United Kingdom House of Lords Decisions

Subject_Private Legislation Procedure — Provisional Order — Condition Precedent Inserted Suspending the Operation of the Order — Adjustment of Clause — Report by Commissioners. Headnote:

The Town Council of Buckie promoted a Provisional Order having for its principal object to enable them to make and maintain a new harbour at Craigenroan, Portessie. Along with the leading purpose of the Order there was sought power to extend the existing burgh of Buckie so as to include the site of the new proposed harbour and the adjoining fishing village of Portessie. The estimated expense of constructing the proposed harbour was £44,800. The scheme of the Provisional Order was that this sum should be raised by a grant from the Treasury of £15,000, a grant from

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the Fishery Board of £5000, and a borrowing power of £30,000. The promoters adduced evidence that the Public Works Loan Commissioners were prepared to grant a loan of £30,000. The grant of £15,000 from the Treasury and the grant of £5000 from the Fishery Board were authorised subject to certain conditions set forth in letters from the Treasury and the Fishery Board respectively.

The Provisional Order was opposed by the trustees of the late John Gordon of Cluny, the Great North of Scotland Railway Company, and Lady Seafield.

After evidence had been led and counsel heard, the Chairman said:—I should like to ask you, Mr Wilson, if the promoters have any objection to make this perfectly clear, if it is not made perfectly clear already, that the promoters cannot proceed with their works if the Government do not make the grant of £15,000 and the Fishery Board do not make their grant of £5000?

Mr Wilson (for the Promoters)—I am desirous to have that made quite clear. We think ourselves that, as a condition of getting our first or second instalment, the work must be done to the satisfaction of the Government but not of the Fishery Board. We have got a promise pretty definite from them, but we would make it a condition that we should get their money.

Mr Wason—From both?

Mr Wilson—Yes.

The Chairman—What the Commission wish to guard against is putting the promoters in any position to go on with their £30,000 which they undertake to raise without this additional public money which they profess they will get.

The Chairman intimated that the Commission found the preamble proved.

At the adjustment of clauses the Chairman said:—Supposing for any reason which does not appear on the face of that agreement the Government should refuse to give the £15,000, would there still be power under your Order to proceed with the work independently?

Mr Wilson—As it stands, I think there would be.

The Chairman—That is what the Commission desire should not be the case.

Mr Wilson—That being so, while we do not in the least distrust the payment from the Treasury, I was going to insert this clause.

After further discussion of the clause suggested by Mr Wilson for the promoters, the Chairman said:—Whatever the reasons might be, notwithstanding the letter, the Lords of the Treasury might refuse to give the grant for any reason they like, and our view is that if for any reason they withhold the grant, then the promoters should not be at liberty to proceed with the Order.

Mr Wilson—We read this as binding the Lords of the Treasury, who have seen the plan.

The Chairman—We cannot go into that.

Mr Wilson—We would get money from them only upon condition that we began the works. Now if you make it a condition precedent that we should get the £15,000 before we go on with the Order, then we are in a dilemma.

The Chairman—That you should get the undertaking, not necessarily the money. This is rather a judicial point, and we cannot hold whether the Treasury are bound or not bound by that letter.

Mr Wason—You cannot get your half until you have spent a certain amount of money.

Mr Wilson—Yes, and if we fulfil these conditions and spend that money, then we will get our grant, because there is the voucher for it.

The Chairman—But we cannot decide whether the Treasury would be bound by that or not.

Mr Wilson—The plans have been before them, and there is no condition put forward that the plans are to be to their satisfaction at all. The only conditions are those which I have read.

Mr Pym—I should imagine this—we are granting the Order, it is not the Treasury. The Treasury are subject to our Order, and our Order is that you must not go on with the works supposing they do not give their grant—you must make a new Order, a new proposal altogether.

The Chairman—That is what is the view of the Commission. I think our better way would be to leave this question in the meantime.

Mr Wilson—I think so.

Mr Dundas—Yes. I think it should be a substantive clause.

The clause ultimately adjusted (section 63 of the Provisional Order), by which the Order was restricted from coming into operation until the conditions in question were purified, was in the following terms:—“None of the provisions of this Order except the provisions relating to the payment of the costs of this Order shall come into operation, or have any force or effect, unless and until the Secretary for Scotland is satisfied (which shall be sufficiently proved by a letter signed by him or by the Under-Secretary for Scotland, and addressed to the Town Council) that arrangements have been made for a grant of £15,000 from His Majesty's Treasury and a grant of £5000 fron the Fishery Board for Scotland in aid of the construction of the harbour.”

Lord Clifford of Chudleigh, Chairman, reported to the Secretary for Scotland, on behalf of the Commissioners, of date May 2, 1902, that they had agreed to the following report:—… “Evidence was laid before the Commissioners that the Treasury, on a recommendation made by the Board of Trade, were prepared to make a grant of £15,000, and that the Fishery Board for Scotland was also prepared to make a grant of £5000 in aid of the construction of the proposed harbour, subject to certain conditions.… The Commissioners have examined the allegations of the preamble proved, and recommend the

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issue of the Order provided these grants are assured to the promoters, and accordingly they caused a provision to be inserted suspending the operation of the Order till the Secretary for Scotland be satisfied that arrangements have been made for these grants being obtained.”