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	United Kingdom House of Lords Decisions
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: [1971] AC 610, [1969] 2 WLR 892, [1970] 3 All ER 165, [1970] 3 WLR 488, [1970] UKHL 4

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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.

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