§ Mr. Powell
I beg to move, in page 9, line 12, to leave out "twenty-two days." and to insert "one month."
§ The Deputy-Chairman (Colonel Sir Charles MacAndrew)
If the Committee is agreeable, I suggest that this Amendment and the next Amendment, in page 9, line 45, might be taken together.
§ Mr. Powell
I agree, Sir Charles.
We have now passed to the subject of controlled land and the period of 22 days to which this Amendment relates is, as stated in subsection (4), a period to run from the day on which the line of the works through controlled land is settled. To understand the reasons which make my hon. Friends and myself anxious about this period of 22 days, and which lead us to regard it as unduly short, it is necessary to get clear the procedure whereby the street authority authorises the laying of apparatus in controlled land. Paragraph 4 of the First Schedule sets out the procedure.
So far as I understand paragraph 4, the authorisation of the street authority to the undertakers comes into force immediately after they have given due notice under that paragraph. The only qualifying word is the word "before" at the beginning of the paragraph. There is no interval of time which must elapse between the giving of the notice and the coming into force of the authorisation, so that, as soon as the notice has been duly given, the undertakers are authorised to go in and do the work on the controlled land subject to the notice of seven or three days laid down in the neat paragraph.
1917 On the other hand, we find that for a period of a month after the giving of that notice it is competent for the owner of the controlled land to object on one of two grounds, or both, to the right of the street authority to make the authorisation. Thus we get the potential state of affairs that for 21 days, that is, a month less seven days, before the last date on which the justice of the authorisation can be controverted street works may have been initiated—they may have been going on for three weeks during the period in which the owner can legally overthrow the right of the street authority to issue the authorisation.
That in itself is bound, sooner or later, to cause difficulty and to give rise to compensation and litigation. But the difficulty is enhanced by this period of 22 days to which the Amendment relates because Clause 5 lays it down that a street authority can only insist upon shifting the works from a street to controlled land if it makes the controlled land available within 22 days, again a lesser period than the month available to the owner for remonstrating and objecting. Therefore, we are bringing further pressure to bear upon the street authority and the undertakers to undertake works in controlled land which may turn out not to be controlled land at all.
I would urge the Government, whether they accept the Amendment in its present form or not, to look very closely both at the 22 days and at the provisions of paragraph 4 of the First Schedule to see whether it is necessary that there should be this overlap, and whether they can make sure, before undertakers begin their works on controlled land, that it is definitely controlled land and that the owner's right to protect and overthrow the authorisation has elapsed.
§ 5.15 p.m.
§ The Attorney-General
This is a somewhat complicated provision. I hope I shall be able to shed some light on it though I feel some doubt about the matter. As the hon. Member for Wolverhampton, South-West (Mr. Powell) appreciates, Clause 5 (1) empowers the highway authority to object to an undertaker's proposal to break up a street on the ground that the works could more suitably be executed in the controlled land alongside the street. But before the high-way 1918 authority takes upon itself the course of objecting in that way they must, with all prudence, satisfy themselves that they will be able to put the undertakers in a position to do the work on the controlled land within, not 21 days from the day on which they object to the work being done on the highway, but within 21 days from the subsequent day on which the plan and section of the works as they would be in the controlled land have been settled and agreed between the undertakers and the authority.
In other words, there are really two stages both of which taken together are bound to occupy a good deal more than 21 days. The first stage is that at which the highway authority is faced by the proposal to do the work in the highway and objects to it; the second is the stage following that objection when the undertaker submits new plans for the works, as he would have to, in the controlled land, and those plans and sections are agreed and settled in negotiations between the highway authority and the undertaker.
The time occupied by those two stages may be a great deal longer than the 22 days from the date of the disapproval under Clause 5 (1) because, as the hon. Member has pointed out, the procedure under the First Schedule has to be followed. The authority has to give notice of its intention to authorise the work in the controlled land and the owner has, as the hon. Member said, a month in which to make his objection. But the period of a month in the procedure under the First Schedule and the period of 21 days in the procedure under Clause 5 are really quite unrelated to each other. They may, in practice, be periods which to some extent run concurrently, but, on the other hand, they may not.
An enlargement of the period under Clause 5 to a month would not in any way affect the owner's right under the First Schedule procedure to a month in which to object. He already has that month under the First Schedule, and, in practice, what will happen—and the whole purpose of this provision is to expedite the procedure as far as possible—is that the highway authority will estimate how long the procedure for authorisation for use of the controlled land is likely to take and how long the procedure for settling the plan and section 1919 of the work in the controlled land is likely to take. If they are wise they will delay settling the plan and section of the work until they are quite sure that 21 days after that period will be sufficient to cover the time required for full operation of the procedure under the First Schedule of the Bill.
If it is clear, knowing, as they will, of the objections which are likely to be raised, if it is apparent that procedure under the First Schedule for securing the use of controlled land will take much longer than three weeks after the settlement of the new set of plans and sections then, no doubt, the highway authority will consider it unwise to object to the works being done in the highway itself in the first instance. They will have to make the best appreciation they can of the time that getting controlled land is likely to occupy, and merely adding 7 days to the period after the approval of plans and sections would really not assist very much at all in this matter.
Having made the best estimate they can of the time likely to be taken by Schedule One procedure, if they do object to work being done in a street and are not able to make the land available within 21 days of the date when the plan has been settled, then, as the hon. Member will observe, under Clause 5 (4) (a), the undertakers can go ahead with their works subject to the fact that if it turns out, eventually, that authority to do the works cannot be given they will have to be taken up, the owner will have to be compensated, and the highway authority will have to pay the undertakers for having authorised them to do works when, in fact, the authority have no power to give such an authorisation.
If, on the other hand, they commence their works in controlled land before receiving authority from the highway authority and that authority is not eventually available, they will be required to take those works out and reinstate the land at their own expense. Two procedures which are, in fact, quite separate may be working concurrently. It does not seem to us that to enlarge the period under Clause 5 by 7 days would be any better than to enlarge it by 70 days. Merely to put down the same period of days in Clause 5 as in the First Schedule would not affect the position at all because 1920 it does not alter the owner's right to object to the procedure that may take place under Schedule One.
I hope that, in the circumstances, the hon. Member will appreciate that the object of the Clause as framed is to secure expedition, as far as may be, on the part of everybody concerned, including the highway authority and the undertakers. The exact period was discussed in detail with all the interested parties and they came to the conclusion that a period of 22 days—I am sorry I have been saying 21 days all the time—was the correct period. That was agreed and, in the circumstances, and, in view of the explanation I have attempted to give in this rather complicated matter, the hon. Member will feel it is unnecessary to press the Amendment and thereby upset the agreement reached.
§ Mr. Hay
The Attorney-General has just told us that this has largely been agreed to between all the interested parties. I do not know where he has had that information, but I think it is highly unlikely that, in these discussions and in the agreement reached, there were any representatives of the owners of controlled land. I am very concerned to know, and perhaps the Attorney-General could tell us, whether or not this period of 22 days is going to be adequate to owners of controlled land—it may be house-owners with front gardens affected—to lodge objections and take the necessary action.
I am concerned about that point because, admirable as the Bill may be in many respects, we must make certain that, if we are going to allow local authorities and statutory undertakers to do work in land belonging to private individuals, those individuals should have every opportunity and safeguard for the exercising and protecting of their legitimate rights. I should be grateful if the Attorney-General could tell us if, in this period under this Clause, there is adequate opportunity for the private individual whose land is concerned in this proposal to make any objections.
§ The Attorney-General
This Clause does not really deal with the right of the owner of controlled land alongside the highway to make objection. That is dealt with under the First Schedule under which he has a month in which to do it. It was thought that was adequate 1921 time to enable him to consult his lawyers, or, if he had not consulted them, to put in an objection for the sake of caution. One has to fix an arbitrary time limit in this matter because it is desirable to secure expedition in regard to it. A month seems fair, and to alter the period in this Clause would not affect that time, which remains as a month in the Schedule.
§ Mr. Powell
While I can assure the Attorney-General that his explanation of the Clause and First Schedule was extremely clear, there are two difficulties still remaining. One is in connection with the action of the street authority under Clause 5, first in objecting and then in the settling of a new line. The Attorney-General repeatedly referred to their estimate of the time required for First Schedule procedure and said no rational street authority would settle the plans until it was sure it could give the authorisations in 23 days, I submit, however, that, in fact, the time required for the operation of First Schedule procedure, as it stands, is really only one day or less because, as soon as notice has been given, the authorisation can be issued. A valid authorisation can be issued immediately notice has been duly served, under paragraph 4. At least I conceive it to be so.
The position may arise, therefore, that a street authority, fully convinced that the area they are thinking about is controlled land and they are perfectly justified in giving authorisation, may neglect to give that authorisation until after settlement of new plans and, eventually, to their surprise, they find that the objection put in by the owner is well founded.
The second point is that I can conceive that procedure in paragraph 4 of the First Schedule is unsatisfactory. It does mean, quite apart from Clause 5, that the statutory undertaker can start laying his apparatus in controlled land three weeks before the date before which the owner can successfully overthrow the authorisation. I appeal to the right hon. and learned Gentleman to look at this whole complex of authorisation again and see whether he cannot solve two difficulties at once by revision of First Schedule procedure which, for example, would give a month's notice before authorisation came into effect, so that no authorisation could come into effect and be subsequently overthrown.
§ The Attorney-General
I will certainly do that, but the hon. Member appreciates that that is quite a different point, which is not covered by the present Amendment. In practice these things would be connected, but legally they are quite distinct. The hon. Member has paragraph 4 of the First Schedule in mind, under which notice has to be given and the owner of the land has a month within which he can object. True, work may commence in the meantime, but, if it turns out that the owner has a valid objection, there has to be reinstatement.
§ Mr. Powell
In view of the right hon. and learned Gentleman's undertaking to look at this, and in view of what has been said, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy-Chairman
The next two Amendments in page 10, line 13, after "undertakers," insert "and", and in line 14, leave out paragraph (b), would appear to be connected with the next Government Amendment.
§ Mr. Manningham-Buller
I am not sure that they are connected, but I think they might be discussed together in order to save time. Perhaps we could hear the Minister's explanation of his Amendment and then discuss my two Amendments.
§ 5.30 p.m.
§ The Attorney-General
I beg to move in page 10, line 17, after "time", to insert:after the authority had purported to authorise the execution thereof in that land and.This is a matter of drafting. Under the Clause as it was drafted the undertaker would be entitled to payment for removing his apparatus from controlled land, even though he had put it there before being authorised to do so. The hon. and learned Member for Northants, South (Mr. Manningham-Buller) was kind enough to draw our attention to this point. It was obviously not intended that an undertaker should be able to engage in an exercise of that kind at the expense of the highway authority. We have, therefore, introduced this Amendment to prevent the undertaker, so to speak, beating the gun and commencing work in the controlled land before the necessary authority has been given to him. He is not entitled to beat the gun and, although disqualified, get possession of the prize money as well. I think that will meet the 1923 point which the hon. and learned Gentleman had in mind, and I think it meets all the points covered by his two Amendments.
§ Mr. Manningham-Buller
You were quite right, Sir Charles. This Amendment does cover the point which I desired to raise and, in fact, it covers it extremely satisfactorily. I am grateful to the right hon. and learned Gentleman for dealing with the point in this manner after it had been drawn to his attention.
§ Amendment agreed to.
§ Clause, as amended, ordered to stand part of the Bill.