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the inquiry which had been held, as well as the evid-
ence at the inquiry.
In proceedings against both the Corporation and the
Minister for Local Government, Mr. Mu r p hy had
sought to have the order quashed. T h e defendants, in
their defence, had claimed that the order was lawfully
made.
No agreement alleged between Corporation and County
Council
Delivering the Court's judgment, Mr. Justice Henchy
said it had been argued on behalf of Mr. Mu r p hy that
the compulsory purchase order, being in respect of land
which the Corporation intended to acquire compul-
sorily for the purposes of the Act and which was out-
side their functional area and within the functional
area of the County Council, was invalid because the
Corporation should first have entered into an agreement
with the Council providing that it was the Corporation
and not the County Council who would acquire the
land compulsorily. It was not in dispute that the land
in question, which included Mr. Mu r phy 's land, was
situate in the functional area of the County Council,
or that the Corporation intended to acquire the land
compulsorily for the purpose of the Act. Neither was it
disputed that the Corporation h ad not entered into
any agreement with the County Council on the lines
stated, under S. 109 (2) of the Housing Act 1966.
On behalf of Mr. Mu r p hy it had been contended that
it was one thing for a housing authority to acquire land
by means of a Compulsory Purchase Or d er when the
land was within their own functional area, but that it
was quite a different thing when it was within the
functional area of another housing authority.
Mr. Justice Henchy said it had not been suggested
that the Corporation were not empowered to acquire
the land compulsorily.
It had been readily conceded that Section 109 (1) of
the Act gave them that power but counsel for the plain-
tiff had argued that the true interpretation of Section
109 (2) meant that, before they could do so, they should
have entered into an agreement with the Coun ty Coun-
cil providing that it was the Corporation and not the
Council who would exercise the function of acquiring
the land compulsorily.
Mr. Justice Henchy said the language of Section
109 (1) was un amb i guou s: "A housing authority may
perform any of their functions under this Act outside
their functional area." Section 109 (2) then provided
that when a housing authority intended to perform a
function authorised by Section 109 (1), the two housing
authorities "may make and carry out an agreement in
relation to the function, and where an agreement is
ma de und er this section, the parties may terminate it at
any time if they so agree." On behalf of the plaintiff
it h ad been suggested that the word "ma y" should be
given the meaning of "shall". However, a close exam-
ination showed that to give a ma nd a t o ry effect to
"ma y" would attribute to the parliamentary draftsmen
a slackness of thought and uncertainty of expression
quite unmerited by the precision of the surrounding
language. In no instance did there appe ar to be a
confusion of the one word for the other in the relevant
three sections.
Unambiguous language
Mr . Justice Henchy said that even to read "shall" for
"ma y" would not necessarily be sufficient to invalidate
the compulsory purchase order, for even if an
a g r e e m e n t
between the two housing authorities was necessary f°'
the performance of the function, the sub-section wa
s
silent as to when the agreement was to be entered into
Preliminary agreement unnecessary
It would be open to the Corporation to argue that a
11
agreement now entered into between them and the
CQunty Council in relation to acquiring the land bv
compulsory purchase order would be sufficient. Faced
with these and other difficulties, counsel for Mr. Mur*
phy argued instead that Section 109 (2) should be con-
strued as necessarily envisaging an agreement between
the two housing authorities before one of them
could
exercise a housing function in the functional area
01
the other. If, however, such an agreement was to be 3
condition precedent to the exercise of the power give'
1
in Section 109 (1), one would have expected the section
to say so. It conspicuously did not. Even if such %
agreement were held to be a necessary preliminary '
l
need not be an agreement to perform the function. An*
agreement in relation to the function would appear t°
qualify. If the making of such an agreement were
a
condition precedent, so would the carrying out of
T h a t would mean that Subsection 2 could have refer*
ence only to an agreement, capable of being made and
carried out before the performance of the function-
Th e re was no justification for so reducing the scope
0
the plain words of the section. He was satisfied that
1
the power given by Section 109 (1) was intended to b
e
exercisable only after compliance with a conditio'
1
imposed by Section 109 (2), such limitation of
power would be stated and not left to be inferred.
.
Mr. Justice Henchy said it had been argued on
beha'
of the plaintiff that if there was not to be such
3
condition precedent, administrative chaos could
result-
Development plan not in conflict with
Compulsor*
Order
It was further suggested that in the absence of pr'
0
'
agreement, the intrusion of the Corporation into th
e
functional area of the County Council could cut
aero*
5
the development plan which the County Council had t®
have in order to comply with Section 19 of the Loc<*
Government (Planning and Development) Act, 19%
It was urged that this Act and the Housing Act, 1960»
should be read together, said the Judge, but he consid'
ered it would be a breach of
a
f und ame n t al rule
01
statutory interpretation to treat them as a statutor*
whole. If Section 109 was read the way the Corporation
and the Minister would have it read, he failed to se
e
how any administrative chaos should follow. T h e con-
firmation of the compulsory purchase order need in n°
way cut across the powers and duties of the Count*
Council as a planning authority. Counsel for the Cor-
poration had conceded that before the land was devel'
oped, development permission under the 1963 Act must
be got from the County Council. Th e re was, therefore»
no question of the functions of the County Council as
3
planning authority being overborne by the compulsor)
purchase order.
Minister to decide
Regarding the submission on behalf of Mr. Murphy
that the Minister had acted
ultra vires
in confirming th
e
compulsory purchase order because the evidence give
11
at the public inquiry coercively showed that the objec-
tives of the Act would be better attained by the plai*
1
'
100