Immediately after the judgement in its favour the Company rebuilt the walls. The Parliamentary Committee ordered a notice of appeal to be issued and also made an approach to the Company. A meeting took place without the advisors but both sides could not agree any settlement of the dispute.
The Parliamentary Committe tried to get Sir Stafford Cripps to represent it at the appeal but, by this time he had retired from practice, and Mr C E Harman, K.C. was employed instead. He wrote an opinion indicating that there were reasonable grounds for appeal.
On 3rd September 1939, Britain declared war on Germany. The Parliamentary Committee came before the Council on September 18th and recommended it to proceed with the appeal. The Council instructed the Parliamentary Committee to try and obtain a postponement of the appeal. The Company agreed to this but it was found that the Court would only permit this if negotiations for a settlement were pending and were likely to prove successful. Since this was not the case, a special meeting of the Council was held on October 10th and decided, by thirty votes to seventeen, to go ahead with the appeal.
The appeal came before Sir Wilfred Greene, the Master of the Rolls, on 26th October 1939. Sitting on the bench with him were Lord Justice Clauson and Lord Justice Goddard. Mr C E Harman led for the Corporation and Mr Erskine Simes once again represented the Company. Most of the proceedings were taken up by Harman's submissions or by discussions between him and the judges. Mr Simes was asked to address the Court on only two points.
Mr Harman's arguments on the Private Street Works Act 1892 were closely linked to a certain reading of the conveyance. He pointed out that the Company was rewuired by the conveyance to construct Carlton and Wenworth Road right up to the boundary of its land. In the lower court it had been stated that the roads had never been fully completed at the sites of the walls and Mr Harman maintained that this meant that the Compay had in effect broken this term of the conveyance.
Asked what benefit came to the Corporation from this in view of the fact that the Company had granted no right of way over its road, Harman asserted that if the roads had been constructed up to the boundary then the whole of them, including the sites of the walls, would become 'highways repairable by the public at large' under the Council's resolution covered by the Private Street Works Act, 1892.
He was then asked if the Company's obligation to construct the roads right up to the boundary led to an obligation to maintain them in this way. He replied that it did and to justify this view referred to various other obligations which the conveyance imposed on the Company. Clause 4 required the Company to construct the roads 'in accordance with Building By-laws' and By-law 10 stated that the person laying out new streets should ensure, where practicable,that the streets were open at both ends.
Sir Wilfred Greene said that in his view this by-law would be 'ultra-vires' if it compelled a landlord to leave his land unfenced. He also raised a further objection by suggesting that once something had been constructed and approved by the local authority, it could then be altered without breach of the by-laws even if the particular alteration would have been an offence before approval had been given.
Harman urged that this could not be so as it would make nonsense of the by-law. He argued that By-law 10 had been written into the conveyance by virtue of clause 4 and that it was binding on the Company regardless of whether it was ultra-vires or not.
Mr Harman then referred to clause 18 in which the phrase 'scheme of roads' was used. This scheme extended over both estates and an essential feature of it was the continuation of Carlton and Wentworth Roads into the Cutteslowe Estate. He held that clause 18 committed the Company to the scheme and, therefore to the open continuation of Carlton and Wentworth Roads into the Cutteslowe Estate.
Lord Clauson offered a different interpretation of clause 4. Its real object, he suggested, was to free the Corporation from any obligation to follow the scheme of roads rather than to compel the Company to follow it. He lso drew a distinction between the construction and the maintenance of the scheme and stated that the conveyance provided for the construction phase only.He said that the fact that the Corporation had reserved under clause 18 the right to change the scheme, supported his interpretation.
TO answer this, Harman linked clause 18 with clauses 4, 12 and 16 and claimed that when the clauses were read together it became evident that the parties had bargained with each other on the assumption tht the roads were to be through roads. This made the original intention of both the Corporation and Company clear and the only question was whether there was anything in the conveyance which prevented the Company from changing its mind subsequently.
He thought that this was covered by clauses 5 and 9 which forbade the Company to put up any buildings other than those specified and where the walls were nowhere mentioned. THe effect of clause 5 was further strengthened, in his view, by clause 7 which forbade the Company from erecting buildings on the 'sites of the proposed roads' or between the building lines.
Regarding the provision for fences in Clause 7 Harman, like Sir Stafford Cripps, maintained that this did not cover the walls. Even if it did, he maintained that this exemption only applied to the 'proposed roads' and meant that they could not be kept up after the roads had been completed and were no longer 'proposed'.
Lords Goddard and Clauson disagreed with both these assertions and maintained that the provision 'fences or enclosures' could include the walls and that the phrase 'site of the proposed roads' was merely designating a particular area and could not be held to limit the period during which the Company could maintain the 'fences or enclosures.'
Finally Mr Hartman referred to clause 8 which required the Company to submit plans of its buildings to the Corporation for approval. The walls were buildings in the terms of this clause, he dasid, and plans for them had never been submitted. In response, the judges expressed suprise that the Corporation had waited three and a half years to express this complaint and suggested that if the plans had been submitted the Corporation would not have been able to withhold consent as a means of keeping the roads open but only if the walls were structurally unsound or for some comparable reason. However, they did ask Mr Erskine Simes to address them on this point.
Erskine Simes claimed that the phrase 'any house or other building' in phrase 8 applied only to structures rather like houses and could not be held to include the walls. He contended that even if he were wrong on this point it did not give the Corporation the right to demolish the walls without coming to court.
The discussion on Section 26 of this Act centred on the questions were buildings in the meaning of the Section. Everyone agreed that a wooden fence would not have been a building although a house would. Mr Harman agreed that the walls were unlikely to damage the sewers, although he thought it obvious that if anyone had to repair them they would be a serius inconvenience. This, he said, was sufficient to bring the walls within the mischief aimed at by the Section and entitled the Corporation to demolish them. The judges were inclined to accept that they were an inconvenience but Lord Goddard suggested that the result of this would be merely to limit any injunction granted to the Company so that it would have to construct the walls in such a way that there was easier access to the sewers.
Asked to address the court on theis point, Erskin Simes repeated the argument that had won him the original case. He maintained that the walls were neither a danger nor an inconvenience and that the Corporation had produced no evidence to show they were.
Sir Wilfred Greene first dealt with the conveyance. He considered that although clauses 4, 12, 16 aND 18 may have required the company to construct the roads up to the boundary of its land it did not oblige them to maintain them in this way so that they could introduce changes such as the walls if they wanted to. This was manifest from the way that the Corporation had itself reserved the right to change the road plan.
The phrase 'continuation streets' in clause 4 referred to the fact that Carlton and Wentworth roads were continuations of the streets to the west which were owned by the Corporation and did not mean that they had to be run without obsttruction into the Cutteslowe Estate roads inthe east. He thought that the phrase 'where practicable at both ends ' in By-law 10's stipulation that newstreets should be constructed in such a way as to remain open at both ends could be construed in such a way as not to interfere with the Company's right to fence their land.
The remaining points in the conveyance turned on whether the walls could be considered 'buildings'. In Sir Wilfred's opinion a 'building' was something for which it was reasonable to expect a plan to be submitted and this did not apply to a boundary wall. Even if it did apply, the fact that the Corporation had waited for over three years before complaining would have made it impossible for them to exercise any rights accruing to them from this clause.
The real difficulty with the Corporation's position was that it had failed to do the obvious thing which was to have reserved a right of way over the Company's roads.
Turning to the Private Street Works Act, 1892, Sir Wilfred ruled that it was incontestable that the Council's declaration could not have been applied to the walls and their sites if the walls had been lawfully erected. Since he had decided that there had been no breach of the conveyance, the Corporation's case under the Private Street Works Act immediately collapsed.
With regard to the position under the Public Health Act, 1875, he considered that the letter sent to the Company on 20th September 1937 telling it that the walls were in breach of the Act could not be considered to be a notice that they intended to remove the walls under Section 26. He considered that the walls might constitute some interference with the sewers that would bring them within the mischief aimed at by the Act but, because the Corporation had, in his view acted unlawfully in pulling down the walls, he would not modify the order he would make in any way> He said:
He dismissed the appeal with costs and refused permission to appeal to the House of Lords.
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