C. s. McDONALD

37 specimens were tested to destruction in the U.T.S. test on the "lnstron" machine. The average value was 16,200 p.s.i. A flexural test on a specimen, ~ubjected to pure bending was carried out. Strams were measured by means of electrical resistance strain gauges test was then carried out on this (a direct tensile specimen). An average value of Young's Modulus of 1.02 x JOG p.s.i. was obtained. Poisson's Ratio was found to be 0.330.

(5) Tank tests: (a) Above ground: A series of above ground tests in a testing frame was performed to investigate the behaviour of the tank under controlled known loads. In all cases the hydraulic loads rams were applied connected to through a single three hand operated pump. Electrical resistance strain gauges to the tank with epoxy resin and were used attached to determine strains and hence stresses. Results indicated that due to stiffener rings and, to a much greater extent, the end dishings, the stresses were far lower than the calculated theoretical stresses in an open tube of the same dimensions. (b) Underground: These tests were designed to measure the strains and hence stresses actually occurring in the inner and outer surfaces of the walls of the tank when a vehicle was standing on the earth backfilling over it. A spreader slab was provided at ground level. It consisted of 4ins. bitumen macadam on 9ins. of hardcore. Over 50 strain gauges were attached to the tank and connected to measuring apparatus at ground level. It was possible to measure vertical deformations of the tank by means of a cathetometer. The test tank, thus buried, with 3ft. of earth cover on it, was loaded by means of a 4,000 gallon articulated road vehicle parked over it. Later a 10 ton roller was parked on the spreader slab. No stresses in excess of 450 p.s.i. were recorded, even tank. with a 10 It follows ton roller standing over a full that the earth cover must protect the tank from severe loading by arching. It is apparent that the present system of encasing tanks in concrete is intended to: (i) Contain liquid should a leak occur. (ii) Prevent ingress of ground water to the outside of the tank which would cause metal corrosion. (iii) Prevent uplift of empty or partially filled tank in high water table conditions. A plastic tank as described in the foregoing, which cannot corrode should eliminate the necessity for protection against (i) and (ii). Condition (iii) can be prevented by earth anchors. It can be anticipated that within the next few years it will be common practice to install plastic tanks for gasoline with nothing more complicated than a simple sand backfill to the excavation.

THE LAW RELATING TO LICENCES FOR KEEPING PETROLEUM SPIRIT By C. S. McDonald, M.A. (Oxon.), D.M.A., Senior Assistant Solicitor, Solihull County Borough Council

"For pity is the virtue of the law, and none but tyrants use it cruelly"-Shakespeare. "Nothing is certain in law, except the expense"Samuel Butler.

1. Grandi and Another v. Milburn1 This case was a rare event; it is very infrequently that the High Court is requested to interpret provisions of the Petroleum (Regulation) Acts, 1928 and 1936, and regulations made under them. In view of the frequency with which counsel are consulted by local authorities on such questions of interpretation, I find this rather surprising. This lack of litigation must constitute to some extent a tribute to the diplomacy and ingenuity of the officers

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enforcing the Acts, and to the forbearance and understanding of the general public and the petroleum companies. Personally, I find the ambiguity and uncertainty of some of the provisions somewhat disturbing.

This is not to imply that I regard the decision in Grandi v. Milburn as an unmixed blessing. In effect, Mr. Justice James delivered the Judgement, which resolved into interpretations of the words "kept", "premises" and "conveyance", none of which is defined in the relevant legislation.

I think it vital that there should be a definitive, if not exhaustive, interpretation of the word "kept'7 , as used in the Acts and regulations. The "Concise Oxford Dictionary alone gives 18 different meanings of the verb "to keep". Moreover, as Mr. Justice James said,2 " ••• there is a real danger to be met when one seeks to construe a word in one statute by reference to the construction given to the same word in a different statute dealing with a wholly different subject-matter". It is surprising that the learned judge then immediately proceeded to adopt a course similar to that he warned against, by referring to Lord MacNaghten's observations on the meaning of the words "stored or kept" in Thompson v. Equity Fire Insurance Co.3 ·

In fact, Mr; Justice James decided that petrol in a tanker parked on the forecourt of a shop for four hours, in order that petrol might be sold to the public directly from it, was "kept" there. Choosing to be guided by Lord MacNaghten, he came to this decision because he thought the three essential elements of "keeping" were present in this case. There was an element of considerable quantity -2,500 gallons; an element of duration-four hours, and an element of trade.

It is difficult to see the relevance of the 2,500 gallon capacity of the tanker to this question. Section 1(1) of the Petroleum (Consolidation) Act, 1928, clearly contemplates the "keeping" of petroleum-spirit in small quantities, an exception from the requirement of the subsection is made for particularly small quantities kept in vessels with a maximum capacity of a pint and in an aggregate amount of not more than three gallons. Are we to assume that quantities of spirit of more than three gallons may not be regarded as "kept" within the meaning of the subsection because they are not "of considerable quantity" ?

It is equally difficult to see the relevance of an element of trade. Again, Section 1(1) of the Act of 1928 refers to "petroleum spirit kept either for private use or for sale"; and Regulation 1(1) of the Petroleum-Spirit (Motor Vehicles, etc.) Regulations, 1929, refers to the "keeping and use of petroleum spirit ... not either wholly or partly for the purpose of sale".

The element of duration is a different matter. It appears to be a commonly-held view that a degree of permanence is essential to the notion of "keeping" in this context. In this light the acceptance of a period of four hours may be regarded as a somewhat liberal or illiberal interpretation of "duration" or "permanence", depending on one's side of the fence. Certainly, those who advocate the licensing of commercial spraying booths and the like may still derive some comfort.

I think the element of duration should be of minor significance. It seems to me that there is a logical approach to the problem. The verb "to keep" has at least 18 different meanings; it is reasonable to suppose that Parliament cannot have intended them all to apply in this case; which meaning or meanings, having regard to the clear purpose of the legislation, seem the most appropriate ? I believe that the most appropriate meaning is to "have possession, control or charge of".

The Court in Grandi v. Milburn4 became involved in the question whether spirit could be "kept" and "conveyed" at the same time. It ruled in the affirmative. In my experience, enforcement officers sometimes pose the questioncan spirit be "kept" and "used" at the same time ?-and, in my opinion, once again, the answer should be in the affirmative. In the sense I have put forward, "to keep" is a different kind of verb from "to use" or "to convey"; the two latter describe an operation or activity, the former describes the relationship between the object and the external world. In other words, "kept" does not mean "stored" in this context. I cannot see why, if Parliament had meant "stored", it should not have said so.

The interpretation of the word "premises" is a simpler problem. In everyday language "premises" means "buildings", or, at least, "buildings and surrounding land". In legal language, it means "any land, whether built upon or not, capable of being conveyed or transferred at law". Which meaning should be applied in Section 1 of the Act of 1928 ? I incline to the latter meaning, atlhough this tends to be contrary to the accepted rule of statutory interpretation. I dislike the prospect of a person being entitled to keep many gallons of spirit on an open site in a built-up area with impunity, simply because there are no buildings on his land.

At the moment, the reports of the judgements in Grandi v. Milburn are not helpful on this point. The Times reports Mr. Justice James as saying that "premises" connotes buildings, or buildings on land; the All England Law Reports as saying it connotes land or buildings on land ! In any event, we are now clear that a petrol tanker is not "premises". Were we not always? Not quite, apparently, because in Coleman v. Goldsmith5 a petrol monger's barrow had been regarded as a "place".

In a discussion of the licensing system, it is not really relevant to comment in detail on that part of the judgement concerning the word "conveyance". I agree that, in principle, spirit can be both "kept" and "conveyed" at the same time. I sympathise with the argument of the appellant: for a tanker to be "conveying by road" it must be on a journey. Thus an overnight stop may still be part of the "conveyance"; but is a four-hour stop to sell petrol part of a journey '!

2. The Petroleum Spirit (Motor Vehicles, etc.) Regulations 1929

As, I suspect, do many others I find difficulty in construing these Regulations to my s~tisfaction. My attention was first really drawn to them by the curious fact that many licensing authorities (a) issue licences for car parks in buildings and (b) apply the Regulations to garages in private dwellinghouses, although several counsel have advised against both.

Before turning to the Regulations, I think it is useful to attempt to determine whether the licensing system applies to premises in which are situated vehicles or engines containing spirit in their fuel-tanks. Certainly a

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vehicle parked in premises is "kept" there, and certainly the spirit is "kept" in the vehicles. If vehicles are "kept" on premises, and spirit is "kept" in the vehicles, does it follow that the spirit is "kept" on the premises ? Or is the better argument that it is only the vehicles which are "kept", and not their contents ? I think it is consistent with my view that "kept" is used in the Act in a statusdefining rather than an activity-defining meaning to support the former argument.

Thus, in my view, unless the fuel tank holds less than one pint of spirit, the premises where a vehicle is parked require a licence, unless the Regulations grant exemption. Regulation 1(1) grants an exemption where spirit is kept "by persons intending to use it for the purpose of any motor vehicle, motor boat or aircraft", or of any specified class of engine, "and not wholly or partly for the purpose of sale".

The first point to appreciate is that exemption is only granted where it is the same person who is both keeping the spirit and intending to use it. Clearly, this would normally cover spirit kept in a private garage, but what about a car park ? In that case, clearly the driver of the car intends to use the spirit, but who "keeps" the spirit whilst the car is in the car park, the driver or the proprietor of the car park ? In the usual case, I incline to the view that the driver "keeps" the spirit. He who "keeps" the car, "keeps" the spirit in the tank. One would normally talk of the driver the car in the park, not the proprietor. Therefore I thmk that the ordinary car park is exempt from licensing. In unusual cases, for example long-term airport car parks, it might be proper to talk of the proprietor "keeping" the car, and so I think that in these cases there would be no exemption.

What about cars kept for sale in a showroom with spirit in their tanks ? If the dealer intends to charge the purchaser for the spirit, then there will be no exemption, as the spirit will be kept for the purpose of sale. If he intends to give the the spirit, there will again be no exemption unless he mtcnds to use the spirit, for example, to move the car around the showroom, before sale of the car.

An exemption is usually thought of as conferring a privilege, but it should be appreciated that this is not always the result. Two consequences flow from an exemption under Regulation 1(1): The first is the spirit must be kept in accordance with the Regulat10ns, and it is conceivable that these may be more burdensome than imposed on licence; second is that 1t 1s only persons intendmg to use spmt who may apply for a licence which will exempt them for the exemption !6 This has important consequences. For, if a car park, for is exempted from the system, only the dnvers who intend to use the spmt m the cars can apply for a licence, and not the proprietor. In other words, the proprietor of an ordinary car park cannot obtain a licence, and must see that the Regulations are complied with.

I realise that the foregoing is rank heresy so far as modern practice is concerned, but I would urge readers to read Regulation 1 carefully before passing judgement ! l anticipate that another objection at this stage may be based on a reference to Regulation 6, in particular, which prohibits the keeping of more than 60 gallons of spirit at the same time in any one storage place, including spirit contained in fuel tanks. It may be alleged that, if one adopts the usual practice of assuming that the fuel tank of a car contains, on average, three gallons, and if one accepts my argument that a car park cannot be licensed by the proprietor, this means that no car park must contain more than twenty cars.

But this presupposes that a car park is a storage place. Regulation 14(2) defines "storage place" as including "any room building or place of any kind whatsoever, whether or not in the open air, used or proposed to be used for keeping therein petroleum-spirit for the purposes of any motor vehicle, motor boat, aircraft or engine". This is an inclusive, not an exhaustive, definition. Therefore, one first of all takes the ordinary meaning of the phrase. In the context of the keeping and use of spirit for motor vehicles and the like, I would submit that this ordinary meaning would not include car parks, garages or showrooms. These are storage places for vehicles, not for the spirit which powers them.

Secondly, one attempts to determine how far the definition extends the ordinary meaning. I think the key phrase is, "used or proposed to be used for keeping therein petroleum-spirit". Is an ordinary car park, garage, or showroom used or proposed to be used for keeping spirit therein ? My answer is yes, if spirit is kept or proposed to be kept therein in drums or other containers; no, if spirit will only be kept there in the fuel tanks of vehicles. I contend that a thing can be incidentally "kept" in a place, without that place being "used or proposed to be used keeping" it there. A car park, garage or showroom 1s ordinarily used only for keeping vehicles, not spirit.

Taking this view, I think it is incumbent on me to attempt to explain away the decision in Appleyard v. Bangham. 7 In this case, an old stable had been converted into a garage for three motor cars with dwelling over it. There was no spirit in the garage except m the fuel tanks of the cars, and in a container on one of the cars. It was held that the garage was a "storehouse" within the definition contained in the Regulations made _by the Secretary of State in 1907 under on Highways Act, 1846. The Regulat10ns said _the expression 'storehouse' shall mean any room, bu1ldmg, coachhouse, lean-to or other place in spirit for the purposes of light locomotives motor cars) is kept in pursuance of these regulat10ns ...

It should be noted that this definition was exhaustive, and not inclusive as in the 1929 Regulations. Mr. Justice Scrutton pointed'out that the 1907 Regulations do. the 1929 Regulations) clearly contemplated that SJ?mt might be kept in a storehouse in the fuel tank of a vehicle as well as in separate containers .. He adduced the argument that a motorist "keeps" his can m the garage, and so also "keeps" the contents of his car in the garage. Therefore, spirit in the tank of the car was "kept" in the garage for the purpose of the car and the garage was a "storehouse".

If I may respectfully say so, I agree with the decision. But the vital distinction between the two sets of Regulations is that for a garage to be a "storehouse" it was necessary for spirit to be "kept" there, whereas for it to be a storage place" it must "be used or proposed to be used for keeping" spirit. The 1929 Regulations replace the 1907 Regulations, and, in accordance with the ordinary rules of interpretation, some significance should be

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att~ched if possible to the added words in the new Regulat10ns. It may be argued that the only true distinction is that the new Regulations were framed to deal with future use as well as present use. I cannot accept this. In the first place, a simpler elaboration of the original phraseology wou~d have been "is kept or proposed to be kept". Secondly, rt only makes sense to cover future use if an element of intention or design is to be included; otherwise covering existing situations is quite sufficient. The keeping of the cars themselves, or of spirit in separate containers is intentional or voluntary, but the keeping of spirit in th~ fuel tanks is unintentional, involuntary, or of necessity only.

I think it is pertinent to note the comments of Mr. Justice Ridley in Appleyard v. Bangham on the 1907 Regulations: "I do not think that anyone who framed and drew up these regulations ever thought that they would be applied to the state of circumstances we find here, or intended them to be so ... " Although Mr. Justice Scrutton did not agree with these sentiments, was this a lesson which had been learned by 1929 ?

3. The operation and enforcement of the licensing system

Once again, it is surprising how little decided law there is on this topic. The lawyer is obliged to resort to analogies drawn from established principles of law in similar but more fruitful fields of legal activity, for instance, planning law. However, this is a legitimate pastime for lawyers as it is often indulged in by the courts themselves, as in Grandi v. Milburn.

In section 2 of the Act of 1928, a distinction is made between provisions for duration and renewal (subsection 2) and conditions which may be attached (subsection 3). As section 3(1) refers specifically to conditions, it seems to me that no appeal lies to the Horne Secretary if an applicant is dissatisfied with the provisions for duration and renewal. If, for example, he thinks that the period of the licence is too short, his only remedy would appear to be to fail to apply for a new one, and to hope that the magistrates will sympathise and give him a discharge if prosecuted for keeping without a licence.

Nevertheless, authorities should take care in framing provisions for renewal. I have known such a provision to be so framed that it has at least been arguable that, when the old licence expired, if the applicant had observed the old conditions, the authority had no option but to issue him a fresh licence with the same conditions, even though they wished to impose fresh conditions.

Conditions must relate to the storage, premises, facilities for testing, or safe-keeping of the spirit. On general principles, it may be that a condition which does not relate to one of these items, or which does so relate but is unreasonable, may be legally invalid and unenforceable although there has been no appeal to the Home Secretary. For instance, magistrates may rule that a condition is invalid if there is a prosecution before them. It may be that a condition would be regarded as unreasonable and therefore invalid if, although it related to one of the matters mentioned above, it referred to premises other than those occupied by the applicant. If an authority felt the regulation of such other premises were required, the only proper course might be for it to defer or refuse the application.

If a condition is invalid, does this render the licence invalid ? In planning law, there has been an attempt to say that it depends on whether the authority would have granted the permission if it had known at that time that it could not impose the invalid condition. This involves the body pronouncing upon validity trying to put itself in the place of the authority. I think the law should be that the licence is invalid in all cases, and the authority should be compelled, if necessary, to re-consider the application.

As the right of appeal to the Home Secretary against the refusal of, or the conditions contained in a licence is c~st in very general terms, it seems clear th;t appeals to h~m T?ay be on matters of fact, law or policy or any combmat10n of the three. This is not to say that the Horne Secretary need necessarily be the final arbiter in law. ~ dissatisfied applicant has only ten days (or such further t!me as the Secretary may allow) after receipt of the certifi~ate of the grounds of the authority's decision within wh!ch to a~peal, but I have already mentioned the way in which magistrates may become involved, and moreover the Act does not state that the decision of the Home Secret_ary shall be. final and binding. It seems likely that the High Court might become involved in one of the three ways-by a_n appeal from a decision of the magistrates; by a~ apphcat10n. for a declaration, injunction or prerogative order against the local authority by a dissatisfied applicant who ignores his right of appeal to the Home Secretary; or by a similar action against the Home Secretary as a result of his conduct of an appeal.

Ass~rning _that the. local authority is not at fault, the remedies available to rt against breakers of the law are not excessive. There is no power to revoke a licence; but there should always be a provision in a licence that the right is reseryed to refuse to renew it if a condition is broken by the licensee: To the best of my knowledge, it has never been established whether "mens rea" is essential to an offence 1;1n?er Section 1(2) of the Act-in other words, whether 1t is necessary to prove that the occupier knew or ough~ to have known .t~at spirit was being kept on his pr~m~ses or.th.at a condition was being broken. On general pnnc1ples, 1t 1s probable that it is so necessary.

This leads to anot~er difficulty, which is that it may not alw~ys be the occupier who is morally responsbile for, in particular, a breach of some condition in the licence. An employee who contravenes a condition set out in a notice post~d in acc_ordance .with section 2(4) can be prosecuted m his own nght, as rt were, but otherwise the culpable pers~n can only be prosecuted, if at all, for aiding and abet!mg an ~ff~nce by ~he occupier or employee. To obtam a conv1ct10n. for aiding and abetting, it is necessary to prove that the aider and abetter knew all the circumstanc~s of the ?f:fen~e, including the fact that he was b~eakmg a cond1t1on 1n_ the occupier's licence. The occupier may have been entirely ignorant of the circumstances of the breach, and the law is now in a state of some con~usion as to when the knowledge of an employee can be imputed to the master. It is also doubtful whether an aider and abetter can be convicted without an offence by the

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