Coast protection order within powers conferred by Coast Protection Act 1949 though confirmed by Secretary of State in terms to do with control of rate of sand extraction by commercial firms–True purpose of order protection against erosion, not a reduction in rate of diminution of material resources
These were
motions in similar terms by distinct applicants, British Dredging (Services)
Ltd and British Dredging (South Wales) Ltd in the first motion and Hayes Metals
Ltd, trading as Margam Sand & Gravel Co, in the second, to quash the
Borough of Port Talbot Coast Protection Order 1973, made on October 25 1973 by
Port Talbot Borough Council, predecessors of the second respondents, the Afan
Borough Council, and confirmed on July 12 1974 by the first respondent, the
Secretary of State for Wales.
Mr G G
Williams (instructed by Holman, Fenwick & Willan, agents for Lean &
Lean, of Cardiff) appeared for the applicants; Mr H K Woolf (instructed by the
Treasury Solicitor) for the Secretary of State; and Mr G Eyre QC and Mr J Rees
(instructed by G Davies, of Port Talbot) for the council.
Giving
judgment, PARK J said that for many years the applicants had been extracting
sand from the seashore, under licences granted by the freeholders of Margam
Sands, and selling it. On October 25 1973 the Port Talbot Borough Council made
the order complained of, the effect of which was to make it unlawful for the
applicants to continue this business without a licence under section 18 (5) of
the Coast Protection Act 1949. The applicants objected to the order, and a
public inquiry was held. Having considered his inspector’s report, the
Secretary of State confirmed the order. The applicants now questioned the
validity of the order. They said that it was not within the powers of the Act,
and that their interests had been substantially prejudiced by noncompliance
with a requirement of the Act. All parties agreed that the court’s approach was
laid down in Ashbridge Investments Ltd v Minister of Housing and
Local Government [1965] 1 WLR 1320, where the Court of Appeal had
considered a somewhat similar situation which arose under the Housing Act 1957.
In that case Lord Denning MR said: ‘The court can only interfere on the ground
that the Minister has gone outside the powers of the Act or that any
requirement of the Act has not been complied with. . . . It seems to me that
the court should look at the material which the inspector and the Minister had
before them, just as it looks at the material before an inferior court, and see
whether on that material the Minister has gone wrong in law.’ Mr Williams submitted that both the Minister
and the inspector in the present case had misinterpreted the real purposes of
the Act, and that there was no evidence to support the order, which was
therefore invalid.
The Act was to
amend the law relating, inter alia, to the protection of the coast
against erosion and encroachment by the sea; ‘land’ included land covered by
water, and the definition of seashore was wide enough to include Margam Sands.
Section 18 did not provide that any particular activity had to take place, or
any particular situation had to arise, before an order could be made under it
by a coast protection authority. But whatever the conditions of the seashore,
an order could be made only to enable the authority to perform its duty of
protecting land against erosion and encroachment by the sea. The words of
section 18 appeared to be sufficiently wide to cover every foreseeable situation
in relation to the seashore. In his (Park J’s) judgment, when the state of the
seashore, from whatever cause, was such that it appeared to a coast protection
authority to be necessary or expedient for it to acquire the powers granted
under section 18 to enable it to perform properly its statutory duty, then the
making of a section 18 order would be permissible and would fall within the
powers under the Act. An order could not be made merely because there had been
a degree of erosion or encroachment by the sea. On the other hand, if an
erosion caused a reasonable apprehension of still furthererosion it might well
appear to a coast protection authority to be necessary or expedient to make an
order. There was nothing in the Act which restrained an authority from acting
until a catastrophe occurred. Authorities did not have to stand by until a
seashore became more and more denuded of sand, until the protection afforded by
the sand, for example, to the sea wall, had vanished, so that the wall was
breached in the next winter’s gale and the land flooded. The powers granted to
authorities by section 18 were to enable coast protection authorities to take
steps to prevent or mitigate the consequences to their land of the action of
the sea in all its moods.
In the present
case, the inspector had found that the order was necessary, and there was no
dispute that there was evidence to support this conclusion. He said that
changes in the coast, including erosion of an underlying stratum of clay, were
taking place, owing either to sand extraction, to storms or to alterations in
local tide conditions; he was unable to identify which was the real reason. He
said that further amenity reasons were not grounds for curtailing the removal
of sand, but he saw danger in over-exploitation of the beach’s current
resources. In the light of those findings, the Minister had ample evidence for
confirming the order. The contention that the inspector was seeking to use the
Act not to prevent erosion but to protect a material resource was not borne out
by the facts. It followed that the contention that the Minister had fallen into
error in confirming the order also failed. The Minister concluded that it would
be prudent to control the rate of sand extraction. In other words, he
considered it prudent to confirm the order. On the inspector’s recommendations,
he might equally have said that it was necessary or expedient for the authority
to acquire section 18 powers, and he could have confirmed the order in those
words. There was nothing in Ashbridge or the Act to suggest that the
Minister could not confirm an order because he thought it prudent to do so. The
Minister had neither gone outside the powers of the Act nor wrongly interpreted
it, and the motions accordingly failed.
