1008 All England Law Reports [1979] 3 ANER Allen v Gulf Oil Refining Ltd COURT OF APPEAL, CIVIL DIVISION LORD DENNING MR AND CUMMING-BRUCE LJ 17th, 18th, 21st, 2and may, 27th JUNE 1979 Nuisance ~ Defence - Statutory authority — Action for damages for nuisance arising out of construction and operation of ail refinery — Statute authorising oil company to acquire land compulsorily for construction of oil refinery — Oil company authorised to construct certain works and to construct and use certain subsidiary works in connection with refinery — Whether oil company able to rely on defence of statutory authority in action for nuisance ~ Gulf Oil Refining Act 1965 (c xxiv), $8 5, 15, 16. By the Gulf Oil Refining Act 1965, an oil company (Gulf Oil’) were authorised to construct certain works in connection with an oil refinery they intended to establish at Milford Haven. Section 5 gave them power compulsorily to acquire land near Milford Haven ‘for the purposes of [works authorised by s 15 of the Act] or for the construction of an oil refinery’. Section 15 authorised the construction of certain jetties and a branch railway line outside the boundary of the land, Section 16(1) authorised Gulf Oil to ‘construct .... and use’ for the purposes of or in connection with the works authorised by s 15 certain subsidiary works, including, inter alia, railways, sidings etc. Section 16(3) provided for Gulf Oil to make reasonable compensation for any damage caused by the exercise of the power conferred by s 16(1). In 1967 Gulf Oil built a large oil refinery on the land referred to in the Act and which they had compulsorily acquired for the purpose, and constructed various jetties and railways in connection with it. The plaintiff, who lived in the near neighbourhood of the refinery, brought an action for damages or © compensation against Gulf Oil, alleging that the operation of the refinery was a nuisance or alternatively that Gulf Oil were guilty of negligence in the method of construction. and operation of the refinery. Gulf Oil resisted the claim by the plea of statutory authority. Ona preliminary issue the judge ordered that Gulf Oil could rely on the 1965 ‘Actas having authorised the construction and operation of the oil refinery. The plaintiff appealed. Held - The appeal would be allowed for the following reasons— (i) (Per Lord Denning MR) In relation to the branch line of railway outside the boundary of the compulsorily acquired land, Gulf Oil were liable under the common law for the escape of sparks or for any nuisance due to the use of locomotive engines on that line since s 15 of the 1965 Act merely authorised the construction of the line but did not contain any provision which expressly authorised the use on it of such engines. In relation to the subsidiary works inside the boundary however, Gulf Oil were not liable in nuisance under the common law since s 16(1) of the 1965 Act authorised not only the construction of those works but also their use with engines, pumps, machinery etc. However by virtue of s 16(3), they were expressly liable to make reasonable compensation for any damage caused by the exercise of those powers. By interpreting s 5 of the 1965 Act in the light of the interpretation of ss 15 and 16 it was apparent that, since Gulf Oil were authorised by s § to acquire lands ‘for the construction of a refinery’ and not for the use of a refinery, there was no statutory authority for them to use the refinery in such a way as to commit a nuisance or to let dangerous things escape so as to do damage, and therefore those living nearby retained their common law remedy (see p 1014 ¢ to fand htop 1015 dand p 1016g, post); Jones v Festiniog Railway Co (1868) LR 3 QB 733 applied; R v Pease [1824-34] All ER Rep 579, Vaughan v Taff Vale Railway Co [1843-60] All ER Rep 474, Hammersmith and City Railway Co v Brand [1861-73] All ER Rep 60 and London, Brighton and South Coast Railway Co v Truman [1881-5] All ER Rep considered. (ii) (Per Curming-Bruce LJ) Although in enacting the 1965 Act Parliament had >® CA Allen v Gulf Oil Refining Ltd 1009 granted Gulf Oil the power to acquire land on which to construct an unspecified refinery (which was not included in the works authorised by the Act to be constructed), there was nothing in the Act which led to the inference that Parliament intended in s 5(1) to grant them power to construct a particular specified refinery or to use it, and there was no existing precedent of a statute granting compulsory powers for acquisition of land for a purpose which had been held to have conferred statutory authority to construct and use the thing built on the land simply as an inference of legislative intention to be collected ‘from the grant of power compulsorily to acquire the land. Although Gulf Oil retained a o x the liberty to build on their land such refinery as they wished, subject only to the granting of planning permission, they created nuisance at their peril. If the plaintiff could establish that she had suffered damage through nuisance, and that there was a threat that the nuisance would continue, it would be for the trial judge to decide the remedy. So far as any of the nuisances alleged were proved to be caused by the railway, sidings or other subsidiary works which Gulf Oil were empowered to construct by 5 16(1), the plaintiff might have a right to compensation under s 16(3) but, as a necessary corollary, no right of action in nuisance for such damage (see p 1023 h to p 1024 c and f & post); dicta of Lord Chelmsford in Hammersmith and City Railway Cov Brand [1861-73] ‘All ER Rep at 65 and of Lord Watson in Metropolitan Asylum District Managers v Hill [1881-5] All ER Rep at 545 considered. Per Lord Denning MR. Where, under modern statutes, private undertakers seek statutory authority to construct and operate an installation which might cause damage to people living in the neighbourhood, it should not be assumed that Parliament intends that those people should be without redress for any such damage. Just as in principle property should not be taken compulsorily except on proper compensation being paid for it, soalso in principle property should not be damaged compulsorily except on proper compensation being made for the damage done whether the undertakers use due diligence or not. In the absence of provision to the contrary modern statutes should be so construed that persons living in the neighbourhood retain their rights at common law and that it is no defence for the undertakers to plead statutory authority so as to excuse them from any liability (see p 1016 a to d, post). Notes For the defence of statutory authority in actions for nuisance and negligence, see 30 Halsbury’s Laws (3rd Edn) 690-696, paras 1330-1337, and for cases on the subject, see 38 Digest (Repl) 13, 34-41, 49, 173-212. Cases referred to in judgments Baines v Baker (1752) Amb 158, 27 ER 105, sub nom Anon 3 Atk 750, LC, 36(1) Digest (Reissue) 479, 580. Emsley v North Eastern Railway Co [1896] 1 Ch 418, 65 LJ Ch 385, 74 LT 113, 60 JP 182, CA, 38 Digest (Repl) 304, 95. Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, HL. Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, [1861-73] All ER Rep 60, 38 LJQB 265, 21 LT 238, 34 JP 36, HL; rvsg (1867) LR 2 QB 223, Ex Ch, 38 Digest (Repl) 15, 59. Jones v Festiniog Railway Co (1868) LR 3 QB 733, 9 B & S 835, 37 LJQB 214, 18 LT 902, 32 JP 693, 38 Digest (Repl) 400, 613. Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, [1924] All ER Rep 259, 93 LJ Ch 436, 131 LT 710, HL; rvsg [1923] 1 Ch 431, CA; subsequent proceedings [1924] 2 Ch 475, CA, 28(2) Digest (Reissue) 1012, 396. London, Brighton and South Coast Railway Cov Truman (1885) 11 App Cas 45, [1881-5] All ER Rep 134, 55 LJ Ch 354, 54 LT 250, 50 JP 388, HL; rvsg (1885) 29 Ch D 89, CA, 38 Digest (Repl) 41, 212. Manchester Corpn v Farnworth [1930] AC 171, [1929] All ER Rep 90, 99 LJKB 83, 94 JP 62, 27 LGR 709, 142 LT 145, HL, 38 Digest (Repl) 38, 193.1010 All England Law Reports [1979] 3 AIER Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193, [1881-5] All ER Rep 536, 50 LJQB 353, 44 LT 653, 45 JP 664, HL, 36(1) Digest (Reissue) 520, 887. Pyx Granite Co Ltd v Ministry of Housing and Local Government [1959] 3 All ER 1,[1960] AC 260, [1959] 3 WLR 346, 123 JP 429, 58 LGR 1, 10 P & CR 319, HL, 45 Digest (Repl) 336, 37. R v Pease (1832) 4 B & Ad 30, [1824-34] All ER Rep 579, 1 Nev & MKB 690, 1 Nev & MMC 535, 2 LIMC 26, 110 ER 366, 38 Digest (Repl) 39, 205. Sturges v Bridgman (1879) 11 Ch D 852, 48 LJ Ch 785, 41 LT 219, 43 JP 716, CA, 36(1) Digest (Reissue) 407, 32. Vaughan v Taff Vale Railway Co (1860) 5 H & N 679, [1843-60] All ER Rep 474, 29 LJ Ex 247, 2 LT 394, 24 JP 453, 6 Jur NS 899, 157 ER 1351, Ex Ch, 38 Digest (Repl) 13, 54. Cases also cited Attorney-General v HRH Prince Ernest Augustus of Hanover [1957] 1 All ER 49, [1957] AC 436, HL. British Railways Board v Pickin [1974] 1 All ER 609, [1974] AC 765, HL. Canadian Pacific Railway Co v Parke [1899] AC 535, PC. Clowes v Staffordshire Potteries Waterworks Co (1872) 8 Ch App 125, LJ. Goldberg & Son Ltd v Liverpool Corpn (1900) 82 LT 362, CA. Interlocutory appeal By writ issued on 13th February 1975 in the Haverfordwest District Registry and amended pursuant to an order of the district registrar dated 22nd May 1975, the plaintiff, Elsie May Allen, the occupier of premises at 20 Alban Crescent in the village of Waterston commenced an action against the defendants, Gulf Oil Refining Ltd (Gulf Oil’, for the nuisance alleged to be caused by the operation of an oil refinery constructed by Gulf Oil in 1967 at Waterston, near Milford Haven in the County of Dyfed. By a statement of claim served on 19th February 1975 and amended pursuant to an order of the district registrar dated roth June 1976 the plaintiff alleged nuisance, the particulars of which were noxious odours, vibration, offensive noise levels, excessive flames from burning waste gases, causing consequent ill-health, and fear of an explosion. Further and in the alternative, the plaintiff alleged negligence in the construction and/or operation of the refinery and claimed that by reason of nuisance and negligence, she and her family had sustained personal injury, damage and expense. The plaintiff claimed an injunction that Gulf Oil forthwith desist from the acts of nuisance and negligence, and damages. By their defence served on roth April 1975 and re-served as amended on 1st October 1976 Gulf Oil denied nuisance, negligence, personal injury, loss or damage, and further or in the alternative pleaded that if any of the matters referred to in the statement of claim otherwise constituted a nuisance, the construction and operation of the refinery were and continued to be authorised by the Gulf Oil Refining Act 1965 and they relied on the defence of statutory authority. On the summons for directions the plaintiff sought an order for determination of a preliminary point of law before trial of the action on the question whether Gulf Oil could rely on the defence of statutory authority. On 29th November 1976 the district registrar granted the order. Gulf Oil appealed against the registrar's order and on 23rd May 1977, Kerr J in chambers dismissed Gulf Oil’s appeal, buton an undertaking being given by the plaintiffs counsel that if Gulf Oil were held to be entitled to rely on the defence of statutory authority the plaintiff would not proceed with the allegation of negligence, varied the registrar's order by ordering that the question ‘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?’ be tried as a preliminary issue. On ath May 1978 May J tried the preliminary issue and gave judgment for Gulf Oil. The plaintiff appealed. ‘The facts are set out in the judgment of Lord Denning MR. John Davies QC and Gordon Langley for the plaintiff. Charles Sparrow QC and Francis Ferris for Gulf Oil. ~° a ~ ~ CA Allen v Gulf Oil Refining Ltd (Lord Denning MR) 1011 Cur adv vult 27th June. The following judgments were read. LORD DENNING MR. Milford Haven is a fine harbour. Twenty years ago the big oil companies saw that it was a very suitable site for their oil refineries, It had deep water which big modern tankers could navigate. It had open land ashore where the refineries could be built. One company after another got statutory powers to build a refiner there. In 1957 Esso got a private Act of Parliament. In 1962 Regent Oil. In 1965 Gulf Oil. In 1971 Amoco. Each of these great oil companies have established refineries on the shores of Milford Haven. We are here concerned with the inhabitants of Waterston. That is a small village about half a mile inland. Gulf Oil have built a huge refinery stretching right from the shore to the very doors of the villagers of Waterston. ‘The Methodist chapel lies in the very access way to the refinery. Gulf Oil have built their operational plant so close to the village that it towers above the houses. ‘They have sited the tank farm some distance away, The villages say that ever since the reRnery was builtin 1967 they have suffered from the noxious odours emitted by it, such as suiphur dioxide, which makes them feel sick; they have had vibration and a continuous roaring with occasional high-pitched noises; there have been flames from burning waste gases; and they live in fear of explosions. Beyond all doubt their complaints are so genuine that at common law the householders would have a cause of action for nuisance. Fifty or sixty of them have brought actions for damages or compensation against Gulf Oil. One of them has been taken asa test action. In the statement of claim the plaintiff alleged that the operation of the refinery was a nuisance or alternatively that Gulf Oil were guilty of negligence in the method of construction and operation of the refinery. Gulf Oil resist the claim by the plea of statutory authority. This is how they put it in their defence: ‘... the Defendant will say that the construction and operation of the said refinery were and are authorised by the Gulf Oil Refining Act 1965 and the Defendant will rely upon the defence of statutory authorit On these pleadings there has been raised a preliminary point of law. It is this: ‘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?” That question, as it stands, seems to me to be useless, because it does nothing to resolve the issues in the action. Even if the Act did authorise the construction and operation of the refinery, the plaintiff could still complain that Gulf Oil were guilty of negligence, in that they did not do what was reasonable to prevent the damage: see the well-known statement by Lord Blackburn in Geddis v Proprietors of Bann Réservoir’. Some light is thrown on the question by an undertaking which was given to the judge. It was in these terms: ‘Anp pon Counsel for the plaintiff undertaking ... that, in the event of its being decided by way of preliminary issue that the defendant is not entitled to rely on a plea of statutory authority as a defence in this action, they will not proceed with the allegation of negligence...” In view of that undertaking, I take it that if the answer to the point of law is, No, the plaintiff will rely on the allegation of nuisance but not on the allegation of negligence. Ifthe answer to the point of law is Yes, the undertaking does not apply. ‘The plaintiff will still in theory be able to rely on the allegation of negligence. We were told, however, by 1 (1878) 3 App Cas 430 at 4561012 All England Law Reports [1979] 3 AIER counsel that the plaintiff would not then rely on the allegation of negligence because it would give rise to much difficulty and expense, especially as the plaintiff is legally aided. In the course of the discussion before us, the preliminary issue broadened into this debate: to what extent is statutory authority a defence to the claim in the action on the assumption that Gulf Oil were not negligent and did all that was reasonable to prevent damage to the plaintiff, but nevertheless in spite of their efforts their operations did cause damage to the plaintiff? The issue was put in graphic form by Cumming-Bruce L]. Suppose there was an explosion (as recently took place in Bantry Bay) without negligence, and people were killed and injured and houses destroyed. Would statutory authority be a defence to the claim? Counsel for Gulf Oil hesitated about the answer. But he realised that logically, if his contention were right, Gulf Oil would not be liable to pay a penny in compensation. The issue depends on the true interpretation of the statute under which Gulf Oil constructed the refinery. May J below held that Gulf Oil were entitled to rely on the 1965 Act as having authorised the construction and operation of the oil refinery; and on this account they were not liable in the absence of negligence. The plaintiff appeals to this court. The 19th century cases All the cases on statutory authority go back to the first days of railways. They start with R v Pease!, Edward Pease was a Quaker. In 1821 he promoted a private Act of Parliament, the Stockton and Darlington Railway Act?, so as to make a railway from the river Tees at Stockton to a colliery at Wilton. He intended only to use horses to draw the coal wagons along the railway. He appointed George Stephenson to be the engineer to the railway company. Now George wasa genius. He persuaded Edward Pease to let him try locomotives on the railway. So in 1824 the cautious old Quaker promoted another private Act? so as to make it lawful for the railway company to ‘employ and use’ locomotives to pull wagons along the railway. Note those words ‘employ and use’. George Stephenson built his steam engine. On 27th September 1825 the first train did the journey from Stockton. There was tremendous opposition to this new revolution. It was said that the engine would burn and shatter people to fragments. It would set their houses on fire and poison the milk. The railway ran alongside a public highway. These on foot were frightened. Horses shied. Carts overturned. So great were the complaints that Edward Pease was indicted fora public nuisance. It was tried at the York Assizes in 1832 before Parke J. The jury found a special verdict setting out the facts. In it they found that the locomotive engines were of the best known construction and were used with due care and diligence. ‘The law was argued before the Court of King’s Bench’, They held that Edward Pease was justified by the Act and was not guilty of a nuisance. The reason given was that— ‘the words of the clause in question clearly give to the company the unqualified authority to use the engines... The Legislature . .. must be presumed to have known that the railroad would be adjacent for a mile to the public highway, and consequently that travellers upon the highway would be in all probability incommoded by the passage of locomotive engines along the railroad.’ (My emphasis.) That decision was highly beneficial. It opened the way to the railway age. G M Trevelyan’ says that ‘railways were England's gift to the world’. (1832) 4 B & Ad 30,[1824~34] All ER Rep 579 1 & 2. Geo 4c lxi 4.Geo 4c xxx 4B & Ad 30 at 40-41, cf[1824~34] All ER Rep 579 at 581, per Parke J English Social History (3rd Edn, 1946), p 531 qd hCA Allen v Gulf Oil Refining Ltd (Lord Denning MR) 1013 Put in legal terms, the decision turned on the true construction of the second private ‘Act. When passing that Act, Parliament must be presumed to have known that the use of locomotive engines, even with all due care, would cause a nuisance and cause damage to innocent people. Nevertheless Parliament expressly authorised that use and that damage without providing for any compensation in respect of it. That decision was followed in 1860 in Vaughan v Taff Vale Railway Co!. Sparks from an engine set fire to a wood and destroyed eight acres of it. This was exceedingly hard on b the landowner, Here was a new invention shooting out fire and destroying his property, He sued for damages but Blackburn J said: ‘, . Rex v. Pease? has settled that when the legislature has sanctioned the use of a locomotive engine, there is no liability for injury caused by using it, so long as every precaution is taken consistent with its use.’ (My emphasis.) But eight years later there was a ‘sparks’ case in which a railway company were held liable in damages. It was in Jones v Festiniog Railway Cot, Sparks from an engine set fire toa haystack and it was burnt down. The railway company proved that they had taken all reasonable precautions to prevent the emission of sparks. But they were held liable. It was because the private Act? did not expressly authorise the use of locomotive engines. Blackburn Jé distinguished Vaughan v Taff Vale Railway Co! by saying that therein ‘the legislature has expressly authorized the use of locomotive engines’, but that ‘in the present Act, there is nothing amounting to express authority’ (my emphasis). That case was decided on 26th June 1868. A week later six judges were summoned to the House of Lords to give their opinion on another railway case, Hammersmith and City Railway Co v Brand’. It was not a ‘sparks’ case but a ‘vibration’ case. The decisions in R v Pease? and Vaughan v Taff Vale Railway Co! were challenged, but were upheld on the ground that in those cases the use of the locomotives was expressly authorised by the statute, Section 86 of the Railway Clauses Consolidation Act 1845 gave the railway companies express authority to employ and use locomotive engines and contained no provision for compensation for damage occasioned by the use. In view of that express f authority Lord Chelmsford said®: it must be taken that power is given to cause that vibration without liability toan action. The right given to use the locomotive would otherwise be nugatory, as each timea 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 g of the railway.’ (My emphasis.) Blackburn J? (whose opinion was approved by the House) confirmed the correctness of Jones v Festiniog Railway Cot saying that in that case the general words in the Act ‘did not contain any express authority to use locomotive power’ and that this omission ‘left the fy company at liberty, no doubt, to use locomotives, but on the common law terms, that they must keep in the fire at their own peril’ (my emphasis). 1 (1860) 5 H & N 679, [1843-60] All ER Rep 474 2 5H&N 679 at 688, cf[1843-60} All ER Rep 474 at 477 3 (1832) 4 B& Ad 30,[1824-34] All ER Rep 579 4 (1868) LR 3 QB 733 5 2Wm4cxlviii 6 LR 3.QB733 at 737 7 8 9 (1869) LR 4 HL 171, [1861-73] All ER Rep 60 LR 4 HL 171 at 202, [1861-73] All ER Rep 60 at 65, LR 4 HL 171 at 1991014 All England Law Reports [1979] 3 AER ‘The principle thus established was applied in London, Brighton and South Coast Railway CovTruman'. The London and Brighton Railway Co had a yard at Croydon which they turned to use for cattle pens. A neighbouring owner complained of noise and nuisance. But as the use of the yard was ‘expressly authorised’ by the statute for the keeping of cattle, the neighbour lost his case. So the law was settled in regard to railways. If the private Act expressly authorised the use of locomotives, or use for cattle pens, or any other specific use, without providing compensation for damage, and all due diligence was used, the railway company were not liable. The reason was because if an action for nuisance had been permitted it would mean that any adjoining owner could, by legal action, bring the railway to a standstill; and that would have been intolerable for the public at large. But if the private Act did not expressly authorise the use of locomotives or other specific purpose the railway company were liable for any damage done by the use of them. Application to this statute ( The outside branch line. Those cases are very much in point here. The Gulf Oil Refining Act 1965? empowered Gulf Oil to acquire a big area of land compulsorily on which to build a refinery, and also to make subsidiary works such as lines of railway within that area up to their boundary. But outwards from their land the Act also authorised the construction of a branch line of railway 24 miles long so as to connect up with the main line. But the Act did not contain any provision which expressly authorised the use of that branch line by locomotive engines. Indeed in s 3(1)(b) it specifically excluded s 86 of the Railways Clauses Consolidation Act 1845 which was the basis of Hammersmith and City Railway Co v Brand>, So in regard to this branch line of 24 miles of railway Gulf Oil were liable for any escape of sparks or any nuisance due to the use of locomotive engines. It is governed by Jones v Festiniog Railway Cot. (i) The inside subsidiary lines. Inside their land, Gulf Oil were authorised to construct subsidiary works such as lines of railway so as to connect up with that branch line. Now in regard to these subsidiary works the Act expressly authorised not only their construction, butalso their use with engines, pumps, machinery and so forth (sees 16(1)(a)). In regard to these subsidiary works, the statute expressly provided for compensation. Section 16(3) says: “In the exercise of the powers conferred by this section 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.” (ii) Conclusion, So we have this illuminating comparison: in s 15 (which authorised the construction of main works) there is no provision for compensation for damage done to people in the neighbourhood, but in s 16 which allowed the construction and use of subsidiary works, there is a provision for compensation. This shows that the draftsman had before him the principle of the railway cases of the 19th century. Parliament gave express statutory authority for the construction of the works specified in s 15 but did not give any statutory authority for the use of them, or at any rate no statutory authority for the use of them so as to be a nuisance. As a result, those living in the neighbourhood retained, therefore, the common law right of action for nuisance or the escape of dangerous things. But in s 16 Parliament gave express statutory authority not only for the construction of the subsidiary works but also for the use of them. That statutory authority, if it stopped there, would have exempted Gulf Oil from liability so long as 1 (1885) 11 App Cas 45 at 54,[1881-5] All ER Rep 134 at 138, per Lord Selborne 2 1965 c xxiv 3 (1869) LR 4 HL 171, [1861-73] All ER Rep 60 4 (1868) LR 3 QB 733~ CA Allen v Gulf Oil Refining Ltd (Lord Denning MR) 1015 they exercised due diligence, as in R ¥ Pease' and Vaughan v Taff Vale Railway Co? ‘That would have been very hard on those living in the neighbourhood. So Parliament in 5 16(3) inserted a provision for compensation for any damage done. That is the explanation of s 16(3) as compared with s 15. It was necessary to provide for compensation in s 16(3); but it was not necessary in s 15, because the common law was available in case there was a nuisance. Application to the refinery This interpretation of ss 15 and 16 throws much light on the rest of the statute, Ins 5 there are words which authorise Gulf Oil to acquire lands ‘for the construction of a refinery in the parish of Llanstadwell. But there are no words authorising them to operate or use the refinery so as to be a nuisance. Section 5 says, significantly, ‘for the construction of a refinery’, not for the use of it. It follows that there is no statutory authority for Gulf Oil to use the refinery in such a way as to commit a nuisance or to let dangerous things escape so as to do damage. Those living nearby are left to their common law remedies. The reason why Gulf Oil did not need statutory authority to use or operate the refinery, and did not get it, was given by Lindley LJ in Emsley v North Eastern Railway C08: ‘A statutory power is, lapprehend, a power conferred by statute to do something which could not be lawfully done without it. A statute is not wanted to enable even a company to build on land which is its own if the company has capital properly applicable to the purpose.’ So a statute is not wanted to enable the oil company to operate an oil refinery on land which it owns. If it does operate it, it does so by reason of its common law right to do what it likes with its own and, so long as it does not commit a nuisance. Parallel statutes It is interesting to look at parallel statutes dealing with oil installations. In the Pipe- lines Act 1962 there are provisions authorising the construction of pipe-lines (see ss 8, 11, 12) together with an express provision in s 69 that: ‘nothing in this Act or ina compulsory rights order shall exonerate a person from any action or other proceedings for nuisance.’ In the Petroleum and Submarine Pipe-lines Act 1975 there are provisions authorising the construction of a refinery (see s 34) together with an express provision in s 48(3) that *. .. nothing in this Act... . derogates from any right of action or other remedy (whether civil or criminal) in proceedings instituted otherwise than under this Act’. ‘Those provisions are clearly inserted ex abundanti cautela. They make it clear that when Parliament authorises the construction of an oil installation (saying nothing about the use or operation of it) Parliament does not thereby intend that those living in the neighbourhood should be damaged by it or suffer any nuisance from it; or, at any rate, if they are, they have their common law rights of action in respect of it. Planning The 1965 Act did not exempt Gulf Oil from the necessity of getting planning permission: see s 55. Gulf Oil were granted permission on 3rd February 1965 and made the arrangements required by the Pembrokeshire County Council. But that cannot exempt them from liability for nuisance or the escape of dangerous things. 1 (1832) 4 B & Ad 30, [1824-34] All ER Rep 579 2 (1860) 5 H & N 679, [1843-60] All ER Rep 474 3 [1896] 1 Ch 418 at 4281016 All England Law Reports [1979] 3 ANER General principles Thave considered this case on the construction of the statute, according the principles g laid down in the railway cases of the roth century. But I venture to suggest that modern statutes should be construed on a new principle. Wherever private undertakers seek statutory authority to construct and operate an installation which may cause damage to people living in the neighbourhood, it should not be assumed that Parliament intended that damage should be done to innocent people without redress. Just as in principle property should not be taken compulsorily except on proper compensation being paid 5 forit, so also in principle property should not be damaged compulsorily except on proper compensation being made for the damage done. No matter whether the undertakers use due diligence or not, they ought not to be allowed, for their own profit, to damage innocent people or property without paying compensation. They ought to provide for it as part of the legitimate expenses of their operation, either as initial capital cost or out of the subsequent revenue. Vaughan v Taff Vale Railway Co! exposes the injustice of the ¢ Victorian rule. A landowner had a wood of eight acres before the railway came. The railway company got a private bill and built the railway. Sparks from an engine burnt down the wood. He was denied any compensation at all. To avoid such injustice, I would suggest that, in the absence of any provision in the statute for compensation, the proper construction of a modern statute should be that any person living in the neighbourhood retains his action at common law; and that it is no defence for the promoters to plead the statute. Statutory authority may enable the promoters to make the installation and operate it but it does not excuse them from paying compensation for injury done to those living in the neighbourhood. realise that there is a difficulty about an injunction. No court would wish to grant an injunction to stop a great enterprise and render it useless. But that difficulty is easily overcome. By means of Lord Cairns's Act? the court can award damages to cover past or @ future injury in lieu of an injunction: see Leeds Industrial Co-operative Society Ltd v Slack}. So in this case 1 would hold that if there should be an explosion at this refinery the company are bound to compensate those who are killed or injured or whose property is damaged; and it is no answer for the company to say, ‘We are sorry. We were very careful. We used all the latest safety precautions. But yet it happened’. Justice demands that, despite those protestations, compensation should be paid by the company to those f who suffered by the operations. This is not a case of an explosion. But the principle is the same. It is damage done to the occupiers of houses by noxious odours, vibration and noise. Compensation should be paid to the owners and present occupiers of the houses on the lines of the compensation for ‘injurious affection’ in lieu of an injunction. But this should not cover damage such as would be caused by an explosion. That should be the subject of separate compensation. g I would therefore allow the appeal and answer the question, ‘No. CUMMING-BRUCE LJ. The pleadings By her statement of claim the plaintiff alleges that in or about 1967 Gulf Oil » constructed an oil refinery at Waterston, near Milford Haven, and have since occupied and operated that refinery. She alleges that the operation of the refinery has caused nuisance to her in the occupation of her premises at 20 Alban Crescent, Waterston. The nuisances complained of are noxious odours, vibration, substantial levels of noise which are offensive, and offensive flames from burning waste gases. She gave further and better particulars of those complaints: 1 (1860) 5 H & N 679, [1843~60) All ER Rep 474 2 Chancery Amendment Act 1858 3 [1924] AC 851, [1924] All ER Rep 259~ CA Allen v Gulf Oil Refining Ltd (Cumming-Bruce LJ) 1017 ‘(@)i. Noxious odours began in or about the year 1967. The Plaintiff is unable to specify precisely each and every occasion on which such odours emanated from such refinery, but the Plaintifl’s case is that on frequent occasion after the commencement of operations at the said refinery such odours emanated and continued to emanate. ii, The Plaintiff cannot give these particulars in full detail. The Defendants have the best knowledge of gases and similar products emanating from their refinery. The Plaintiff's case is that he/she (and members of the family) felt sick in consequence of inhaling noxious odours, such as: sulphur dioxide; sulphides; mercaptans; light hydro-carbons and other oil based compounds .. . (©) i. The vibrations began in or about the year 1967, and have continued thereafter. ii. The vibrations constitute a nuisance in that they interfere with the reasonable enjoyment by the Plaintiff of her premises and further interfere with the Plaintiff's reasonable enjoyment of her daily life. iii, The Plaintiff makes no complaint of structural damage in respect of vibrations. (0) i. Offensive noise levels began in or about the year 1967 and have continued subsequently. ii, Levels in excess of the criteria of the Wilson Report!; in particular, ing background noise level 36 dBA have been measured... iv. The Plaintiff and other residents in the locality. v. The best description which the Plaintiff can give is that it is a continuous roaring with occasional high-pitched noises caused by steam escaping; workshop and train-shunting noises.” She further and in the alternative alleged negligence. She alleged that by reason of the nuisance and negligence she and her family sustained personal injury, damage and expense. She complained that her health was affected, and that she and her family live in fear of explosion at the refinery. The way in which her own health and that of her grown-up grandson were affected was by nausea, headaches, breathlessness and coughs; her fear of explosion was due to her knowledge of the occurrence of several medium- sized explosions and numerous minor explosions at the refinery, and to her belief that explosions have occurred at other refineries and chemical plants carrying out processes similar to Gulf Oil's processes. The plaintiff claimed an injunction that Gulf Oil forthwith desist from the acts of nuisance or negligence, and damages. The injunction sought is particularised in the further and better particulars. It is to be observed that the nuisances alleged do not in terms include the fact or the threat of explosions causing injury to the plaintiff or damage to the land she occupies. Though, if the facts justified it, such an allegation might be made by amendment, the preliminary point falls for answer on the issues now raised by the pleadings, and in 1881 in Metropolitan Asylum District Managers v Hill? Lord Blackburn affirmed, as undoubtedly the law, Lord Hardwicke LC’s decision in Baines v Baker? that loss arising from the fears of mankind though in themselves reasonable would not create a nuisance at law. I only advert to this matter of detail because for the reasons I give below I find some difficulty in appreciating the scope of the question which has been ordered to be determined as a preliminary point. Gulf Oil by their amended defence admitted construction of the refinery in 1967, and ‘occupation and operation thereof ever since. They denied nuisance, negligence, personal injury, loss and damage. By para 3 they pleaded: ‘...if... any of the matters referred to in the Statement of Claim would otherwise constitute a nuisance the Defendant will say that the construction and 1 Noise: Final Report of the Committee on the Problem of Noise (chairman: Sir Alan Wilson rs) (1963) Cmnd 2056 (1881) 6 App Cas 193 at 206, [1881~5] All ER Rep 536 at 542 (1752) Amb 158, 27 ER 1051018 All England Law Reports [1979] 3 AER operation of the said refinery were and are authorised by the Gulf Oil Refining Act 1965 and the Defendant will rely upon the defence of statutory authority.’ On the summons for directions the plaintiff sought an order for determination of a preliminary point of law before any evidence was called in the action. The registrar made such an order and defined the question as follows: ‘Can the Defendants, on the true construction of the Gulf Oil Refining Act 1965, rely on the Defence of Statutory Authority to excuse them from liability for nuisance, if any, resulting from the construction and operation of the Refinery?” Gulf Oil appealed against the registrar's order that the point of law should be determined as a preliminary point. Kerr J affirmed the order for determination of a preliminary question of law, but having received the undertaking recited by Lord Denning MR, ordered that the point of law to be decided is: > c ‘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?” Doubtless the learned judge revised the question into that form because what Parliament has directed cannot be complained of by the subject as a wrong, whatever the consequence, so that there was an inherent contradiction in the form of the question originally defined. But there is a practical difficulty in answering the question which arises from the character of the nuisances alleged in the statement of claim. The plaintiff disclaims any allegation of structural damage in respect of vibration, so that no physical damage to land or anything growing on it is alleged. In respect of this kind of nuisance, the character of the neighbourhood and the surrounding circumstances are not matters to be taken into consideration. But where the nuisance alleged is ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, anything that discomposes or injuriously affects the senses or the nerves’, there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance, and in that connection the character of the neighbourhood must be taken into account. As Thesiger LJ put it in Sturges v Bridgman': ... whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding . .. that the trade or manufacture so carried on in that locality is not a private or actionable wrong,” So in the instant case, if as a matter of interpretation of the Act it is clear that the intention of Parliament was to change the immediate environment of the village of Waterston by the construction on the specified site immediately beside the village of a great oil refinery with jetties appropriate to the berthing of large tankers bringing in vast quantities of crude oil, and a railway to carry the products of the refinery away overland, it would follow that Parliament has authorised a dramatic change in the neighbourhood of the village. Thereafter a complaint of nuisance by interference with the enjoyment of life in the village would on any view have to show such a degree of interference with enjoyment as exceeded such levels of noise and impurity of air as are inevitable in a neighbourhood in which oil refinery business is to be regarded as the norm. This perhaps difficult question of fact is not the same as the question whether the refinery has 1 (1879) 1 Ch D 852 at 865 > xo Q ~ ~ CA Allen v Gulf Oil Refining Ltd (Cumming-Bruce LJ) 1019 been constructed and operated with due regard to the application of such mechanical and chemical devices as will minimise interference with the lives of the inhabitants of the village, ie the question of negligence in the special sense in which breach of the duty of care is described in this context. So if itis right to hold as a matter of construction of the ‘Act that it was not the intention of Parliament to grant Gulf Oil a licence to invade the common law rights of the inhabitants by subjecting them to any degree of interference with their comfort and convenience by noise, vibration or air pollution, there will still remain the question whether the complaints of the plaintiff are such as to constitute a nuisance having regard to the changed character of the environment which Parliament has authorised. The Act T turn to the question of construction, which, as May J appreciated, could not be answered without a careful examination of the cases in which the words of various statutes have been examined in order to ascertain what exactly Parliament did authorise, and in which guidance is given on the approach to the problem. In the Gulf Oil Refining Act 1965 statutory authority was sought by the promoters and granted by Parliament for the exercise of the powers set out in Parts II and IIf of the Act. As a drafting convenience the term ‘the authorised works’ were defined as ‘the works authorised by Section 15 (Power to construct works). Part II is on its face concerned only with the compulsory acquisition of the lands delineated on the deposited plans and described in the deposited book of reference. Section 5(1) provides: “Subject to the provisions of this Act, the Company may enter upon, take and use such of the lands... . as it may require for the purposes of the authorised works or for the construction of a refinery in the parish of Llanstadwell . .. or for purposes ancillary thereto or connected therewith.” Plan 3 shows by a broken line the boundaries of the lands to be acquired. The jetties (works 1, 2 and 3) are to be constructed on the navigable waters of Milford Haven. A single track railway is to be constructed along the line shown and lands acquired therefor within the limits of deviation marked on the plan. Plan 4 shows in larger scale the lands to be acquired for the construction of the refinery and for the jetties. Plan 5 shows dimensions and section of the jetties. Plans 6 and 7 show dimensions and levels of the ay (work 4). The plans show no particulars of the refinery for which the lands within the boundary were compulsorily acquired. 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.’ In this subsection the draftsman has followed the same technique as in s 5(1). In that subsection lands may be taken and used as the company may require for the purposes ofthe authorised works or for the construction of a refinery or for purposes ancillary thereto or connected therewith. So in s7(1) easements may be acquired compulsorily as the company may require for the purpose of constructing or using the works authorised by the Act, or for the purpose of doing any other thing necessary in connection with the works or for the construction of the refinery. For some reason no power is expressly granted to acquire easements required for the use or maintenance of the refinery, unless, as is a possible construction of the words, ‘the works authorised by this Act’ are not limited to the ‘authorised works’ as defined in s 4. But if that was the intention, it isa little difficult to see why in the last line of the subsection the draftsman uses language suggesting that ‘the works’ are something different from ‘the construction of a refinery’1020 All England Law Reports [1979] 3 AER When one turns of Part Ill, s 15(1) grants the powers to construct works 1, 2, 3 and 4. The first three works are constructions over the foreshore and sea bed, and are defined @ in s 4(1) as ‘the pier’. The ‘pier undertaking’ is defined ‘as the undertaking of the Company in connection with the pier as from time to time authorised’. Section 15(2) provides: “The Company may . . . hold and use as part of the pier undertaking so much of the foreshore and bed of the sea as is situate within the limits of deviation . .. and is required for or in connection with the said works.” b By s 16 there is the usual power to construct and use subsidiary works as described, including railways, tramways, junctions, sidings, turntables etc as may be necessary or convenient for or in connection with or subsidiary to the authorised works. By s 16(3) it is provided: ‘In the exercise of the powers conferred by this section 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.’ This is the only provision expressly imposing an obligation for compensation for damage and granting a right to any person to compensation for damage in terms which f suggest that the right to compensation is wider in its scope than compensation for injurious affection to occupiers who qualify for that kind of compensation. The section is in the conventional form of sections providing for subsidiary works and interference with statutory undertakers or public utilities; and although I appreciate the force of the reasoning of Lord Denning MR on the contrast between ss 15 and 16, 1am not confident that the provisions of s 16 throw great light on the intention of Parliament in Part I of @ the Act. There follow in Part Ill provisions designed to enable Gulf Oil from time to time to deepen, dredge, scour and improve the bed and foreshore of the sea, provisions to prevent danger to navigation, and powers to sell or lease the pier undertaking on such terms and conditions as may be approved by the Minister. In Part IV Gulf Oil are granted jurisdiction as a pier authority, given power to make byelaws for the pier, and f a bundle of sections provide protection for various public bodies and undertakers including compensation for damage or loss sustained by such undertakers. Section 55 is important. It preserves the powers exercisable under the Town and Country Planning Act 1962 and any restrictions or powers thereby imposed or conferred inrelation to land shall apply and may be exercised in relation toany land notwithstanding that the development thereof is or may be authorised or regulated by the Act. This in g effect preserves the power of the planning authority (and the Minister) in respect of the proposed change of use of the land from existing agricultural use to industrial use. It affords an additional safeguard to the neighbourhood and its inhabitants to be exercised by the planning authority. But in connection with this case the section may be regarded as neutral, because the planning authority has no jurisdiction to authorise nuisance save (if at all) in so far as it has statutory power to permit the change of the character of a neighbourhood in relation to the comfort and convenience of the inhabitants. At the date of the enactment of the Gulf Oil Refining Act 1965 in fact, outline planning consent had been given. But I agree with May J that as the parliamentary history of the Act is outside the purview of this court it is wrong to draw any inference from that fact. Contention of the parties i The rival contentions of the parties on the construction of the 1965 Act may be concisely summarised. Counsel for the plaintiff submitted that there isa clear distinction in the Act between the effect of the operative words in Part I and the effect of the operative words in Part Ill. Part II is concerned only with the grant of power to acquire lands and easements from the owners and occupiers stated in the book of reference.° ~ a CA Allen v Gulf Oil Refining Ltd (Cumming-Bruce LJ) 1021 There is in Part Il no express authority granted to do anything on the land once compulsorily acquired, though the only use of the land permitted to the acquiring company is to use the lands for the purposes of the authorised works (defined as the pier and the railway) or for the construction of a refinery. Gulf Oil needed statutory authority to build the pier as it was an obstruction to the Milford Haven harbour, which is a harbour at common law regulated by the Harbours, Docks, and Piers Clauses Act 1847; and the Crown had its rights over the foreshore. And they needed statutory authority to run the railway, which was work 4, if only to protect themselves from nuisance, But in respect of the refinery, all that the promoters sought from Parliament was acquisition of the land on which to construct it. They sought no express statutory authority in respect of its construction or its use, and though the preamble recited that the plans showing the lands which may be taken or used compulsorily under the powers of this Act for the purposes thereof, counsel submitted that the preamble could not add to the powers granted by the operative words of the Act, and could only aid construction where there is a real doubt as to the intention to be collected from the operative words. The promoters sought no authority from Parliament in respect of the refinery save acquisition ofthe land for itsconstruction. That explains the absence of any particulars or description of the refinery in the deposited plans. So as a matter of construction, authority was neither sought nor granted as to the kind of refinery to be constructed or as to the conditions or consequences of its operation. ‘That explained the conspicuous absence of any provision for compensation for the inhabitants of the village immediately alongside the refinery whose common law rights would be invaded if the operation of the refinery constituted a nuisance to their use or enjoyment of their land. Counsel for Gulf Oil submitted that this was a misunderstanding of the Act as drafted. By s 5 Parliament authorised the exercise of compulsory powers in favour of Gulf Oil for the construction of an oil refinery on the specified lands. Having granted Gulf Oil power to acquire the land for the single object of the construction of an oil refinery thereon, it was clearly the intention of Parliament that its authority was granted for the construction and the operation of that refinery. No particulars of the refinery to be constructed were required to be given to Parliament in the deposited plans, but the fact that Parliament granted the power to acquire the lands compulsorily led inescapably to the inference that having decided that Gulf Oil had proved a public need for another oil refinery Parliament authorised its construction and operation without requiring any safeguard other than such conditions as the planning authority had the power to impose in respect of the development of land. Counsel for Gulf Oil threw out the challenge that there is no case in the books where it has been held that Parliament authorised the construction of a specific thing in a specific place but also held that an action would lie for the inevitable consequence of the operation of the works authorised to be constructed. The legislative intention to be collected from s 5 was that Parliament was satisfied that it was in the public interest to authorise such oil refinery as Gulf Oil intended to construct subject only to the consent of the planning authority. It would be extraordinary to impute to Parliament an authority to the promoters to construct the works without a collateral authority to use them. if there is any doubt about the intention to authorise the operation of the refinery, it is removed by the recitals of the preamble. The legislature accepted (i) that in order to meet the increasing public demand for the company's products it was 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, (i) that Gulf Oil intended to establish a refinery in the parish of Llanstadwell, (ii) that it was expedient in the public interest that Gulf Oil should be empowered to construct the works authorised by the Act, and (iv) that it was expedient that Gulf Oil be empowered to acquire lands as in the Act provided. Counsel for Gulf Oil submitted that the relevant question of construction was: what did Parliament intend to take place on this site? and that this question is distinguishable from the question: what are the legal consequences of that which Parliament has intended to occur?1022 All England Law Reports [1979] 3 AIIER ‘The defence of statutory authority to an action for nuisance developed in the railway age. The line of cases beginning with R v Pease!, followed by Vaughan v Taff Vale Railway Co2, Jones v Festiniog Railway Co’, Hammersmith and City Railway Co v Brand* and London, Brighton and South Coast Railway Co v Truman’, establish that where the use of a railway is expressly authorised by statute no action for nuisance will lie. The law is declared by Blackburn J6 in Hammersmith and City Railway Co v Brand, and by Lord Chelmsford? in the passage quoted by May J: we do not expect to find words in an Act of Parliament expressly authorizing an individual or a company to commit nuisance or do damage toa neighbour. The 86th section gives power to the company to use and employ locomotive engines, and if such locomotives cannot possibly be used without occasioning vibration and consequent injury to neighbouring houses . . . 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 . ..” ‘Throughout the railway cases there is the common foundation of fact that locomotive power could not be used on a railway without emission of sparks and vibration so that the authority to use the engines must carry with it their necessary consequences. This principle has since been consistently applied outside the railway context. Ineed qf not in this judgment do more than cite the most relevant authorities as they have been reviewed by May J: Geddis v Proprietors of Bann Reservoir®, Metropolitan Asylums District Managers v Hill? and Manchester Corpn v Farnworth!©, In all those cases on the facts it was inevitable that nuisance would be a necessary consequence of the thing constructed and operated. On the other hand, it has not been stated in any case as the law that the defence will only apply when it is shown that the legislature must have known at the time that @ the statute was passed that the consequence of the authorised act must be to injure others. So I accept the submission of counsel for Gulf Oil that the relevant question of construction in this case is simply, did the Act authorise the use of this refinery on this site? Answering that question in the affirmative, he relies strongly on a statement of the law by Lord Watson in Metropolitan Asylum District Managers v Hill"! when he said: “The judgment of this House in The Hammersmith Railway Company v. Brand determines that where Parliament has given express powers to construct certain buildings or works according to plans and specifications, upon a particular site, and for a specific purpose, the use of these works or buildings, in the manner contemplated and sanctioned by the Act, cannot, except in so far as negligent, be restrained by injunction, although such use may constitute a nuisance at common law; and that no compensation is due in respect of injury to private rights, unless the ‘Act provides for such compensation being made. Accordingly the respondents did not dispute that if the Appellants or the Local Government Board had been, by the Metropolitan Poor Act, 1867, expressly empowered to build the identical hospital which they have erected at Hampstead, upon the very site which it now occupies, and that with a view to its being used for the treatment of patients suffering from f (1832) 4 B & Ad 30, [1824-34] All ER Rep 579 (1860) 5 H & N 679, [1843-60] All ER Rep 474 (1868) LR 3 QB 733 (1869) LR 4 HL 171, [1861-73] All ER Rep 60 (1885) 11 App Cas 45, [1881-5] All ER Rep 134 . LR 4 HL 171 at 196 J LR 4 HL 171 at 202, [1861-73] All ER Rep 60 at 65 (1878) 3 App Cas 430 9 (1881) 6 App Cas 193, [1881~5] All ER Rep 536 to [1930] AC 171, [1929] All ER Rep 90 11 6 App Cas 193 at 211-212, [1881-5] All ER Rep 536 at 545CA Allen v Gulf Oil Refining Ltd (Cumming-Bruce LJ) 1023 small-pox, the respondents would not be entitled to the judgment which they have a __ obtained. ‘The Appellants do not assert that express power or authority to that effect has been given by the Act either to themselves or to the Board; but they contend that, having regard to the nature of the public duties laid upon. them, and the necessities of the case, it must, on a fair construction of the Act, be held that the Legislature did intend them to exercise, and authorize them to exercise, such power and authority under the direction and control of the Poor Law Board. I see no b __teason to doubt that, wherever it can be shewn to be matter of plain and necessary implication from the language of a statute, that the Legislature did intend to confer the specific powers above referred to, the result in law will be precisely the same as if these powers had been given in express terms. And I am disposed to hold that if the Legislature, without specifying either plan or site, were to prescribe by statute that a public body shall, within certain defined limits, provide hospital © accommodation for a class or classes of persons labouring under infectious disease, no injunction could issue against the use of an hospital established in pursuance of the Act, provided that it were either apparent or proved to the satisfaction of the Court that the directions of the Act could not be complied with at all, without creating a nuisance. In that case, the necessary result of that which they have directed to be done must presumably have been in the view of the Legislature at the d time when the Act was passed.’ It is to be observed that in his summary of the decision in the Hammersmith Railway case! Lord Watson carefully and accurately refers to the grant of express powers to construct certain buildings or works according to plans and specifications on a particular site, and for a specific purpose; and further I observe that in that case the railway company had statutory authority not only to make a railway but also, by virtue of the incorporation of s 86 of the Railway Clauses Consolidation Act 1845, ‘to use and employ locomotive engines and other moving power’. I cannot discover from the report of Manchester Corpn v Farnworth? that Lord Dunedin was conscious of declaring the law in any different sense to the declaration of Lord Watson, although his more concise formulation omits reference to the important qualification made by Lord Watson, ‘according to plans and specifications’. And in Metropolitan Asylums District Managers ¥ Hill? the case proceeded on the basis that whatever the particulars or specification of the hospital it was likely to be a potential source of infectious disease in whatever locality it was built and used. ‘Against this history of judicial construction of earlier statutes, | approach the attempt to determine the intention of Parliament as expressed in the Gulf Oil Refining Act 1965. The structure of the Act, with its division into four parts, all introduced by a 9 preamble, thave already described. There isan obvious contrast between the draftsman’s technique in Part II granting powers for acquisition of lands delineated on the plans and his technique in Part III granting power to construct works. Works 1, 2, 3 and 4 are specifically described ins 15(1). ‘The plans of the works show their outline, their sections, and levels, In Part Il the lands to be acquired are delineated on plans 3 and 4. There is fh Nodescription of the refinery intended to be constructed, no particulars of its dimensions or engineering or chemical functions or capacity. The promoters appear to have deliberately decided not to include the refinery in Part Ill among the works which they sought power to construct, or if they did seek such power it has not been granted. In my view there is nothing in the words of the preamble which leads to the inference that Parliament intended in s 5(1) to grant power to construct a particular specified refinery as compared merely to a grant of power to acquire lands on which to construct an unspecified refinery which was not included in the works authorised by Part Ill. ~ ~ 1 (1869) LR 4 HL 171, [1861-73] All ER Rep 60 2. [1930] AC 171, [1929] All ER Rep 90 3 (1881) 6 App Cas 193, [1881-5] All ER Rep 5361024 All England Law Reports [1979] 3 AIER No case was’ cited at the bar of a statute which granted compulsory powers for acquisition of land for a purpose, and which had been held to have conferred statutory @ authority to construct and use the thing built on the land simply as an inference of legislative intention to be collected from the grant of compulsory powers for acquisition of land. I accept that the verb ‘authorised’ in this context carries the meaning proposed by Lord Jenkins in Pyx Granite Co Ltd v Ministry of Housing and Local Government!. So 1 conclude that May J reached a wrong conclusion. I do not find in this Act any statutory authority to construct or build or use this refinery. The promoters retained the liberty to build on their land such refinery as they wished, subject only to planning permission. They create nuisance at their peril. If the plaintiff establishes that she has suffered damage through nuisance, and that there is a threat that the nuisance will continue, it will be for the trial judge to decide on the remedy. I stated earlier in this judgment some anxiety about the difficulty that I felt in answering the question ordered to be tried as a preliminary question. There has been no ¢ evidence and for the purpose of the question the facts alleged in the statement of claim are assumed to be correct. It does not of course follow that the refinery on this site has caused or does cause a nuisance. The impact on the residents of adjoining houses of an oil refinery built on a square mile of land may vary greatly according to the particular specification and operation of the works constructed on the site. It does seem to me to be clear that by granting compulsory powers of acquisition of the land delineated on plan of 3, together with powers to construct the works specified in Part Ill of the Act, Parliament intended and authorised this agricultural land to be developed on a change of use to use for the purpose of an oil refinery subject to the controls of the planning authority. This is a different issue to the question whether Parliament gave authority to construct the particular refinery that has been built. But for the reasons stated earlier in this judgment, the trial of the allegations of the particular kind of nuisances alleged in the statement of @ claim may involve a nice enquiry into questions of the kind of inconvenience and loss of enjoyment that anyone living in such an industrial environment must be expected to put up with. Would finally add that in so faras any of the nuisancesalleged are proved to be caused by the railway, the sidings or other contraptions on the site which have been built as subsidiary works pursuant to s 16 of the 1965 Act, the plaintiff may have a right to compensation under s 16(3), and by a necessary corollary has no right of action in nuisance for such damage. For those reasons | agree with Lord Denning MR that the appeal should be allowed. > ~ Appeal allowed. Leave to appeal to the House of Lords granted. 9 Solicitors: Price é& Kelway, Milford Haven (for the plaintiff); Cartwrights, Bristol (for Gulf Oil). SumraGreen Barrister. 1 [1959] 3 AMER 1 at 22, [1960] AC 260 at 311-312