The Gazette 1974

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

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

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

the other. If, however, such an agreement was to be 3

condition precedent to the exercise of the power give'

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 '

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

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

the plain words of the section. He was satisfied that

the power given by Section 109 (1) was intended to b

exercisable only after compliance with a conditio'

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

condition precedent, administrative chaos could

result-

Development plan not in conflict with

Compulsor*

Order

It was further suggested that in the absence of pr'

agreement, the intrusion of the Corporation into th

functional area of the County Council could cut

aero*

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

f und ame n t al rule

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

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

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

compulsory purchase order because the evidence give

at the public inquiry coercively showed that the objec-

tives of the Act would be better attained by the plai*

100