the original order by the local authority was properly made, the Minister had power to confirm that order so made, and he points out to us (and if I may respectfully say so, there is great force in his argument) the inconveniences which arise from any other view. For example, it is clear that in the present case the area which has been decided to be the subject of the order is considerably larger than that of Mr. Marriott; it includes the other property to which I have referred. There is or may be also the question of an exercise of powers under sect. 3 of the Act, of the purchase of surrounding property. He reminds us that whereas formerly the powers of the local authority were limited, when they compulsorily acquired an area of land, to building houses on that area in place of the demolished ones, as was decided in R. v. Minister of Health, Ex p. Davis (1), now by this Act authority is given under sect. 5 to a local authority thereafter to sell or let the land and to deal with it in various ways to them seeming proper; and he points out that Mr. Marriott, by demolishing those houses, if Mr. Montgomery's view is right, has interfered with the powers of the local authority which are deemed necessary in the public interest, and that the Act can never have intended such a state of affairs to have arisen on these facts. Now in the first place Mr. Marriott, of course, is concerned only for his own property, and it is in regard to his property that I consider this matter. In my view Mr. Montgomery is right in his contention that the Minister had not before him the necessary material on which he could properly confirm this order of the local authority. I am not concerned in this case to consider by what means the Minister might or might not inform himself of the condition of affairs other than through the local inquiry. Our attention has been called to the case of Errington v. Minister of Health (2). I do not think it necessary here to consider that matter because of the facts of this case that the Minister did consider nothing other than that which he had learned at the local inquiry; the inspector, at the time when he held the local inquiry, was already apprised of the fact that the property had all been demolished, and it is not necessary in this case to impute to the Minister any further knowledge than that which he gained through his inspector at the local public inquiry. Having that knowledge and that information, I think it impossible to say that he could have confirmed this order, and for the following reason. I have already pointed out that under the Act it is necessary for the local authority, in order that their order may be operative, to obtain the confirmation of the Minister of the order made and submitted to the Minister and confirmed by him in accordance with the provisions of the second schedule. That second schedule contemplates, in para. 5, that the Minister may, if he thinks fit, confirm the order with or without modification, and, subject to certain questions which arise on the proviso to that paragraph, I think that those words

H

indicate that in modifying the order he must be taken to have regard at any rate to the matters which have appeared at the local inquiry, and that if modification is to extend to the exclusion of any particular house or part of the area, or even a refusal to confirm at all, there must be some subject-matter on which his jurisdiction can operate. It will be remembered that in sect. 1 of the Act, in the earlier part it was expressly provided that the area defined on the map should be defined in such a manner as to exclude from the area any building which is not unfit for human babitation or dangerous or injurious to health. The Minister is given power expressly by para. (iii) of the proviso to clause 5 of the second schedule, himself also, in considering whether he will confirm or modify, to deal with that matter in these words:

If the Minister is of opinion that any land included by the local authority in a clearance area ought not to have been so included, he shall in confirming the order so modify it as to exclude that land for all purposes from the clearance area.

It has been considered as a possible view that that clause is there dealing with the facts as they were at the time when the local authority did, as he thinks, improperly include certain houses, and that the Minister's power to exclude that land is limited to what is contained in para. (iii), and that his general powers of modification under clause 5 are to be limited to that particular matter, which would be a case of dealing with the subject-matter on the facts which existed at the time when the local authority had cognizance of them. But I cannot so read the language. I think those words are there inserted in relation to what follows, that is to say:

but if in any such case he is of opinion that the land may properly be purchased by the authority under sect. 3 of this Act, he shall further modify the order so as to authorise the local authority to purchase that land under the said sect. 3 and not as being land comprised in the clearance area.

That is to say, having modified the order by excluding the land from being part of the clearance area, he may nevertheless, if he thinks it is right, permit the local authority to treat it as land under sect. 3, that is to say, land not in the clearance area but land surrounded by or adjoining the clearance area, in which case different provisions and different considerations may arise. For example, that land might be or very likely would be land which was not in itself in an insanitary state at all, because it would be merely purchased to secure a cleared area of convenient shape and dimensions, and different questions of compensation and the like might arise. But I find it quite impossible to read that paragraph, which seems to me to be primarily devised not to extend the power of the Minister, which I think he would have under the opening words of para. 5 of the second schedule, to modify the order by excluding a part of the order, so as to extend it to giving him power to enable the authority

4 [JULY 4, 1936] ALL ENGLAND LAW REPORTS ANNOTATED [Vol. 2

to purchase under sect. 3, although the authority have not themselves sought that power; and that that was necessary is shown by proviso (ii) which says that :

the order as confirmed by the Minister shall not: (a) authorise the local authority to purchase compulsorily any land which the order would not have authorised them so to purchase if it had been confirmed without modification.

It was therefore necessary, if the Minister were to be given power to order
the purchase under sect. 3 of what has been called grey, the land outside
the clearance area, that express power should be given him for that
purpose, otherwise he would find himself limited by the proviso (ii) (a),
because the local authority had not originally sought the power.

Therefore, coming back to the view which I intimated at an earlier
stage of my judgment, that he may modify as he thinks fit, subject to
this, that he cannot authorise the purchase of that which the local
authority do not require otherwise than in accordance with proviso (iii),
the result is that he has to take into consideration matters as they are
at the time of the local inquiry. Now at the time of the local inquiry
there were no houses upon the land at all. The learned Attorney-General
rather appeared to concede, when the question was put to him by my
Lord, that if between the date of the declaratory resolution by the local
authority and the time when they proposed to make their order, the
houses had been demolished, the local authority could not have made
an order, notwithstanding the fact that they had declared a declaratory
resolution, and it seems to me that that is a right conclusion to come
to, because under sect. 1 they passed a resolution that the area is to be
cleared of all buildings in accordance with the provisions. It is clear
they could not order the demolition of the buildings in the area if they
proceeded or intended to proceed by process of demolition rather than by
purchase, because ex hypothesi there would be no buildings in the area
to be demolished. Similarly, I do not think they could purchase the
Iland which is said to be for the purpose of securing the demolition of the
buildings thereon-there would be no such buildings to be demolished.
The same considerations which urge them to decide on the form of their
order, more particularly the requirement that they shall exclude from
their order buildings which are not unfit for human habitation, which
they have to do even in the declaratory resolution itself, seem to me to
apply equally to the modifications by the Minister and confirmation by
the Minister. The whole substratum of the Act, so far as it is here
relevant, contemplates the presence of buildings proper to be demolished.
Where there are no buildings there can be no scope for the operation

of the order.

For these reasons I have come to the conclusion that whatever may be the limitations which it imposes upon the powers of the authority, which

I have no doubt are powers which have been sought to be exercised entirely bona fide and in the interests of the social amenities of Nottingham -I must come to the conclusion that as the Act now stands the fact that there was no subject-matter on which the Act could operate at the time of the inquiry, prevented the Minister on those facts from confirming the order either with modification or without modification; and in those circumstances it seems to me that this appeal must fail. But I would answer one matter which the Attorney-General raised when he said that the learned judge said that the Minister at the time of his confirmation had not a set of circumstances which authorised him to act, and that there is no means in the Act by which the Minister can apprise himself of the situation as between the date of the local inquiry and the time when he seeks to act. For the present purpose it is enough to say that at the date of the local inquiry held for the purpose of transmitting the facts to him, the situation which we have considered in the present case had already come into existence, and therefore the difficult problem which the learned Attorney-General raised need not be considered.

ROMER, L.J.: The question which this court has to determine on this appeal is one of the proper construction of Part I of the Housing Act, 1930, the question being this: when the Minister of Health confirms an order made by the local authority, whether it be a clearance order or a compulsory purchase order, must he merely consider the circumstances as they existed at the date when the local authority made the order, or should he consider the circumstances as they exist and are disclosed by the report of the result of the public local inquiry in those cases where objection has been raised to the order? There is very little in the Act itself to throw light upon the solution of that question, but on the whole, I have arrived at the conclusion that the learned judge was right in adopting the latter of the two constructions and in holding that where the circumstances as they exist or are shown to exist at the date of the public local inquiry are such that the local authority would at that time have no jurisdiction to make the order, the Minister of Health himself is unable to confirm the order. It must be remembered, I think, that the object of this Act is to enable the local authority to enforce the clearance of unhealthy areas; that is the primary object of the Act, and the fact that, in the course of exercising those powers, they may become possessed of land which they can sell under sect. 5 of the Act, or which they can appropriate for any purpose for which they are authorised to acquire land, does not appear to me to throw any light on the matter which we have to decide. Prima facie, therefore, if at the date of an order being made, whether it be made by the local authority without confirmation, or whether it only takes effect on confirmation by the

Minister of Health, as it does in the case of clearance orders and compulsory purchase orders, there is no clearance to be effected in an unhealthy area, the order should not be made. I think, too, the fact which has been relied on strongly by SLESSER, L.J., that the Minister can in terms confirm the order with or without modification, does strongly indicate that the Minister must consider the facts that are brought to his knowledge as a result of the public local inquiry.

There are to be found in the second schedule, para. 5, certain words which have caused me some little difficulty and which I think do afford some ground, certainly at first sight, for the contention that the Minister of Health has to regard the facts, not as they exist when he is considering the matter, but as they exist when the matter is being considered by the local authority. The words are to be found in proviso (iii) to para. 5 of the second schedule; they are in these terms:

If the Minister is of opinion that any land included by the local authority in a clearance area ought not to have been so included, he shall in confirming the order so modify it as to exclude that land

words that seem at first sight, as I say, to indicate that the Minister has nothing to do with the question of whether, by reason of a change of circumstances since the local authority took the matter in hand, the particular land would not, if the order were then made, be included in the order or the area. I think, however, the answer to that contention based upon these words, is this. It is admitted by the AttorneyGeneral, that if, after the local authority has declared the existence of the clearance area under sect. 1 of the Act, the circumstances have changed, say, by the pulling down of the buildings on the area, so that there is no longer any object in making the clearance order or a compulsory purchase order, the local authority should not make such an order; and it will be observed that this proviso (iii) is only dealing with the question of whether particular land ought to have been included by the local authority in a clearance area, and is not dealing with the question of whether the land, although properly included in the clearance area, ought not to have been included in the compulsory purchase order. It would therefore follow, if these words are to be treated as limiting by implication the powers of the Minister, that if he found that land had been properly included in the clearance area but, by reason of it having been cleared in the meantime, had been improperly included in the compulsory purchase order, he would have no power to interfere. That cannot be so. If the Minister of Health were to find that land, though properly included in a clearance area when the resolution establishing that area was passed, had been, owing to a change of circumstances, improperly included in the order of the local authority, it would be his bounden duty to refuse to confirm that order, in view of the admission