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 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