HC Deb 17 October 1950 vol 478 cc1892-8

3.58 p.m.

Mr. J. Enoch Powell (Wolverhampton, South-West)

I beg to move, in page 2, line 1, to leave out from "street" to "with," in line 3.

As the Bill is drawn, the Street Works Code which it enacts excludes from its purview altogether the breaking up of streets, and other interference with streets, in pursuance of railway or tramway undertakings. I realise that the Committee upon whose work this Bill is very largely based were not, by their terms of reference, empowered to consider the breaking up of streets for undertakings of this kind. Nevertheless, I imagine that the Minister will recognise that that type of breaking up of streets can in certain cases raise exactly the same problems as the breaking up of streets for water or electricity undertakings. It is perhaps late in the day for that wider ambit to be covered in the Bill, but I move the Amendment in the hope that the Minister will indicate that he recognises that this is a further sphere in which co-ordination is necessary and give the Committee some indication of how he envisages it will be dealt with.

4.0 p.m.

The Minister of Transport (Mr. Barnes)

If I had thought it necessary to meet this point I should gladly have done so because throughout the Bill we have appreciated the importance of getting everyone interested in the problem to cooperate and that has been the basis upon which the Bill has been constructed. I do not feel that the proposal is necessary because the powers of railway and tramway undertakings to break up streets are inextricably bound up with their general powers, and the existing statutory codes which regulate their powers to break up streets have been shown by very long experience to be entirely satisfactory.

Later I shall be submitting Amendments to cover any outstanding difficulties met by these undertakings, but I have received no requests on this point and I should be loth indeed to re-open the whole problem of the responsibilities of the undertakings in this connection on the hon. Member's Amendment. I trust that, with my statement that, as far as I know, he is not speaking at the request of any of these bodies, he will not press the Amendment because I can see no sound case for the proposal.

Amendment negatived.

The Attorney-General (Sir Hartley Shawcross)

I beg to move, in page 2, line 16, to leave out from "works." to "(including."

This is a drafting Amendment.

Mr. Manningham-Buller (Northants, South)

The right hon. and learned Gentleman says that this is a drafting Amendment, but I am sure he will agree that the re-arranging of the draft has completely altered the interpretation which would otherwise be given to the subsection. I am satisfied that the re-arrangement of the wording carries into effect what was the rather inadequately expressed original intention of the Bill. I am glad that the Minister has tabled this Amendment and the following one, which is consequential, and shown how it is possible to put down two Amendments, differently expressed, to achieve precisely the same object as the Amendments standing in my name and the names of my hon. Friends to the same part of the Clause which has not been called.

The Attorney-General

I was taken a little by surprise. I should have acknowledged our indebtedness to the hon. and learned Gentleman.

Amendment agreed to.

Further Amendment made: In page 2, line 17, after "Crown)," to insert: for any purposes other than road purposes, being works."—[The Attorney-General.]

Mr. Higgs (Bromsgrove)

I beg to move, in page 2, line 29, at the end, to insert: Provided that nothing in this Act shall affect the right of any body or person who is the owner of land on both sides of a highway and of the soil of the whole of the width of the highway to tunnel under or construct a bridge over the highway provided that in so doing there is no interference with or danger of damage to the surface of the highway. The Amendment is the consequence of some doubt felt by me and some others whether what I regard as a perfectly normal and harmless practice on the part of property owners is in any way affected by the Bill. It may well be that we shall receive assurances that the matter has been carefully looked into by experts on the subject of highway law and that the practices which I shall mention are in no way affected by the Bill, in which case shall be answered.

A large department store may carry on its business in two blocks separated by a street. In such a case, they are the owners of land on both sides of the highway and in consequence, in most cases, the owners of the soil of the highway itself, subject to the rights of the public to pass and repass. If they want to tunnel under the street in order to make a passage so that people may pass safely from one building to the other without crossing the street, they are entitled as a matter of law to do so. If it is at an adequate height to prevent obstruction to traffic, they are legally entitled to build a bridge connecting such premises. I have had experience of cases where it has been possible to carry water from a disused coal pit to a factory under a highway because the owners of the factory happened to own the property opposite the factory.

If it should be felt that the Bill in any way interferes with that perfectly proper and harmless right which so often provides people with safe means of crossing the street and aids the smooth flow of business, I should ask the Committee to accept this proviso, but if I am assured that the Bill does not touch it I should not wish to press the Amendment.

The Attorney-General

I am obliged to the hon. Member for the way in which he proposed the Amendment. I hope to be able to satisfy him that it is unneces- sary in order to achieve the purpose he has in mind. The purpose of this part of the Bill is to deal not with any works which in one way or another may have a direct or indirect effect on a highway, but with works by statutory undertakers exercising their statutory powers. That is the net effect of Clause 1. Work done by private owners on their own land, work done by private owners who may own the subsoil on which the road runs, or work done by private owners above the land of the kind mentioned by the hon. Member would not be within the Street Works Code or affected by the Bill. Other laws, including planning by-laws and the common law of nuisance in regard to highways may of course apply but they are not affected by the Bill.

Mr. Higgs

With such an assurance from such a source, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Manningham-Buller

I beg to move, in page 2, line 33, after "court," to insert: over or in which there is a public right of passage.

The Chairman

Perhaps it would be for the convenience of the Committee also to discuss the following Amendment, in line 36, in the name of the hon. Member from Bromsgrove (Mr. Higgs), at the end to insert: But excluding any such road, lane, alley or passage, square or court upon private premises solely for the purpose of the enjoyment of such premises by the occupants thereof.

Mr. Manningham-Buller

I am sure that my hon. Friend will agree with that. Major Milner. The Amendments raise the same point and they are tabled with the object of obtaining an explanation from the right hon. Gentleman. The Bill rather curiously starts with a definition Clause and the penultimate Clause is also a definition Clause, and for the proper consideration of the Bill it sometimes occurs that one has first to look at Clause 1 and then at Clause 37. It is therefore important that, if possible, we should get a clear statement as to the precise position upon this point.

Clause 1 (3) gives a definition of the Word "street" when that word is used in the Bill, and the definition it gives is sufficiently wide not only to include, quite rightly, any highway or other way on which the public have a right of passage but also private ways, private courts, private squares and private passages. One does not use the word "street" in ordinary language as applying to some private passage or place over which the public have not a right of passage. Therefore, I have tabled this Amendment in the hope of getting a clear explanation showing us whether this definition of the word "street" is not so wide as to confer powers on statutory undertakers of doing works on private land unless that private land comes within the category of controlled land, which we shall have an opportunity of discussing later. I should be interested if the right hon. Gentleman could indicate quite clearly, by reference to the specific Clauses of the Bill, if it be the case, as I have been led to suppose it is, that in spite of the wide definition of the word "street" in subsection (3), it is to be interpreted as applying only to land over which there is a public right of way.

Mr. Barnes

I can give the hon. and learned Member a definite assurance that, while the definition of "street" in Clause 1 (3) is in the widest possible terms because it is desirable to pick up every conceivable type of street in which street works could be undertaken, it in no way extends the existing statutory rights of undertakers to break up streets. That, legally, is the position. As far as I am informed, it merely seeks to make quite sure that the definition of "street" for the purposes of the Bill is wide enough to catch all the statutory powers to break up streets so as to afford protection to any one whose interest is affected. If the Amendment were accepted, the owners of streets which are not public rights of passage would be deprived of their essential protection under the Bill. I hope, with that assurance, the hon. and learned Member will not press it.

Mr. John Hay (Henley)

In some ways I do not think the Minister has the point that my hon. and learned Friend had in mind. We are anxious to avoid in this Bill legislating for undertakers having the right to carry out excavations on private land and private property unless that is definitely within the category of controlled; land As the subsection reads. I have the gravest doubt whether what my hon. and learned Friend has in mind is completely covered. Therefore, I should be grateful to hear that the Minister was prepared to look at this again. I do not consider that what he has just told the Committee is the kind of assurance we expected to get, and it is certainly not an assurance which we can regard as satisfactory.

The Attorney-General

May I attempt to help on this? This Clause is designed for the protection of the owners of the land concerned—not to enlarge the rights of breaking-up streets, whether they be streets over which the public have a right of way or streets over which there is no such right of way—in any case where, under their existing powers, undertakers are entitled to break up the streets. The Clause is intended to deal with any case where the owner of a private footway or an alleyway or a passage, although there is no public right of way over them, may be subject, under one or other of the statutes under which the undertakers operate, to have that land broken up.

4.15 p.m.

The effect of the Clause is—and this is why the definition of "street" is as wide as possible—to catch all the cases where undertakers have rights to break up a passage or an alleyway, whether it is a street in the full sense of one over which there is a public right of way, or not. The object is to catch all those cases in order to give the owner of the alleyway or passage concerned the protection and benefit of the Street Works Code.

With one single exception, there is nothing in this Bill which extends the rights to break up land. The exception is the case of laying the pipes or apparatus in the controlled land alongside the street.

Mr. Manningham-Buller

I am sure that my hon. Friends will be, as I am, grateful both to the Minister and to the right hon. and learned Gentleman for the clear and cogent explanations they have given, which are entirely satisfactory. As I understand the position, this definition does not in any sense enlarge the undertakers' powers and there is no question, because of this definition, of the undertakers being able to do something that they have not statutory power to do at the present moment. I understand also that the reason for the Wide definition is to make sure that whatever powers they have got will be caught by the net which is being created by this Bill.

In those circumstances I beg to ask leave to withdraw the Amendment.

Mr. Barnes

I also emphasise that point and, to make doubly sure, I will look into it between now and the Report stage.

Amendment, by leave, withdrawn.

Clause, as amended, ordered to stand part of the Bill.