United Kingdom House of Lords Decisions

" 1.—(1) If the Minister is satisfied, after consultation with any
" local authorities who appear to him to be concerned, that it is
" expedient in the national interest that any area of land should be
" developed as a new town by a corporation established under this
" Act, he may make an order designating that area as the site of the
" proposed new town.

" (2) The provisions of the First Schedule to this Act shall have
" effect with respect to the procedure to be followed in connection
' with the making of orders under this section; and sections sixteen
'' and seventeen of the Town and Country Planning Act, 1944 (which
" relate respectively to the validity and date of operation of orders
'' under section one of that Act, and to the registration of such orders
" in the register of local land charges) shall apply to an order made
'' under this section as they apply to an order made under section one
" of that Act."

" 1. Where the Minister proposes to make an order under section
" one of this Act, he shall prepare a draft of the order, describing
" the area to be designated as the site of the proposed new town
" by reference to a map, either with or without descriptive matter
" (which, in the case of any discrepancy with the map, shall prevail
" except in so far as may be otherwise provided by the draft order)
" together with such statement as the Minister considers necessary
" for indicating the size and general character of the proposed new
" town.

"2. Before making the order the Minister shall publish in the
" London Gazette, in one or more newspapers circulating in the
" locality in which the proposed new town will be situated, and in
" such other newspapers, if any, as he considers appropriate in the
" circumstances, a notice—

' (a) describing the area to be designated as the site of the
" proposed new town;

' (b) stating that the draft of an order under section one of this
" Act has been prepared by the Minister in relation thereto and
" is about to be considered by him;

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'' (c) naming a. place within the said area where a copy of the
'' draft order (including any map or descriptive matter annexed
" thereto) and of the statement required by the foregoing para-
" graph, may be seen at all reasonable hours) and

" (d) specifying the time (not being less than twenty-eight
" days from the publication of the notice in the Gazette) within
" which, and the manner in which, objections to the proposed
" order may be made,

" and shall, not later than the date on which the notice is published
" in the Gazette, serve a like notice on the council of the county and
" of the county district in which the land, or any part of the land, to
" which the order relates is situated, and on any other local authority
" who appear to him to be concerned with the order.

"3. If any objection is duly made to the proposed order and is
" not withdrawn, the Minister shall, before making the order, cause
" a public local inquiry to be held with respect thereto, and shall
" consider the report of the person by whom the inquiry was held.

"4. Subject to the provisions of the last foregoing paragraph the
" Minister may make the order either in terms of the draft or subject
" to such modifications as he thinks fit:

" Provided that, except with the consent of all persons interested,
" the Minister shall not make the order subject to a modification
" including in the area designated as the site of the proposed new
" town any land not so designated in the draft order."

to the High Court to have the Order quashed, on the following grounds:-

" (1) That the said Order is not within the powers of the New
" Towns Act, 1946, or alternatively that the requirements of the said
" Act have not been complied with and the interests of the Applicants
" have been thereby substantially prejudiced in that—

" (A) before considering the objections of the Applicants the
" Minister stated that he would make the said Order, and was
" thereby biassed in any consideration of the said objections;
"and

" (B) the Minister did not before making the said Order cause
" a public local inquiry to be held with respect thereto; and

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" (2) that the New Towns Act, 1946, impliedly requires that the
" objections of the Applicants should be fairly and properly con-
" sidered by the Minister and that the Minister should give fair
" and proper effect to the result of such consideration in deciding
" whether the said Order should be made and that such implied
" requirements were not complied with."

There does not appear to be much dispute as to the facts, but a great
deal rests on the proper inference to be drawn from these facts, which
may be stated chronologically as follows :

On 21st January, 1946, a committee appointed in 1945 by the Respon-
dent, as Minister of Town and Country Planning, and the Secretary of
State for Scotland, known as the " Reith Committee ", made an interim
report, dated 21st January, 1946, and published as Command Paper 6759,
in which it is stated in paragraph 16, " (1) Stevenage is suggested in the
" Greater London Plan, 1944, as one of the new towns in the outer ring
" round London. We are informed that the development of this town is a
" matter of urgency, and that the agency must be chosen before legislation
" can be obtained. (2) It is possible that by a special arrangement with the
" Hertfordshire County Council, at the request of the Minister of Town
" and Country Planning, the necessary land may be acquired for the
" County Council under section 35 of the Town and Country Planning
" Act, 1932, the Exchequer providing the necessary finance. We recom-
" mend that there shall be an arrangement between the County Council
" and a government sponsored corporation established by Royal Charter,
" which will enable the latter to proceed in advance of legislation. (3) A
" draft charter for this corporation, drawn up at our request by the
'' Treasury Solicitor, is in Appendix 4 (Note: Charters for corporations
" established after legislation has been passed would derive from that
" legislation and be different in content)." The committee recommended
in the ninth place, " Stevenage. Arrangements should be made for setting
" up immediately a public corporation for the development of a new town
" at Stevenage to proceed with the necessary work in advance of
" legislation—paragraph 16."

The New Towns Bill was introduced by the Respondent in the House
of Commons on 17th April, 1946, and was ordered to be printed.

On or about 24th April, 1946, the Respondent sent letters to 179 owners
of land at Stevenage inquiring whether they were prepared to sell land
to the Respondent, with a view to the development of the area as a garden
city, as provided by section 35 of the Town and Country Planning Act,
1932. There is no evidence that any land was acquired by the Respondent
as the outcome of these letters, and we are entitled to assume that the
Minister was acting on the suggestion of the Reith Committee, and that
the proposal was superseded by the passage of the New Towns Act.

On 6th May, 1946, the Respondent attended and spoke at a public
meeting in Stevenage Town Hall, called to consider a proposal for desig-
nating an area of land in the neighbourhood of Stevenage as the site of
a new town. The Appellants base their case mainly on the statements
made in an advance Press notice issued by the Respondent prior to the
meeting, and statements made by the Respondent in the course of his
speech, as evidence that the Respondent had by that time completely
made up his mind that the designation of Stevenage as a new town would
be carried through, whatever was said at the meeting or subsequently.
Both the Press notice and the speech gave a somewhat detailed statement
of the development of the plans for relief of density of the population of
London by the formation of new towns, and the particular advantages
of the Stevenage area for such a purpose, but it is unnecessary to do more
than quote the passages founded on by the Appellants as demonstrating
the state of the Respondent's mind along with some of the immediate
context. All such passages in the Press notice are to be found in the
Respondent's speech, but the speech contains one short additional passage,
and the report of the speech also gives some of the interruptions of the
audience, and the reactions of the Respondent thereto, and records that
the Respondent, on rising to begin his speech, was greeted with cheers

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from the platform and some booing from the hall. It seems that the
meeting might fairly be described as a lively one. The relevant passages
are as follows:

1. After review of the Abercrombie Plan for Greater London, the
interim reports of the Reith Committee, the unanimous approval given
to build the first new town at Stevenage, and the consideration of the
matter by the Government and inter-departmental committees, the
Respondent said,

" I have now had the advantage of two interim reports—both
" unanimous—from this Committee " (the Reith Committee),
" and based upon these reports the Government has decided to
" introduce legislation to facilitate the creation of these new
" towns.

" The New Towns Bill, published twelve days ago, will receive
" its Second Reading on Wednesday, and I am here to-day—
"(Voice: You are leaving it a bit late.)

" In anticipation of the passage of the Bill—and I have no
" doubt that it will go through—certain preliminary steps have
" been taken regarding Stevenage by way of discussion with
" local authorities concerned—(Voice: There has been no dis-
" cussion with the Stevenage Local Authority)—and the prepara-
" tion of a plan, and the giving of notices for the acquisition
" of land under powers which I already have in pursuance of
" the Town and Country Planning Act, 1932."

2. In reference to the choice of the Stevenage area,

'' I think you will agree that if we are to carry out our policy
" of creating a number of new towns to relieve congestion in
" London we could hardly have chosen for the site of one of
" them a better place than Stevenage.

" Now I know that many objections have been raised by the
" inhabitants of Stevenage, perhaps not unnaturally."

3. Later the Respondent said, in two passages,

I want to carry out in Stevenage a daring exercise in town
' planning—(Jeers). It is no good your jeering: it is going to
" be done—(Applause and boos). (Cries of ' Dictator ')."

" After all this new town is to be built in order to provide for
" the happiness and welfare of some 60,000 men, women and
" children."

" For a number of years we in this country stood together and
" suffered together, whilst fighting for an ideal, for a democracy
" in which we believed. I am sure that this spirit is not dead
" in Stevenage, and if you are satisfied that this project is worth
" while, and for the benefit of large numbers of your fellow
" human beings, you will be prepared to play your part to make
" it a success.

' The project will go forward because it must go forward. It
" will do so more surely and more smoothly and more success-
" fully with your help and co-operation. Stevenage will in a
" short time become world famous—(Laughter). People from all
" over the world will come to Stevenage to see how we here in
" this country are building for the new way of life."

4. In answer to a question as to whether the rates would be increased
by the development, the Respondent said,

'No, in due course Stevenage will gain. Local authorities
" will be consulted all the way through. But we have a duty
" to perform, and I am not going to be deterred from that duty.

' While I will consult as far as possible all the local authorities,
" at the end, if people become fractious and unreasonable I shall

' have to carry out my duty—(Voice: Gestapo !)."

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1946. The statutory duty of carrying out the designation of new towns
thus became imposed on the Respondent as Minister of Town and Country
Planning.

Under paragraph 1 of the First Schedule to the Act, the Respondent
prepared, on 3rd August, 1946, a draft order for the designation of the
Stevenage area, and on or about 6th August, 1946, caused the Draft
Stevenage New Town (Designation) Order, 1946, to be published and
notices to be given as prescribed by paragraph 2 of the Schedule. As
already stated, objections were thereafter received, and on the instructions
of the Respondent, a public local inquiry was held by Mr. Morris on
7th and 8th October, 1946, and Mr. Morris made a report to the Respon-
dent on 25th October, 1946. It was conceded by the Appellants that there
was no evidence of any person having been deterred from lodging objec-
tions by any of the facts already stated, and there is no criticism of the
conduct of the inquiry by Mr. Morris except that which is involved in
the other contention of the Appellants as to the range of the inquiry, which
is claimed by them not to have been in compliance with the statutory
requirements. On the 8th November, 1946, the Respondent caused a
letter to be sent to the objectors, in which, after stating that he had
considered Mr. Morris's report, and that, after giving careful consideration
to the various submissions made to him on behalf of interested Local
Authorities and Statutory Undertakers and by private individuals affected
by the proposals, he had decided to make the Order, the Respondent, in
fourteen paragraphs, dealt in turn with the main objections raised. The
Appellants sought to maintain that, in paragraph 13, the Respondent
had not effectively dealt with the objections raised by the Metropolitan
Water Board, the Lee Conservancy Board and the Lee Conservancy
Catchment Board as to water supply and sewage disposal, which the
Appellants contended were vital to the practicability of the whole proposal,
but only stated that he had appointed a consultant to examine the possibili-
ties of a scheme which will apply to a much wider area than that of the
immediate vicinity of Stevenage. In my opinion this contention of the
Appellants was correctly disposed of by Lord Oaksey L.J., who pointed
out that none of these authorities had ever suggested that it was an entirely
impracticable scheme, and that it really raised a question of expense. The
Respondent said that these problems had been taken into account from
the beginning and had been the subject of discussions with the Ministry
of Health from an early stage and subsequently with the Metropolitan
Water Board and the Lee Conservancy Board. (The Appellants seek to
throw doubt on the statement as to discussion with these two Boards.)
The Respondent adds that he feels justified in going forward with the
establishment of a properly planned community and would maintain close
contact with the Ministry of Health and the Statutory Undertakers at
every stage of the development. From this it is clear that the Respondent,
after very long and full consideration of the matter, came to the conclusion
that these objections were in no degree fatal to the scheme, but were
matters to be examined and determined during the stage of development
of the new town, which comes after the making of the Order, when the
development corporation is established under section 2 of the Act. The
Appellants admit that, if the Respondent did so decide, his decision is not
open to challenge by them. It may further be observed that, during this
later stage, the Minister of Health, under section 9 of the Act, has the
power, on his own initiative, of constituting larger areas than the desig-
nated area for the purposes of public health. It appears to me that the
Respondent's letter of 8th November not only does not support the Appel-
lants' contention, but that it is evidence that the Minister had properly
considered the objections.

As already stated the Stevenage New Town (Designation) Order was
made by the Respondent in terms of paragraph 4 of the First Schedule
to the Act, and its validity is the subject of challenge in these proceedings.

Henn Collins J. upheld this first contention of the present Appellants
on the ground that the Respondent's functions in considering the report
of Mr. Morris's inquiry were quasi-judicial, that he did not consider the
objections with an open mind, and that " he did not consider or decide

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" the question Aye or No should the Order be confirmed with an open
" mind, but that he meant to confirm it whatever the force of the objections
" might be, trusting that some solution might be found." The learned Judge
based his view on the Respondent's speech of 6th May, 1946, and on
paragraph 13 of the Respondent's letter of 8th November. As regards
the former he says, "If I am to judge by what he said at the public
" meeting which was held very shortly before the Bill, then published,
" became an Act of Parliament, I could have no doubt but that any
" issue raised by objectors was forejudged. The Minister's language
" leaves no doubt about that. He was not only saying there must
" and shall be satellite towns, but he was saying that Stevenage was to
" be the first of them. But, when he made that speech, and gave his
" answers to questions which were asked, he had no administrative func-
" tions in relation to the Act in question, for the Act had not
" then been passed. But though that was his attitude two days
" before the Bill received its Second Reading, it is upon the objectors
" to prove that the Minister was in a like mind, or at least had
" not an open mind, from and after at latest the inception of the
" public inquiry, which was held in October." As regards the letter of
8th November, 1946, the learned Judge says, " In this case, however,
" as was only to be expected of him, the Minister has dealt, in writing,
" with the substance of the objections—with one exception, namely, that
" directed to the difficulties of water supply and sewage disposal. It is
" obvious that those difficulties must be met before the scheme can go
" through. The Minister acknowledges that they have not been met, and
" that he is taking advice as to how it can be done. Non constat that any
" way will be found. And yet, with that fundamental problem still out-
" standing, the Minister confirms his Order How can it be said that he
" weighed the objection with an open mind when he acknowledges that
" he did not and does not know the force of it? When, therefore, I ask
" myself whether the objectors have satisfied me that from and after
" the inception of the inquiry up to and including the moment at which
" the Minister decided to confirm his Order, he had not an open mind,
" my answer is that they have." It is clear that had the learned Judge
appreciated, as was pointed out in the Court of Appeal, that no witness
had suggested that the scheme could not go through, unless the suggested
difficulties of water supply and sewage disposal had been met, and had he
realised that he had put a wrong construction on paragraph 13 of the letter
of 8th November, 1946, he would not only have been left without any
evidence that from and after the inception of the inquiry up to and includ-
ing the confirmation of the Order the Respondent had not an open mind,
but he would have had the evidence of the letter of 8th November, 1946,
that the Respondent had so considered the report, and he should also have
taken account of the unchallenged affidavit of the Respondent on 21st
January, 1947, referred to by the Court of Appeal, that " before causing
" the said Order to be made, I personally carefully considered all the
" objections made by the objectors including the present applicants, to-
" gether with the submissions made and evidence given on their behalf as
" appearing in the said transcript. I also carefully considered the report
" of the said Arnold Morris." The learned Judge makes no reference to
this affidavit. In that aspect of the evidence it appears that the learned
Judge, in view of his reasoning, as above quoted, would not have quashed
the Order.

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" supposed to have, no bias inducing him to lean to the one side rather
'' than to the other. In ordinary cases it is a just ground of exception
" to a judge that he is not indifferent, and the fact that he is himself
" a party, or interested as a party, affords the strongest proof that he can-
" not be indifferent." To this may be added the statement by Lord
Hewart C. J. in Rex v. Sussex Justices. McCarthy, Ex parte, (1924) I
K.B. 256, at p. 258, " It is said, and, no doubt, truly, that when that
" gentleman (the deputy clerk) retired in the usual way with the justices,
" taking with him the notes of the evidence in case the justices might
" desire to consult him, the justices came to a conclusion without con-
" suiting him, and that he scrupulously abstained from referring to
" the case in any way. But while that is so, a long line of cases shows
" that it is not merely of some importance but is of fundamental import-
" ance that justice should not only be done, but should manifestly and
" undoubtedly be seen to be done. The question therefore is not whether
" in this case the deputy clerk made any observation or offered any
" criticism which he might not properly have made or offered; the question
" is whether he was so related to the case in its civil aspect as to be unfit
" to act as clerk to the justices in the criminal matter. The answer to
" that question depends not upon what actually was done but upon what
" might appear to be done." This was followed in Rex v. Essex Justices.
Perkins, Ex parte, (1927) 2 K.B. 475. But, in the present case, the
Respondent having no judicial duty, the only question is what the Respon-
dent actually did, that is, whether in fact he did genuinely consider the
report and the objections.

" I want to carry out in Stevenage a daring exercise in town planning
" (Jeers). It is no good your jeering: it is going to be done . . . After all,
" this new town is to be built in order to provide for the happiness and
" welfare of some 60,000 men, women and children . . . The project
" will go forward, because it must go forward- It will do so more
" surely and more smoothly and more successfully with your help and
" co-operation. Stevenage will in a short time become world famous.
" People from all over the world will come to Stevenage to see how we
" here in this country are building for the new way of life."

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(1) the speaker's view that the Bill would become law, that Stevenage
was a most suitable site and should be the first scheme in the operation,
and that the Stevenage project would go forward, and (2) the speaker's
reaction to the hostile interruptions of a section of the audience. In my
opinion, these passages are not inconsistent with an intention to carry
out any statutory duty imposed on him by Parliament, although he
intended to press for the enactment of the Bill, and thereafter to carry
out the duties thereby involved, including the consideration of objections
which were neither fractious nor unreasonable.

I am therefore of opinion that the first contention of the Appellants
fails, in that they have not established either that in the Respondent's
speech he had forejudged any genuine consideration of the objections, or
that he had not genuinely considered the objections at the later stage when
they were submitted to him.

"3. If any objection is duly made to the proposed order and is not
" withdrawn, the Minister shall, before making the order, cause a public
" local inquiry to be held with respect thereto, and shall consider the report
" of the person by whom the inquiry was held."

Lord Thankerton

My Lords,

Lord du Parcq

My Lords,
I concur.

Lord Normand

My Lords,
I also concur.

(58726) Wt. 8047—45 40 8/47 D.L. G. 336