Belfast Corporation v OD Cars LTD

[1960] 1 All ER 65

• The Doctrinal Casebook
• Chapter 2
• Belfast Corporation v OD Cars LTD

Viscount Simonds – #

[…]

I come then to the substantial questions: What is the meaning of the word “take”? What is the meaning of the word “property”? What is the scope of the phrase “take any property without compensation”? My Lords, I would declare my indebtedness not only to the counsel for the parties but also to the Attorney-General for Northern Ireland and those assisting him for the help that they have given the House in the consideration of these questions. With their aid, your Lordships have explored the federal constitutions of the United States of America, of Canada and of Australia in which are to be found words similar, but, perhaps, not very similar, to the words now under review. But, my Lords, I doubt whether at the end of that journey the path is brightly illuminated. I should like, however, before I venture on it, to consider for a moment the simple language of the Constitutional Act with which we are concerned. I hope that I do not over-simplify the problem, if I ask whether anyone using the English language in its ordinary signification would say of a local authority which imposed some restriction on the user of property by its owner that that authority had “taken " that owner’s " property”. He would not make any fine distinction between “take”, “take over " or “take away” He would agree that “property” is a word of very wide import, including intangible and tangible property. But he would surely deny that any one of those rights, which in the aggregate constitute ownership of property, could itself and by itself aptly be called “property” and, to come to the instant case, he would deny that the right to use property in a particular way was itself property and that the restriction or denial of that right by a local authority was a “taking”, “taking away " or “taking over " of “property.”

I do not seek to qualify in any way what has been said in such cases as Central Control Board (Liquor Traffic) v. Cannon Brewery Co., Ltd. I have no right to do so. It is no doubt the law that the intention to take away property without compensation is not to be imputed to the legislature unless it is expressed in unequivocal terms. But this principle, on which learned counsel for the respondents so vigorously insisted, seems to me to have no bearing on the question what is the meaning of the phrase “take property without compensation” in a constitutional instrument such as the Government of Ireland Act. If, indeed, I must have recourse to any broad principle of law for the construction of these few simple words, I should remind myself that from the earliest times the owner of property, and in particular of land, has been restricted in his free enjoyment of it not only by the common law maxim sic utere tuo ut alienum non laedas, but by positive enactments limiting his user or even imposing burdens on him. I do not, therefore, approach this question of construction with any predisposition to enlarge the scope of the vital words. For, my Lords, I would here point out that, if such restrictions as the Acts of 1931 and 1944 impose cannot be enforced without the payment of compensation, the practical effect must be to deprive the Parliament of Northern Ireland of the power to legislate not only in this particular field in a manner recognised as necessary to its proper fulfilment in Great Britain but in numerous other fields also in which it has been widely realised that the rights of the individual must be subordinate to the general interest. Learned counsel for the respondents were constrained to admit that their success in this argument might lead to the invalidation of numerous Acts whose validity has been hitherto unchallenged. It would not be easy to reconcile this result with the power accorded to the Parliament by s. 4 of the Act to make laws for the peace, order and good government of Northern Ireland. It is right, however, that, in the interpretation of constitutional instruments, guidance should be sought from those courts whose constant duty it has been to construe similar instruments, if only because, as it appears to me, a flexibility of construction is admissible in regard to such instruments which might be rejected in construing ordinary statutes or inter partes documents. The courts of Northern Ireland have not hesitated to adopt this course and have found assistance in their task of construing their own constitution from the manner in which great judges among the English-speaking peoples overseas have dealt with kindred problems. I do not think that any better examples can be found than in the passages cited by the Lord Chief Justice from the judgments of Holmes, J., and Brandeis, J. Thus, when Brandeis, J., says in the passage quoted by the Lord Chief Justice from his judgment in Pennsylvania Coal Co. v. Mahon:

Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the state of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use,

that very learned judge indicates in clear terms the distinction which should guide us in determining whether or not legislation which diminishes the owner’s free enjoyment of his own property is a “taking” of that property. It is clear that such a diminution of rights can be effected without a cry being raised that Magna Carta is dethroned or a sacred principle of liberty infringed. I will say only one thing more about the American cases. The day may come when it will be necessary to consider the relevance to the constitution of Northern Ireland of the observation of Holmes, J., in the case already cited:

The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognised as a taking.

If the question is one of degree, I am clearly of opinion that the day did not arrive with s. 10 (2) of the Act of 1931.

My Lords, the distinction drawn between “regulating” and “taking” or “regulatory” and “confiscatory” will at once bring to mind the controversy to which placitum (xxxi) of s. 51 of the Australian Constitution has given rise. On decisions of the High Court of Australia on this placitum the respondents strongly relied. At one stage, learned counsel said he was prepared to rest his case on Minister of State for the Army v. Dalziel, the facts in which case were widely different from those we have now to consider. No doubt the language there under review “the acquisition of property on just terms " was not dissimilar to that in our constitutional Act, and these words have led to much the same controversy as have the Fifth and Fourteenth Amendments in the United States of America. Nor do I doubt that the same considerations are relevant to the determination of their meaning. Nor would I cast the least doubt on the decision in Dalziel’s case or anything that was said by the learned judges who decided it. But, having said so much and fully recognising the distinction that may exist between measures that are regulatory and measures that are confiscatory, and that a measure which is ex facie regulatory may in substance be confiscatory, I must add that if, as I suppose it is, the question is one of degree and the dividing line is difficult to draw, yet I have no doubt that such an enactment as the Act of 1931 and, in particular, s. 10 (2) falls well on the regulatory side of it. The respondents get no help from Australia.

[…]