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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> British Oxygen Co Ltd v Minister of Technology [1970] UKHL 4 (15 July 1970)
URL: http://www.bailii.org/uk/cases/UKHL/1970/4.html
Cite as: [1970] UKHL 4, [1970] 3 All ER 165, [1970] 3 WLR 488, [1969] 2 WLR 892, [1971] AC 610

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/4/3/1190

    HOUSE OF LORDS

    BRITISH OXYGEN COMPANY LIMITED

    v.

    MINISTER OF TECHNOLOGY

    (formerly the Board of Trade)

    Lord Reid

    Lord Reid
    Lord Morris of Borth-y-Gest
    Viscount Dilhorne
    Lord Wilberforce
    Lord Diplock


    My Lords,

    The Appellants seek declarations that certain items of their industrial
    plant are eligible for grants under the Industrial Development Act, 1966.
    Until that year taxpayers could claim investment allowances as of right.
    But that system was replaced by the provisions of the 1966 Act which
    empowered the Board of Trade, and now the Minister of Technology, to
    make grants if the conditions laid down in the Act apply.

    The Appellants produce in saleable form the atmospheric gases oxygen,
    nitrogen and argon and also other substances including hydrogen. The
    atmospheric gases are delivered to customers in liquid form at very low
    temperatures and under little more than atmospheric pressure. The
    hydrogen is delivered at ordinary temperature but under very high pressure.
    The plant with which this case is concerned is used to effect such delivery.
    It includes two types of tanker and two types of cylinder for containing gas
    under pressure.

    The large tanker consists of a Foden four wheeled tractor which supports
    the front end of a long tank of some 400,000 cubic feet capacity, the other
    end being attached to a double bogey. The smaller tanker consists of a
    tank about half that size mounted on an ordinary four wheel lorry chassis.
    These transport the liquid gases in vacuum insulated containers and have
    elaborate and expensive components: the tanks alone cost over £15,000
    and £11,000 respectively. Outwardly they look much the same as tankers
    seen daily on the public roads transporting liquids such as petrol, oil or milk.

    The first type of cylinder is used for delivery of hydrogen at very high
    pressure. Batteries of nine cylinders with various controls are mounted on
    trailers. The cylinders can readily be detached and they could be used
    separately. But in practice they never are used separately and they are
    only detached from the trailers very seldom for maintenance and inspection.
    When hydrogen is delivered to customers in these cylinders sometimes it
    is at once transferred to the customers' storage plant but sometimes the
    trailer is left with the customer for a time and he draws hydrogen from the
    cylinders as he needs it.

    The Appellants use very large numbers of the second type of cylinder
    each of which is a separate unit. It is delivered full of oxygen or some other
    gas. The customer uses the contents as required and the cylinder is then
    collected by the Appellants and refilled. It is really a type of returnable
    container.

    I must now set out the relevant parts of the 1966 Act:

    " 1.—(1) Subject to the provisions of this section, the Board of Trade
    " (hereafter in this Act referred to as ' the Board ') may make to any
    " person carrying on a business in Great Britain a grant towards
    " approved capital expenditure incurred by that person in providing new
    " machinery or plant for use in Great Britain—

    " (a) for carrying on a qualifying industrial process in the course
    " of that business ; or

    " (2) For the purposes of this section a qualifying industrial process
    " is a process for or incidental to any of the following purposes, that
    " is to say—

    " (a) the making of any article ;


    2

    " (3) For the purposes of this section—

    " (a) the repair or maintenance in the course of a business of an
    " article which is used in the course of that business for carrying
    " on a process for or incidental to any of the purposes mentioned
    " in subsection (2) of this section ;

    " (b) the storage in the course of a business of anything which
    " is to be used in the course of that business for carrying on any
    " such process or which is to be or has been subjected to, or has
    " resulted from, any such process carried on in the course of that
    " business ; and

    " (c) the packing in the course of a business of anything which is
    " to be or has been subjected to, or has resulted from, any such
    " process carried on in the course of that business,
    " shall each be treated as a process incidental to that purpose, but,
    " save as aforesaid, repair, maintenance, storage or packing shall not
    " be treated as a process incidental to any of the purposes mentioned
    " in subsection (2) of this section.

    " (6) Subject to any order under section 7 of this Act, the amount of
    " any grant under this section shall be twenty per cent. of the expenditure
    " in respect of which it is made, except that it shall be forty per cent.
    " of the said expenditure so far as it qualifies as development area
    " expenditure in accordance with Schedule 1 to this Act."
    " Machinery or plant " is defined in section 13(1):

    " ' machinery or plant ' includes part of any machinery or plant but
    " does not include a computer, ship or aircraft or any vehicle except—

    " (a) a vehicle constructed or adapted for the conveyance of a
    " machine incorporated in or permanently attached to it and of no
    " other loud except articles used for the purposes of the machine ;

    " (b) a vehicle constructed or adapted for the conveyance or
    " haulage of loads in or about private premises, including the site of
    " building or civil engineering operations ; ..."

    The Respondent maintains that the tanks and hydrogen cylinders are parts
    of the vehicles to which they arc attached and are therefore excluded from
    eligibility for grant by section 13. The Appellants maintain that they ought
    to be regarded as separate items of plant and they rely in particular on the
    first exception from the exclusion of vehicles. That exception broadly applies
    to machines on wheels: it does not apply to plant on wheels. But the
    Appellants rely in particular on the words " and no other load ". They argue
    that these words shew that " vehicle " is intended to have a narrow meaning
    and to apply only to a chassis. If a machine is incorporated in or permanently
    attached to a chassis the chassis and machine together would normally be
    regarded as being a vehicle: to call such a machine a " load " requires the
    notional separation of the two. If " vehicle " has this narrow meaning then
    the chassis and plant permanently attached to it must also be notionally
    severable. Logically this argument may be attractive but I think it puts
    much too much weight on the draftsman's use of the word " load ". This
    provision does not differentiate between parts of the vehicle: the whole
    vehicle including the machine is made eligible for grant. So the provision
    read as a whole affords no support for the Appellants' contention that the tank
    can be notionally separated from the chassis where in fact the two are clearly
    part of a single unit. The whole tanker is a vehicle: it is designed for use
    as such and is in fact used as a single unit for transporting the liquified gases.

    But the hydrogen cylinders are in a somewhat different position. Two
    arguments are open to the Appellants which would not apply to the tankers.
    In the first place it could be said that the whole unit is not a vehicle.
    For some purposes anything on wheels is a vehicle. But the word
    could have a narrower meaning of something used to carry goods (or
    people) from one place to another. So a storage tank built on wheels for
    convenience might not be regarded as a vehicle if its real purpose was

    3

    storage rather than transportation. But the primary purpose of the hydrogen
    cylinders with the trailer appears to be for delivery and not for storage of the
    hydrogen. The second possible argument is that in fact the cylinders are
    not part of the vehicle but are a load carried by the vehicle: it is true that they
    are readily detachable and if they were in fact detached in the course of use
    they might be regarded as a load. But they are in fact never detached in use.
    The line between what is a load and what is a part of the vehicle may some-
    times be difficult to draw, but here on the facts I think that the cylinders
    must be regarded as parts of the vehicle, and therefore as excluded from
    eligibility for grant.

    The single gas cylinders raise different and more far-reaching issues. They
    cost about £20 each and in the three years after the 1966 Act came into force
    the Appellants purchased a very large number of them at a cost of over
    £4,000,000. The Appellants complain that the Respondent has made a rule
    not to pay grant on any item of plant costing less than £25, at least unless
    it is used in conjunction with other items. So it is necessary to consider what
    is the duty of the Respondent in administering the Act and what rights, if
    any, the Act confers on those eligible for grants.

    Section 1 of the Act provides that the Board of Trade " may " make grants.
    It was not argued that " may " in this context means " shall ", and it seems
    to me clear that the Board were intended to have a discretion. But how were
    the Board intended to operate that discretion? Does the Act read as a whole
    indicate any policy which the Board is to follow or even give any guidance
    to the Board? If it does then the Board must exercise its discretion in
    accordance with such policy or guidance (Padfield v. Minister of Agriculture
    [1968] AC 997). One generally expects to find that Parliament has given
    some indication as to how public money is to be distributed. In this
    Act Parliament has clearly laid down the conditions for eligibilty for grants
    and it has clearly given to the Board a discretion so that the Board is not
    bound to pay to every person who is eligible to receive a grant. But I can
    find nothing to guide the Board as to the circumstances in which they
    should pay or the circumstances in which they should not pay grants to
    such persons.

    The relevant part of the long title is " An Act to provide for the making
    " of grants out of moneys provided by Parliament towards expenditure on the
    " provision of new business assets ". There is no guidance there. Then
    section 1(6) deals with eligibility and provides that the amount of any
    grant shall be 20 per cent. of the expenditure in respect of which it is made.
    Sections 2 to 6 deal with special cases. Section 7 is a general power to vary
    the rate of grant by order. None of these throws any light on this matter,
    nor does section 8 which deals with conditions to be imposed in making
    grants.

    Sections 11 and 12 are perhaps more relevant. Section 11 provides for
    the appointment of committees to advise the Board on the administration
    of the Act and it could be taken as an indication that otherwise the Board's
    discretion is unlimited. Section 12 provides for an annual report to Parlia-
    ment so that Parliament can ex post facto consider the way in which this
    discretion has been exercised.

    Section 13 is a definition section. "Approved capital expenditure" is
    to mean " expenditure appearing to the Board to be of a capital nature
    " and approved by them for the purposes of the grant ". This again gives no
    guidance as to reasons for which approval can be given or withheld.

    I cannot find that these provisions give any right to any person to get a
    grant. It was argued that the object of the Act is to promote the modernisa-
    tion of machinery and plant and that the Board were bound to pay grants
    to all who are eligible unless in their view particular eligible expenditure
    would not promote that object. That might be good advice for an advisory
    committee to give but I find nothing in the Act to require the Board to act
    in that way. If the Minister who now administers the Act, acting on behalf
    of the Government, should decide not to give grants in respect of certain
    kinds of expenditure. I can find nothing to prevent him. There are two
    general grounds on which the exercise of an unqualified discretion can be

    4

    attacked. It must not be exercised in bad faith, and it must not be so
    unreasonably exercised as to shew that there cannot have been any real
    or genuine exercise of the discretion. But apart from that if the Minister
    thinks that policy or good administration requires the operation of some
    limiting rule, I find nothing to stop him.

    It was argued on the authority of R. v. Port of London Authority [1919]
    1 K.B. 176 that the Minister is not entitled to make a rule for himself
    as to how he will in future exercise his discretion. In that case Kynoch
    owned land adjoining the Thames and wished to construct a deep water
    wharf. For this they had to get the permission of the Authority. Permission
    was refused on the ground that Parliament had charged the Authority with
    the duty of providing such facilities. It appeared that before reaching their
    decision the Authority had fully considered the case on its merits and in
    relation to the public interest. So their decision was upheld.

    Bankes L.J. said (at page 184): "There are on the one hand cases where
    " a tribunal in the honest exercise of its discretion has adopted a policy,
    " and, without refusing to hear an applicant, intimates to him what its
    " policy is, and that after hearing him it will in accordance with its policy
    " decide against him unless there is something exceptional in his case. I
    " think counsel for the applicants would admit that, if the policy has been
    " adopted for reasons which the tribunal may legitimately entertain, no
    " objection could be taken to such a course. On the other hand there are
    " cases where a tribunal has passed a rule or come to a determination not
    " to hear any application of a particular character by whomsoever made.
    " There is a wide distinction to be drawn between these two classes."

    I see nothing wrong with that. But the circumstances in which discretions
    are exercised vary enormously and that passage cannot be applied literally
    in every case. The general rule is that anyone who has to exercise a
    statutory discretion must not " shut his ears to an application " (to quote
    from Bankes L.J. on page 183). I do not think there is any great difference
    between a policy and a rule. There may be cases where an officer or
    authority ought to listen to a substantial argument reasonably presented
    urging a change of policy. What the authority must not do is to refuse to
    listen at all. But a Ministry or large authority may have had to deal
    already with a multitude of similar applications and then they will almost
    certainly have evolved a policy so precise that it could well be called a rule.
    There can be no objection to that provided the authority is always willing
    to listen to anyone with something new to say—of course I do not mean
    to say that there need be an oral hearing. In the present case the Respon-
    dent's officers have carefully considered all that the Appellants have had
    to say and I have no doubt that they will continue to do so. The Respon-
    dent might at any time change his mind and therefore I think that the
    Appellants are entitled to have a decision whether these cylinders are
    eligible for grant.

    They appear to involve capital expenditure—though that is for the
    Respondent to decide—and they are new plant for use in Great Britain.
    It is not suggested that the production of these gases is not the making of
    an article and they cannot be produced in saleable form unless they are
    immediately enclosed in a suitable container. So in so far as these cylin-
    ders are used to receive the gases when ' made' they are in my view used
    in a process incidental to the ' making' of the gases. If the gases are only
    pumped into them at a later stage then they may be used for storage within
    the meaning of section 1(3), and that is deemed to be a process incidental to
    the making. But I would hold that storage means keeping in store and
    the gases are no longer kept in store when they are sent out in the cylinders
    for delivery to customers. I do not think it necessary to consider the mean-
    ing of packing because on my view it will add nothing on the facts of this
    case.

    If the cylinders are used partly for storage and partly for delivery of the
    gas and storing it on the customers' premises, then it is necessary to consider
    the position of plant which has a dual purpose. It was suggested in arm
    ment and I do not think that it was denied that in such a case it is

    5

    competent for the Respondent to approve such part of the capital expen-
    diture as may be held to be appropriate for the eligible purpose. I do not
    find it possible on the facts which we have to make any definite finding
    which could be incorporated in a declaration but this does mean that to a
    small extent the Appellants are successful. I would dismiss the appeal
    with a slight variation of the order of the Court of Appeal and award to the
    Respondent three-quarters of his costs in this House.

    Lord Morris of Borth-y-Gest

    My Lords,

    I have had the advantage of reading in advance the speech of my noble
    and learned friend Lord Reid and I agree with it and with the order
    proposed.

    Viscount Dilhorne

    My Lords,

    The Industrial Development Act, 1966 came into force on the 12th
    August of that year. By that Act, the Board of Trade, now the Minister
    of Technology, was given power to make grants towards approved capital
    expenditure incurred in providing new machinery or plant for use in Great
    Britain for carrying on a qualifying industrial process in the course of that
    business (s.l(1)).

    A White Paper " Investment Incentives" (Cmnd 2874) was published
    on the 17th January, 1966 and by virtue of s.13(5) of the Act, a grant may
    be made in respect of expenditure incurred after that date.

    On the 9th May, 1966 the Appellants wrote to the Board of Trade
    sending the Board some notes " of certain categories of plant assets in use
    " within our organisation which do not appear immediately to come within
    " the definition of manufacturing assets and therefore entitled to enjoy the
    " new cash grants ". They contended that all these assets constituted part
    of the manufacturing activity and qualified for cash grants.

    The Board of Trade replied at length on the 20th July, 1966. In the
    course of that letter in relation to stand-by equipment they made the follow-
    ing statement to which in the course of this litigation great importance has
    been attached:

    " In this case, as in all others, the £25 lower limit of cost for single
    " items eligible for grants would apply."

    On the 11th August, the day before the Act came into force, the Appel-
    lants wrote to the Board with regard to three classes of equipment, tankers,
    ' hydrogen trailers ' and cylinders.

    S.13(1) of the Act inter alia states that

    " machinery or plant includes part of any machinery or plant but
    " does not include a computer, ship or aircraft or any vehicle except—

    " (a) a vehicle constructed or adapted for the conveyance of a
    " machine incorporated in or permanently attached to it and of no
    " other load except articles used for the purposes of the machine;
    (b) a vehicle "

    On the 23rd September the Board replied saying that in their view tankers
    taken as a whole are vehicles and ineligible for grants; that the essential
    function of the cylinders was one of distribution and that " No grants are
    " payable under the Act on containers in any form " ; and that the purpose of
    the hydrogen trailers appeared to be similar to that of containers, namely
    distribution and storage.

    On the 7th July, 1967 the Appellants issued an originating summons seeking
    the determination of the court of the questions raised in this correspondence.


    6

    On the 24th October, 1967 the Board wrote to the Appellants saying:

    " It has occurred to the Board's legal advisers that you may not appre-
    " ciate the significance of the Government policy underlying the invest-
    " ment grants scheme. The Board take the view that it would be
    " inconsistent with such policy to make grants in the case of any
    " equipment such as that in dispute, which the Board regard as serving
    " primarily a distributive function, even if, which is not admitted, the
    " payment of those grants would be authorised by the Act. For this
    " reason, even if your clients were successful in obtaining declarations
    " favourable to them on the questions raised in the Summons, the Board
    " would nevertheless, in the exercise of their discretion, feel bound to
    " refuse to make a grant."

    In consequence of this letter the Appellants amended the summons to claim
    the following declarations: —

    " 4. A declaration that (a) the tank and pump proportions of the said
    " gas tankers (b) the said hydrogen gas trailer and (c) the metal cylinder
    "... are capable of being approved capital expenditure within the
    " meaning of sections 1(1) and 13 of the Act notwithstanding that each
    " (1) is a form of container or

    " (2) serves a distributive function

    " 5. A declaration that the Board of Trade is not entitled to decline to
    " make a grant towards bulk capital expenditure on the said metal
    " cylinders on the sole ground that each cylinder costs less than £25.

    " 6. If any of the said items are approved capital expenditure as afore-
    " said a declaration that section 1(1) of the Act imposes on the Board of
    " Trade a duty to make a grant towards the same."

    Photographs of the tankers in question were produced at the hearing. They
    are of two types, a large tanker in which liquid oxygen, argon and nitrogen
    are conveyed and a smaller tanker also used for the carrying of liquified gas.
    The tank part is welded to the chassis.

    Mr. Brightman for the Appellants contended that the tank part and the
    pumping equipment attached thereto did not become part of a vehicle by that
    attachment; that in s.13(l) a distinction was drawn between a vehicle and its
    load and that in construing ' a vehicle' one should have regard to the scope
    and object of the Act.

    The scope of the Act clearly excludes vehicles other than those which come
    within paragraphs (a) and (b) of the definition of machinery or plant. I see
    no reason for saying that it was not one object of the Act to exclude them.
    Even if the inference can be drawn from the wording of paragraph (a) that
    the machine incorporated in or permanently attached to a vehicle is a load, it
    does not follow that a tanker whether it be for the carrying of liquid or gas
    can be regarded as anything other than a vehicle. But I read the words of
    this paragraph not as meaning that a machine incorporated in or permanently
    attached to a vehicle is a load but as providing that on such a vehicle only
    articles used for the purposes of the machine may be carried as a load.

    In my opinion the photographs produced are really conclusive on this
    question. They show the tankers to be similar to many other tankers which
    travel on our roads and it would in my opinion be wrong to treat the tank part
    as not forming part of the vehicle.

    The " hydrogen trailers " consist of a number of cylinders fixed on a
    trailer. When detached from its motive part, the trailer has one axle at the
    rear. When the motive part is attached, the front end of the trailer rests
    on the rear end of the motive part. The trailer is thus similar to many other
    trailers in use on the highways and whether or not attached to the motive
    part, cannot in my opinion be properly described otherwise than as a vehicle.
    The question here is whether the cylinders on the trailer do or do not form
    part of the vehicle. They are filled with gas on the Appellants' premises
    and then taken to the premises of one of the Appellants' consumers. The
    trailer may be left there until the gas is used. It is then brought back to
    the Appellants' premises and the cylinders are refilled. The cylinders are
    fixed on the trailer and are only taken off it at intervals for the purpose
    of testing the cylinders.

    7

    The " hydrogen trailer " is in my opinion a vehicle adapted for the con-
    veyance of hydrogen gas. The cylinders contain the gas just as the tanks
    of the tankers contain the liquid. I cannot draw any distinction between
    them. They are in my opinion all vehicles excluded by s. 13 from the
    scope of the Act.

    A grant can only be made towards approved capital expenditure incurred
    in providing new machinery or plant

    " (a) for carrying on a qualifying industrial process in the course of
    " that business ; or

    "(b) " (s.1(1))

    " A qualifying industrial process " is defined in s. 1(2) as a process for or
    incidental to any of five specified purposes, the first of which is " the making
    " of any article " and that is the only purpose with which we are concerned
    in this case.

    Putting liquified gas into tankers and hydrogen gas into cylinders on the
    trailers for distribution to the Appellants' customers cannot in my opinion
    be regarded as a process either incidental to the liquefaction of gas or to
    the making of hydrogen gas. If the tankers and hydrogen trailers are not
    vehicles and come within the definition of new machinery or plant, they are
    not in my opinion for use in a process for or incidental to the making of the
    liquified gas or of the hydrogen. On this ground too in my opinion the
    Appellants' claim in relation to this equipment fails.

    The metal cylinders, which vary in size, are also used to contain gases.
    Those filled with hydrogen are filled directly from the process plant. When
    tilled, they are kept on the Appellants' premises until the gas is required to
    fulfil an order. Oxygen, nitrogen and argon are produced initially in liquid
    form, the liquid being stored in bulk storage tanks. The liquid is converted
    into gas which is fed directly into the cylinders. Nitrous oxide, dissolved
    acetylene and other gases are also put into cylinders. They are kept on the
    Appellants' premises until the gas is required by customers.

    S. 1(3) of the Act, so far as material, reads as follows: —
    " (3) For the purposes of this section—

    " (a). . . . . . . . . . .

    " (b) the storage in the course of a business of anything which is
    " to be used in the course of that business for carrying on any such
    " process or which is to be or has been subjected to. or has resulted
    " from, any such process carried on in the course of the business ;
    " and

    " (c) the packing in the course of a business of anything which
    " is to be or has been subjected to. or has resulted from, any such
    " process carried on in the course of that business,
    " shall each be treated as a process incidental to that purpose, but, save
    " as aforesaid, repair, maintenance, storage or packing shall not be
    " treated as a process incidental to any of the purposes mentioned in
    " subsection (2) of this section."

    So new machinery and plant for use for storage or packing is not to be
    treated as used for carrying on a qualifying industrial process unless the
    storage comes within paragraph (b) and the packing within paragraph (c).
    11 machinery or plant is used for storage or packing in the course of the
    Appellants' business of anything which has resulted "from a process for or
    incidental to the making of liquified gas or gas, then that machinery or plant
    is eligible for a grant. The Act nowhere says that no grant is payable on
    containers in any form.

    The cylinders are clearly plant. They form no part of the end product of
    the processes applied in the Appellants' works. They contain those products.
    They are not plant used for packing those products but are they not and
    can they not be used for storing them? If used for storage of the end
    products, then the storage is to be treated as a process incidental to the
    making of the liquid gas and the gases put in them and the cylinders are
    eligible for grant.

    8

    On the facts so far as they are known to us, it appears that these cylinders
    serve a dual purpose, for containing the gases and liquids when gas is being
    delivered to a customer and for storage on the company's premises until
    the gas is required by a customer. The tanks in which liquid oxygen,
    nitrogen and argon are stored in bulk are clearly eligible for grant. If
    instead of being put into tanks, the liquid is put into cylinders which are
    kept on the premises until the gas is wanted, the cylinders are used as
    storage and are in my opinion eligible for grant. Cylinders filled from these
    tanks and those filled directly from the process plant and kept on the
    premises are also used for storage.

    The storage ends when delivery to a customer begins. The Act does not
    say that only plant used solely for storage can qualify. In my opinion
    cylinders used for storage are not disqualified if they are also used for
    delivery.

    A grant may be made towards " approved capital expenditure " incurred
    " in providing new machinery or plant ". " Approved capital expenditure "
    is expenditure which appears to the Board to be of a capital nature and
    which is approved by them for the purposes of the grant (s. 13(1)).

    S. 1(1) says not that the Board shall make a grant if the necessary
    conditions are fulfilled but that the Board may make one. No duty is
    imposed on the Board to make a grant. The Act gives it power to do so
    if it thinks fit. Some argument was directed to the question whether the
    Act gives the Board two discretions, first, to decide whether the expenditure
    is capital and whether to approve it for a grant and, secondly, to decide
    whether to make a grant. I am not sure that discretion is the right word
    to use. As I read the Act Parliament has given the Board power to make
    a grant if it chooses towards capital expenditure it has approved incurred
    on plant or machinery which qualifies under the Act. If the Board has
    approved capital expenditure for the purposes of a grant, it is most unlikely
    that the Board will not exercise its power to make one. However circum-
    stances might arise after approval of the expenditure which would render
    the making of a grunt inadvisable, e.g. a manufacturer going bankrupt or
    a business closing. I see nothing in the Act which prohibits the Board
    from deciding not to make a grant towards expenditure which it has
    approved.

    The first declaration sought by the Appellants is a declaration that the
    pieces of equipment therein mentioned are capable of being approved capital
    expenditure. In my opinion only expenditure on the cylinders is capable
    of being approved.

    The third declaration sought is that if any of the items are approved capital
    expenditure, the Act imposes a duty on the Board to make a grant. In my
    opinion the Act imposes no such duty on the Board. The Board has not
    approved of any of the expenditure on the items in question.

    The Appellants also contend that the Board is not entitled to decline to
    make a grant towards " bulk capital expenditure " on the cylinders " on the
    " sole ground that each cylinder costs less than £25 ". The contention appears
    to be that because the Appellants buy large quantities of cylinders, a grant
    should not be excluded because each cylinder costs less than £25. If this
    contention was well founded, it would follow that grants might be obtainable
    for purchases in bulk but not obtainable by those who purchased the same
    articles in smaller quantities. Parliament cannot have intended any such
    distinction.

    The Appellants also contended that the Board was not entitled to make it
    a rule not to make a grant in respect of an item costing less than £25. They
    found support for this contention in a passage in the judgment of Bankes
    L.J. in R. v. Port of London Authority [1919] 1 KB.176. At p. 184 he said:

    " There are on the one hand cases where a tribunal in the honest
    " exercise of its discretion has adopted a policy, and without refusing
    " to hear an applicant intimates to him what its policy is, and that after
    " hearing him it will in accordance with its policy decide against him,
    " unless there is something exceptional in his case. I think counsel

    9

    " for the applicants would admit that, if the policy has been adopted
    " for reasons which the authority may legitimately entertain, no objection
    " could be taken to such a course. On the other hand there are cases
    " where a tribunal has passed a rule or come to a determination not to
    " hear any application of a particular character by whomsoever made.
    " There is a wide distinction to be drawn between these two classes."

    Bankes L.J. clearly meant that in the latter case there is a refusal to
    exercise the discretion entrusted to the authority or tribunal but the distinction
    between a policy decision and a rule may not be easy to draw. In this
    case it was not challenged that it was within the power of the Board to adopt
    a policy not to make a grant in respect of such an item. That policy might
    equally well be described as a rule. It was both reasonable and right that
    the Board should make known to those interested the policy it was going
    to follow. By doing so fruitless applications involving expense and expendi-
    ture of time might be avoided. The Board says that it has not refused to
    consider any application. It considered the Appellants'. In these circum-
    stances it is not necessary to decide in this case whether, if it had refused
    to consider an application on the ground that it related to an item costing
    less than £25, it would have acted wrongly.

    I must confess that I feel some doubt whether the words used by Bankes
    L.J. in the passage cited above are really applicable to a case of this kind.
    It seems somewhat pointless and a waste of time that the Board should have
    to consider applications which are bound as a result of its policy decision to
    fail. Representations could of course be made that the policy should be
    changed.

    I cannot see any ground on which it could be said that it was ultra vires
    of the Board to decide not to make grants on items costing less than £25 nor
    upon which it could be said to be ultra vires to decide not to make a grant in
    respect of plant used for a dual purpose, one of which qualifies, if in its
    opinion the main purpose of the plant was for making delivery to customers.

    The Act gives no guidance to the Board and nor to the Minister as to
    the policy to be pursued in deciding whether or not to make a grant. It is
    left to the Board to decide how to exercise the power given to it. No doubt
    that exercise will be in accordance with the policy of the Government of
    the day. An annual report has to be made to Parliament (s. 12) and that
    will no doubt reveal the manner in which the power has been used.

    In my opinion this appeal should be dismissed.

    Lord Wilberforce

    My Lords,

    I have had the benefit of reading in advance the opinion of my noble and
    learned friend, Lord Reid. I agree with it and find it unnecessary to add
    any observations of my own.

    Lord Diplock

    My Lords,

    I think that this is a plain and simple case. There is nothing I can usefully
    add to the speech of my noble and learned friend. Lord Reid. I agree with
    it and with the Order that he proposes.

    (307475) Dd. 197055 100 7/70 St.S.


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