§ (1) The powers conferred by the Public Health (Scotland) Act, 1897, upon a local authority under that Act, enabling such local authority to carry sewers within their district, may be exercised by any body of trustees or commissioners authorised to supply water by any local Act, within the limits of water supply under such Act, in the same way and subject to the like restrictions in relation to water mains as they may be exercised in relation to sewers under the said first-mentioned Act by the local authority within the district of such authority.769
§ (2) Nothing herein contained shall be construed as exempting such trustees or commissioners from the provisions of the Water Works Clauses Act, 1847, with respect to the breaking up of streets for the purpose of laying pipes, excepting the provisions of Section twenty-nine of that Act, and subject to this exception the said provisions are hereby incorporated with this Act.
§ (3) In this Section the expression "local Act" includes a Provisional Order and the Act confirming such Order.
§ Sir F. BANBURY
I beg to move, in Sub-section (1), after the words "Public Health (Scotland) Act, 1897," to insert the words "except under the provisions of Section 109 of that Act."
This first Sub-section of Clause 1 confers on any body of trustees or commissioners authorised to supply water by a local Act the same powers as are conferred on a local authority under the Public Health (Scotland) Act (1897). I have looked up that Act, and I find that a clause in it gives power of entry in case it should become necessary to examine or lay open pipes, watercourses, and drains, and should the owner or occupier refuse or withhold access to the land for such purpose, the local authority may, after due notice, apply to the sheriff, who, if no sufficient cause is shown to the contrary, shall grant a warrant to the local authority or its officers to enter on the land. It may be a very reasonable thing to have inserted in the Bill a provision giving a local authority, dealing with such questions as sewers, this power; but if you are going to give power to any body of trustees or commissioners to do these things it ought not to be granted as against the wish of the private individual. It is very evident that some such power as this is necessary in regard to sewers, but it may not be absolutely necessary to carry a water main over the land of a private individual, and it might cause a considerable amount of inconvenience to such an individual if this Clause were retained in the Bill. I think it is rather too drastic a proposal, which certainly ought not to be embodied in a general Act of this sort, and I therefore beg to move the insertion of these words.
§ Mr. URE
I really cannot consent to the Amendment of the hon. Baronet. The 770 House will see that the object of this Bill is to give statutory commissioners power within their own district to lay and carry water pipes in exactly the same way as a local authority has power within its district, under the Public Health Act to lay and carry sewers. What the hon. Baronet says is this: if in the course of laying their pipes the water commissioners require to go through private property, and to lay pipes therein, they should be stopped until they receive the consent of the private owner; that is to say, the private owner will be able to put his foot down and stop the work for some reason of his own, or indeed for no reason at all. I understand the hon. Baronet to say that if this provision is struck out of the Bill he has no objection whatever to the water commissioners having the same power as local authorities have in regard to sewers. But this is the crux of the whole Bill, and it is just because water commissioners find it difficult to prosecute their undertakings in the ordinary way, that this Bill was brought in in order to give them exactly the same powers as the local authorities have, and the hon. Baronet will find further that local authorities have the same powers with regard to water pipes as they had with regard to sewer pipes in districts outside burghs. Under the Statute of 1897 he will find further that by Clause 103 we have provided that a local authority may positively go on any lands whatsoever to lay their pipes. They may go upon any lands on which they please to lay their pipes if they have a report and a survey showing that it is necessary. I think the phrase in the Act is "any lands whatsoever," and they may go on the report of an engineer that it is necessary to do so in order to lay their sewers. By another statute they are allowed to do the very same thing in districts outside boroughs with regard to their water pipes. As I understand the hon. Baronet's contention, what he objects to is the exception which is introduced in this Bill of Clause 29 of the Waterworks Clauses Act of 1847. He says he wants Clause 29 of the Waterworks Clauses Act of 1847 introduced. That is a Clause which says you shall not go upon private property without the leave of the proprietor, and if you do an action arises and it gives the private proprietor the right to stop public works unless you get his leave to construct them. The reason why we except Clause 29 is that there should be no dispute or difficulty raised between the local authority and the proprietor. I 771 did not think it was necessary to include Clause 29 because, as I pointed out, Clause 103 of the Act of 1897 gives the power, and the hon. Baronet will find that the Act, under Clause 32, incorporates the Waterworks Clauses Act, in so far as it is not inconsistent with the Statute of 1897. Clause 29 is inconsistent with the Statute of 1897, which gives an absolute right without asking leave from the proprietor to go upon land. Therefore I can assure the hon. Baronet that his Amendment will not be effective, and it is only to prevent litigation and prevent any question being raised that we have provided for the exception of Clause 29.
§ Sir F. BANBURY
The right hon. and learned Gentleman has correctly gauged the object I had in view. I had intended to move that Clause 29 of the Act of 1847 should be maintained, but I thought that if I entered upon that without moving this provision in the earlier part of the Bill the Lord Advocate might have said that I ought to have moved earlier in the Bill because of the provision of the Act of 1897 which had already been incorporated. It is for that reason that I moved to insert this particular Amendment at this particular stage. I have looked at the Clause the Lord Advocate referred me to and I find it is as folows:—
"The following Acts and parts of Acts so far as the same respectively are applicable to the purpose and are not inconsistent with the provisions of this Act are hereby incorporated in this Act."
Section 29 of the Act of 1847 is not repealed, and it seems to me to be a good Section, especially as this particular Bill does not relate to municipalities, but to trustees or commissioners who may be authorised to supply water under any local Act, and it seems to me that if you are going to give special powers under special circumstances to these trustees or commissioners to enter upon the land of private people we should consider the matter and give those special powers in a special Act and not pass a general Act. People do not act as a rule in a dog-in-the-manger way unless there is some reason for it, and they would probably not object without some good reason. Then, if they found there was someone who was objecting in a selfish kind of manner, and not for a sufficiently good reason, they could always obtain an Act of Parliament. It may be argued that that would cost 772 money. After all, the rights of private property should be placed above questions of cost in my opinion, and I am glad to say that earlier in the day we had a somewhat identical expression of opinion from an hon. Gentleman opposite. I object very much to giving all these different authorities—I do not much like it in the case of municipal authorities, but these are not municipal authorities—power to enter on anyone's property to do what may seem good in their eyes. The right hon. Gentleman has rather omitted to recognise the fact that this Bill does not confer power - upon local authorities. Unless I am very much mistaken all these private local Acts in Scotland are carried out by a special Committee of this House, and, therefore, the expense is very much minimised. If the trustees or commissioners desired to do something of this sort and were prevented it would be very much better if they had an Act of Parliament enabling them to do so when all the circumstances of the case might be considered. I hope the right hon. Gentleman will consent to these words being inserted.
§ Sir F. BANBURY
We learn a little as we go on. I understand this particular part was not in the Bill as originally introduced, but was put in in Committee. That is a very excellent reason why this House should reverse the decision of the Grand Committee and that the Bill should revert to its original form.
§ Amendment negatived.
§ Sir F. BANBURY
I beg to move, in Sub-section (2), to leave out the words "excepting the provisions of Section twenty-nine of that Act."
As I have been so considerate of the right hon. Gentleman's feelings, I hope he will meet me now. I have already given a reason why I desire to leave these words out, but I will mention one or two more which I believe will convince the House that it is necessary to leave these provisions in. The right hon. Gentleman admits that under the Act of 1897 these particular provisions were not repealed. If it was not considered necessary to repeal them then, why should we repeal them now? If we incorporate the Act of 1897 and do not make any alteration, which I have agreed not to do, why should we not incorporate the Act as it was passed? If we strike out these words we 773 shall not be incorporating the Act in its original form, and therefore I hope for the reasons which the right hon. Gentleman has stated, that he wishes to have the Act of 1897 incorporated in the Bill, he will incorporate it in the manner in which it was passed.
§ Mr. URE
I cannot consent to this Amendment for the reason I gave on the hon. Baronet's former Amendment. I do not think that anyone on this side of the House could entertain the view that any proprietor should be in the position of denying to a public authority the right to make surveys in the way proposed. I can assure the House that the interests of proprietors ace most carefully safeguarded.
§ Sir F. BANBURY
I think Section 109 of the Act of 1897 does, to a certain extent, safeguard the interests of the private individual, because under that Clause it will be necessary for the Commissioners or trustees to obtain a warrant from the sheriff before they can do certain acts, but I would point out to the right hon. and learned Gentleman that Section 103 enables the local authority, after reasonable notice in writing, to obtain surveys which may be necessary. [An HON. MEMBER: "Hear, hear."] Yes, but what is the use of Section 103? Sections 103 and 109 seem to contradict each other. May I ask the Lord Advocate to say whether I am correct?
§ Sir F. BANBURY
I am much obliged to the hon. Member. I think that this does make a material alteration in the matter. I am sorry that Section 29 had to go out, as I think it would have been better, but, still, I admit that the Clause which has just been referred to has some preservative effect, and therefore I will not press my Amendment.
§ Amendment, by leave, withdrawn.
§ Bill read the third time, and passed.774
§ ADJOURNMENT.—Resolved, '' that this House now adjourn."—[Mr. Gulland.]
§ Adjourned accordingly, at Twenty - seven minutes after Four o'clock, until Monday next, 3rd July.