A local authority shall so exercise their powers under sections 2 and 5 of this Act as not to create a nuisance.—[Mr. Graham Page.]
§ Brought up, and read the First time.
§ 11.27 a.m.
§ Mr. Graham Page (Crosby)
I beg to move, That the Clause be read a Second time.
Clause 12(1) of the Bill as it stands has a bearing on my proposed new Clause. Under Clause 12(1) nothing in the Bill is to give a local authority power to do any act or omission which would be actionable at the suit of any person. There is a particular kind of wrong or tort which is not necessarily actionable at the suit of an individual, and that is the wrong of nuisance, and it is particularly likely to occur under the powers given to local authorities by the Bill.
In Clause 2, for example, local authorities are given considerable powers to develop land, to erect buildings and to carry out works, and under Clause 5 they are given powers to erect garages, construct hard standings or convert buildings into garages. For example, under Clause 2 a local authority might be constructing or carrying out work on land—demolition work, perhaps, or pile driving. These are the sort of operations which are likely to cause a nuisance to neighbouring land. But the only person who is entitled to take action in the case of such a nuisance is the person who is in possession of the adjoining land.
Those of us who went through the schoolboy stage of learning our law will recollect the case of Malone v. Laskey, where a lavatory cistern fell on the head of the wife of the tenant of the house by reason of the vibrations from an engine on neighbouring land, and the wife, not being in possession of the house, had no claim against the neighbour. There was undoubtedly a 812 nuisance there, but in law it was not actionable at the suit of the wife, the person who was injured.
Clause 5, where the local authority is given power to make hard standings for vehicles, is in no way restricted to land off the highway. As I read the Clause, it would be possible for a local authority to set up parking places on the road, which might be an obstruction of the highway or a danger to traffic. If so, it is a public nuisance, but no action would lie at the suit of a person, unless that person could show special damage or particular damage suffered by himself, that is if there is a public nuisance.
If there is damage to the public at large, it is actionable by an individual only if he can show that he has suffered some additional damage to that suffered by the public at large. If his injury is of the same kind as that suffered by the general public, he is unable to take action. Therefore, nuisances of that type do not come into Clause 12(1), which is restricted to forbidding a local authority to do an act or omission which is actionable at the suit of a person. By implication, a local authority seems to be allowed to commit a public nuisance, or even a private nuisance, which is actionable only by a person in possession of land.
By this new Clause I wanted to make it quite certain that the Bill was not authorising local authorities to commit or create a nuisance.
§ Sir Godfrey Nicholson (Farnham)
I find myself at a disadvantage in debating with my hon. Friend the Member for Crosby (Mr. Graham Page), because I am not a lawyer and I have no legal training. I can rely only upon the expert advice which I am given. My advice is that this new Clause is unnecessary because the Bill gives no power to local authorities to create a nuisance. I do not rely entirely upon Clause 12(1) which, of course, is a part of the case, but upon the plain fact that no power is given to local authorities to create a nuisance or to enable them to override statutory provisions or common law relating to a nuisance. Therefore, I think that the new Clause is completely unnecessary, and I hope that my hon. Friend will withdraw it.
§ Dr. Alan Glyn (Clapham)
I am a little muddled about the arguments on this new Clause. I am sure that we are all most anxious to see that any powers which we are giving under the Bill are used correctly and that local authorities in general do not create nuisances, such as have been suggested by my hon. Friend the Member for Crosby (Mr. Graham Page).
Like my hon. Friend the Member for Farnham (Sir G. Nicholson), I cannot see how this new Clause is necessary. I should have thought that if there was a general nuisance, the public could take action, and that if it was a private nuisance—and here I concede that it is possible for a nuisance to be caused to adjoining owners—they would have an automatic right of action if they are adjoining owners and suffer damage.
What I did not understand in the statement of my hon. Friend when he moved the new Clause was that I think he said that it would cover the case where the adjoining owner, particularly in the case of a car park or something of that nature, was suffering only the same damage as the public. If the adjoining owner is given additional power to cover the nuisance or annoyance he is caused by the erection by a local authority of certain works, I think that it would be worth including this new Clause in the Bill. It often happens that local authorities are not conscious, particularly in the case of garages, of the noise and fumes which can possibly depreciate the value of local owners' property, and, indeed, cause a very general nuisance.
On the other hand, the nuisance that I have in mind may be the type of nuisance which my hon. Friend the Member for Crosby mentioned, where perhaps local property owners are inconvenienced more than the general public by their having to live there all the time and suffer nuisance all the time. It might be that under the existing law the nuisance that they are suffering is the same as that suffered by the public, yet to them it might be more injurious because they are immediately adjacent to it.
If that is the case, I would suggest that this new Clause is reasonable. It does not in any way take powers from the local authorities, and if it would make them perhaps additionally more careful of what they do, it is merited.
§ Mr. James MacColl (Widnes)
The point that I want to make is technical and a matter of construction. I should have thought that we were all agreed about what we should do—that is, that the local authority should be in the same position as the private developer, neither more nor less inhibited in respect of these powers. Therefore, it is a question whether the effect of the Bill without the proposed new Clause meets that object. I do not think that local authorities spend their time dropping lavatory cisterns on people. They are responsible bodies and normally use their land in a responsible and sensible way, more so probably than other people because they are publicly accountable and open to public criticism in council and so on. Therefore, I should have thought that there is no case for putting in a new Clause saying that a local authority must not do anything which would make it liable for a public nuisance because the remedy of a public nuisance would be available against it as against a private individual.
What rather worries me is having Clause 12(1) in the Bill, on the general principle that if we put something in the Bill we exclude other things. If we say that a local authority, apart from Clause 12(1), can be put in a different position from a private person in regard to ordinary actions and that without this Clause that would be the position, does not that leave as a possible interpretation of the Bill that where no exception is made of public nuisance the position is different. I do not know whether the hon. Gentleman has got my point but, if not, I will try again.
§ The Joint Parliamentary Secretary to the Ministry of Housing and Local Government (Mr. F. V. Corfield)
With due respect to my hon. Friend the Member for Crosby (Mr. Graham Page), I think that the weakness of his argument is to read the word "person" literally and not in its legal interpretation as including the plural and people who are at the same time holding an office and can operate by virtue of that office. I have in mind my right hon. and learned Friend the Attorney-General. The ordinary public nuisance legislation and common law rules can be enforced at the initiative of the Attorney-General.
815 I am advised, and I would certainly accept it from my own reading of the provision, that the Attorney-General is covered by the word "person". I cannot see any good reason for believing that he is not. I cannot think of any form of nuisance, using the word in its legal sense, whether public or private, that cannot give rise to an action by an individual or by a person in this broader sense.
I do not think that my hon. Friend has made out a case where that occurs. I did not take an exact note, but I think that the case he referred to, in which a person was denied an action because she was not the owner of the house, seemed a matter in contract rather than in tort. But perhaps I might get some support from the hon. Member for Islington, East (Mr. Fletcher) on this.
§ Mr. Eric Fletcher (Islington, East) indicated dissent.
§ Mr. Corfield
I thought I saw the hon. Member nod. I cannot see that this Clause can possibly exclude a nuisance as we know it on the ground that there is no person in that particular sense who can initiate an action.
The hon. Member for Widnes (Mr. MacColl) made the point that if we left in Clause 12 (1) the inference would be that local authorities could do anything not covered in that subsection. I am sure that that is not so. He will probably remember that, in Committee, the argument for inserting that subsection was that it was desirable to make absolutely certain of the position where any of the possibilities under any of the provisions of the Bill—I think that we were concerned almost solely with Clause 2 in that argument—cut across certain other statutory provisions.
There are statutory provisions, I believe, controlling slaughterhouses, for instance. It might be within the powers of this Bill for a local authority to erect a slaughterhouse, and we wanted to make it absolutely clear that the Bill would not mean that it could do so without taking into account the provisions of other Acts on the control of erection of slaughterhouses. This was what we had in mind. I am completely satisfied, from the advice I have received, that the Bill achieves this now, and that the insertion of Clause 12 (1) 816 does not have a narrowing effect in the sense that it may be argued that, because it is there, nothing outside it is very important.
I suggest also that, on the ground of general principle, my hon. Friend is putting forward a fairly dangerous argument, because the logic of it is that, under practically every public Bill which does not contain a specific Clause of this nature, local authorities are free to go around creating nuisances. I do not believe that it has ever been held to be the interpretation of an Act conferring powers on local authorities that, unless nuisance is expressly excluded, they are entitled to do it. That appears to be sense, and I am advised that it is the position.
My advice is strongly that the Clause is not necessary and that it might cast doubt on a wider principle and give rise to suggestions that other Acts conferring powers on local authorities give them some power to create nuisance because this provision has been inserted in this Bill and not elsewhere. I therefore advise the House not to accept the new Clause.
§ Dr. Alan Glyn
If this new Clause were accepted, how much difficulty would local authorities have? Does not my hon. Friend the Joint Parliamentary Secretary consider that, with these wider powers which are being conferred, it would be advisable possibly to have this additional restriction, provided that it does not operate unreasonably and unfairly against local authorities?
§ Mr. Corfield
It will not make the slightest difference to the use of the powers conferred by this Bill by the local authorities. My contention, and my advice, is that, under the terms of the Bill as it stands, they are in no way permitted to create nuisances anyhow, and that putting this new Clause in would not be increasing the burden on them. But my objection to the Clause is that it is not necessary, that it might tend to give rise in the courts to the suggestion that, because it was put into this Bill, one has to look at other Acts conferring powers on local authorities, and that, where those Acts do not contain this kind of provision, there would be a danger of the presumption arising that perhaps there is a difference, which it is certainly not our intention to create.
§ 11.45 a.m.
§ Mr. Fletcher
Since the Joint Parliamentary Secretary referred to me just now, perhaps I may say something about this. I agree substantially with everything he said. In my opinion, for what it is worth, the law as he expressed it is exactly correct. That being so, I take the view that this new Clause is not only unnecessary but, because it is unnecessary, that it is undesirable. It is a great mistake to put a provision into a Measure which is not necessary, particularly when, by putting it in, one exposes Parliament to the suggestion that its omission from other Acts creates some effect which would be undesirable.
Surely the law of the land is quite clear. Local authorities are created by Acts of Parliament. They are juristic persons. What they can or cannot do is limited by Acts of Parliament constituting them, and that is why, from time to time, Parliament has to confer special and additional powers on local authorities. They can only do things for which they have statutory authority. Other things ultra vires the local authority cannot be done.
Therefore, on every occasion when Parliament desires to give a local authority some new power which it has not had before, a specific Act of Parliament must be passed. But surely it has never been suggested that, because Parliament gives powers to local authorities, that entitles them to create nuisances. As I understand it, in the discharge of their statutory duties, local authorities, like any other subjects of Her Majesty, are subject to common law obligations and are exposable and exposed to any acts of action for damages or otherwise if they invade the rights of other persons.
The Joint Parliamentary Secretary said that there is a difference between action for nuisance and other actions for tort. That may be so. It may be that actions for nuisance are in a special category and that in some cases an action for a nuisance cannot be brought by one or more individuals except in the name of and by the relation of the Attorney-General. I should have thought it perfectly plain that in the sort of action contemplated by the hon. Member for Crosby (Mr. Graham Page), the words of Clause 12(1) are quite 818 sufficient already. It says that nothing in any provision in Clause 2 or 5…shall be construed as authorising on the part of a local authority any act or omission which, apart from that provision, would be actionable at the suit of any person…That would cover actions brought in the name of the Attorney-General for nuisance of the kind contemplated by the new Clause. For this reason, I hope that the House will reject the Clause.
§ Mr. David Renton (Huntingdonshire)
It may well be that my hon. Friend the Joint Parliamentary Secretary is right about this, but there is one point I should be grateful if he would consider. It is a practical point which I am prompted to make by the recollection of some actions for nuisance in the past.
I remember one case in particular—I think that it is reported—in about the middle of the 1930s, when one of the London hotels sued the proprietors of a West End garage in an action for nuisance. An injunction was eventually obtained and substantial damages were awarded before the matter was finally settled by undertakings being given in relation to the use of the garage in future.
Under Clause 5, a local authority is to be allowed to operate and to manage garages containing a number of vehicles. In future, in this motorised age, that could mean a very large garage containing many vehicles. For example, if a local authority is building a huge block of flats and knows that most of the occupants will want to have somewhere to put the cars, it may build a very large garage. It is conceivable that the local authority could be sued in nuisance for the way in which it operated and managed that garage.
The point which arises, and I should be grateful if my hon. Friend would address his mind to it, is whether, if the local authority were sued in those circumstances, it could plead as a defence that it had built the garage under statutory powers and was operating the garage under statutory powers. I hope that that would not be a valid defence and it may well be that my hon. Friend the Parliamentary Secretary is right about it and it may well be that the hon. Member for Islington, East (Mr. Fletcher) is right when he says that 819 Clause 12(1) would prevent that defence from arising. But the Clause does not specifically say so and I therefore think that my hon. Friend the Member for Crosby (Mr. Graham Page) is entitled to be assured by the Parliamentary Secretary on that point.
§ Mr. Corfield
By leave of the House; as I recollect the law to which my right hon. and learned Friend the Member for Huntingdonshire (Mr. Renton) has referred, I understand, and I am certainly strongly advised to this effect, that in this sort of circumstance there is no defence that the statutory powers confer a right to operate the undertaking, whether it be a garage or anything else, in such a way as to cause a nuisance. As I recollect it, this sort of defence arises only when there is a specific statutory power to carry out an undertaking which in itself is a nuisance. Then there is the implied right, but in this case that does not arise.
§ Mr. Fletcher
It arises when it cannot be carried out otherwise than by the creation of a nuisance.
§ Mr. Corfield
The point I was making was that only when the enterprise itself was inherently a nuisance, however carried out, is there a defence of this nature. I can assure my right hon. and learned Friend that my advice is very strongly to this effect, as well as my own recollection.
§ Mr. Graham Page
I accept the Parliamentary Secretary's interpretation of the word "person" as meaning the Attorney-General, who could take action in the case of public nuisance. I hope that the courts will appreciate it in the same way and I therefore beg to ask leave to withdraw the new Clause.
§ Motion and Clause, by leave, withdrawn.