Mills & Rockleys Ltd v. Leicester City Council
[1946] 1 All ER 424(Judgment by: Henn Collins J)
Between: Mills & Rockleys Ltd
And: Leicester City Council
Judges:
Lord Goddard LCJ
Humphreys J
Henn Collins J
Subject References:
Town and Country Planning
Advertisements
Power of local authority to prohibit the use of a wall of dwelling-house for advertising purposes
"Structure"
Legislative References:
Town and Country Planning Act, 1932 (c 48) - s 47(5), (8)
Town and Country Planning (Interim Development) Act, 1943 (c 29) - s 5; s 15; Sched I
Judgment date: 29 January 1946
Judgment by:
Henn Collins J
I agree. I think the first and the fundamental question is whether the 1943 Act has enlarged the ambit of schemes, or the powers to make schemes in respect of advertisements, beyond the provisions of the principal Act of 1932. The 1943 Act provides, by the interpretation section, sect 14(3), in these terms:
'Any reference in this Act to the principal Act ... [that is, the Act of 1932] shall ... be construed as a reference to that Act ... as amended by ... this Act.'
There is no express amendment, such as in regard to advertisements, in the 1943 Act of the 1932 Act, and therefore prima facie when they are to be read together, the governing Act is the principal Act. Sect 5(1) of the 1943 Act is that under which the resolution of the order complained of purported to have been made, and that provides that
'If while a resolution to prepare or adopt a scheme under the principal Act is in force with respect to any area, any development of land within that area is carried out after the commencement of this Act otherwise than in accordance with the terms of the interim development order or of permission granted under that order, then, subject to the provisions of this section, the interim development authority may, if they are satisfied that it is necessary or expedient so to do having regard to the provisions then proposed to be included in the scheme ... (b) where the development consists of any use of the land ... by order prohibit that use ....'
The controlling words of that section lie, it seems to me, in the latter part of sub-sect 1, that the authority "may if they are satisfied that it is necessary or expedient so to do having regard to the provisions then proposed to be included in the scheme," because one cannot conceive that they could find it "necessary or expedient" to include in the scheme anything which they had no power to include. That therefore throws one back on the principal Act, and one has to ascertain whether, under the principal Act, they could make an order prohibiting the use of the side of the dwelling-house for the purposes of an advertisement.
The principal Act, by sect 11, specifies certain things which must be contained in a scheme; by sect 12, certain things that may be included; and there is, for our purposes, a provision in sect 47(8) as to a particular matter which shall not be included in a scheme, and the section is in these terms:
'Save as provided by this section, a scheme shall not contain any provision prohibiting or controlling the erection or use of structures for the purpose of advertising ....'
Reading those two Acts together, and stopping there for a moment, it is quite clear that an order prohibiting the use of this particular side of this dwelling-house for the purposes of an advertisement could form no part of the scheme, under the principal Act. Counsel for the respondents was driven back to saying that this, though a hoarding, was not a "structure" within the meaning of the Act, but that view does not commend itself to my mind. I think it is quite clear that under the principal Act no such order as has been made could have been made, and that the principal Act is dominant, with respect to the ambit of a scheme, subject to any amendment which the later Act has provided. But no amendment has been made in respect of advertisements.