71. I am of the view that the wording of Section 8(1) “The lands…shall be laid out and
maintained…for use as a garden open to the public” is to be read as a continuing
obligation to keep the land in use as a public garden. Mr Mould relied on the words
‘in manner herein-after provided’ in section 8(1) (“The lands …shall be laid out and
maintained in manner herein-after provided for use as a garden open to the public”).
He submitted that the words look forward to s.8(8) of the 1900 Act and the
maintenance obligation therein stated (“The Commissioners shall maintain the garden
so laid out and the embankment wall and kerb and railings enclosing it.”). Thus, he
submitted, the statutory objective in s. 8(1) was achieved when Victoria Tower
Gardens was laid out and vested in the Commissioners to maintain. However, in my
judgment, significance is to be attached to the use of ‘maintained’ in Section 8(1).
Section 8(1) lays down the purpose and object of the section whilst subsections (2) –
(8) contain the detail. It is not clear why section 8(1) which sets out the statutory
purpose of the section would need to refer to ‘maintained’ if the word is to read as the
relatively trivial obligation to keep the garden in good repair or tidy. It would suffice
for ‘maintained’ to appear in section 8(8) alone. Further, the language in section 8(8)
is similar to section 8(1) and the latter refers to ‘hereinafter provided’. In my view the
language of both section 8(1) and 8(8) is to the same effect – the land must be laid out
and thereafter kept as a public garden.
72. Mr Mould’s submissions rest on there being a temporal limit to the obligation for the
land to be ‘laid out and maintained’ in section 8(1) of the Act but the words “shall be
laid out and maintained” do not, of themselves, incorporate within them any sort of
time limited expiry date. They suggest the opposite, namely an ongoing obligation
(‘laid out and maintained). There is, for example, no express wording to the effect that
the garden must be kept in good repair, for so long as it remains a garden, which
would have supported Mr Mould’s interpretation.
73. I do not accept sections 8(15)-(18) of the Act merit the significance which Mr Mould
sought to attach to them. He submitted that where Parliament considered it was
regulating the future it said so expressly, as with section 8(17) which makes reference
to ‘subject to the provisions of any future Act of Parliament’. However, in my
judgment sections 8(15)-(18) simply impose controls on works that could be carried
out, or were not the subject of any absolute prohibition. Their existence does not
address the issue of whether sections 8(1) and (8) are to be read as simply requiring a
garden to be laid out which could thereafter be used or built upon as the
Commissioners desired, or as requiring that the land be thereafter kept for use as a
public garden.
74. I accept Mr Mould’s submission that the plain words of s.8(1) of the 1900 Act do not
impose a prohibition on development in the new garden land. He is correct to say that
Section 8(1) is concerned with requiring things to be done but the words create a
statutory purpose, which has the effect of imposing a fetter on activities that conflict
with the statutory purpose.
75. Mr Mould relied on the reference in Section 8(1) to “subject to such byelaws and
regulations as the Commissioner of Works may determine” ( “the land …..shall be
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