the deputy town clerk, asked:

'Q That is still the view of the [defendants], is it not, that [they] made a bad bargain in 1936? A No; I do not think that that has been in the contemplation of my members. I think they have looked at the facts of 1970 and the use to which this land was being put, and in their opinion, having regard to the user or the non-user which the plaintiffs have made, or said about the need for the use of this airport, and having regard to the housing waiting list and the shortage of land, they decided that the land could be put to better use. They have never sought to take advantage of the [plaintiffs]. They have always wanted to do the right thing by the [plaintiff] and to pay the appropriate compensation.'

Then, in re-examination, the first question which he was asked was:

'Q In your view, as chief executive of Wolverhampton, having talked about the availability of space at Telford, is there a need--not a demand, but a need--for housing, shopping, education and recreational development on the land at Pendeford Airfield? A Oh, absolutely, yes; a desperate need.'

Mr Schofield said this in cross-examination of his evidence:

'The [defendants], of course, are in the situation and they have been in the situation right from the beginning that they have a demand for land for housing on the one side, their obligations under an agreement with a local company on the other side, providing work, and also the possibility, however near or remote it might be, that the airfield might have some use. They have continually had to weigh in the balance to them the relative importance of those things. [Counsel said: "Yes, I quite understand." The witness continued:] And they have been reluctant to use it for housing until they are literally forced into a position because of the housing situation to use it, and also having got to a stage where they do not think the airfield side of its is anything like as important as the need to house people in Wolverhampton near their work.'

In re-examination, he was asked:

'Q What you seem to be saying is that for upwards of 10 years there has been a constant pressure from the [defendants] to use this land for housing purposes. A I would not say constant pressure. There has been a constant consideration of the relative merits of using it for housing purposes. It was merely a question of considering it from time to time and following up the relative merits of what was there and what the use of the airfield was against the demand for housing accommodation.

'Q Is all this alleged weighing up and all these minutes and consideration just a screen for getting out of the obligation to keep up the airfield? A This is a local firm employing a large number of people and the [defendant] have a duty also to consider those people and the employment of those people. They are reluctant to do anything to interfere with the agreement. They would be even more reluctant if [the plaintiffs] at any time--and they have not at any time--said this was going to affect the employment of a large number of people.

'Q But is it really a screen which you Council officials put up? A No. We want this for housing. It is desperate. It has got to that stage.'

I accept that evidence as representing the honest opinion of the defendants and their officers. There was no had faith on their part.

Action and summons dismissed.

Solicitors: Gregory, Rowcliffe & Co agents for Midwinter, Jones & Co, Cheltenham (for the plaintiffs); Sharpe, Pritchard & Co agents for Town Clerk, Wolverhampton (for the defendants).

Jacqueline Metcalfe Barrister