HC Deb 10 April 1968 vol 762 cc1453-7
Mr. George Willis (Edinburgh, East)

1 beg to move, Amendment No. 1, in page 1, line 17, after ' points ', insert ' in relation to the curtilage'.

We had a long debate in Committee on the very sweeping character of the powers contained in Clause 1. In particular, a point was raised about the lack of definition and the consequent doubts as to the great expenditures which might be placed upon local authorities. We cannot cover all that again but, since then, I have received further representations on the Clause relating to the lack of definition in subsection (2). Perhaps I might read an extract from them: Clause 1 (2) requires local authorities to tike sewers to points where owners of premises can connect their drains to them at reasonable cost to themselves. This replaces the former requirement (Public Health (Scotland) Act, 1897, Section 120) for owners to connect to sewers where these were within 100 yards of the premises. This is undoubtedly an improvement but I feel suffers from lack of definition and it would be better to specify a distance to the curtilage of a building. I suggest specifying the distance to the curtilage rather than to the building itself (as in the Public Health Act, 1936, Section 37, applicable to England and Wales) since the siting of a binding within a feu is a matter often determined by the building owner without reference to the local authority. The representations go on to suggest that, if it was to the curtilage, the distance could be reduced from the figure o' 100 feet referred to in the English Act to 50 feet.

I do not want to argue about what the distance should be. All that I suggest is that, if local authorities took their public sewers to such point or points in relation to the curtilage of the building, it would be preferable to the way in which the subsection is worded at present. It would be more specific, especially as the representations point out that since the siting of a building within a feu is a matter often determined by the building owner without reference to the local authority, the distance could be quite considerable and a local authority could be called upon to incur considerable expenditure in bringing a sewer within a reasonable distance, whatever "reasonable" might mean, of the building rather than to the curtilage of the building. In this way, a local authority would have a much clearer idea of what the Government envisage in the Clause. At the same time, local authorities would be safeguarded against excessive expenditures.

I do not wish to carry on the debate unduly, but when my hon. Friend comes to reply, I think that he ought to give us an indication of whether the subsection means that public sewers shall be taken to such point or points in relation to the building itself so as to enable the owners of premises to be served to connect their drains or private sewers at reasonable cost, or whether the Government have in mind that public sewers should be taken to a point at a reasonable distance from the curtilage.

There is a big distinction here, and it is one which might involve local authorities in a fair amount of expenditure. It would be an improvement if something could be put into the subsection along the lines of the Amendment to make the point clear when the Bill goes to another place.

The Under-Secretary of State for Scotland (Mr. Norman Buchan)

In the first place, I am not altogether clear that the words suggested by my right hon. Friend will of themselves bring about the point that he wants to make clear.

Local authorities are already required to take public sewers to a point or points at which the owner of premises will be able to connect his drain at reasonable cost to himself. The test of reciprocal reasonable cost, embodied in subsections (2) and (3), will determine the point to which the sewer must be taken. It might be the boundary of the curtilage of the premises. It might be some distance outside the boundary. In exceptional circumstances, it might even be inside the boundary of the curtilage.

I am not sure that the words chosen, "in relation to the curtilage" achieve the desired effect. Even if they do, I am not sure that I can accept the intention of the Amendment. In Committee, we discussed the reasons for drafting the Clause as we have and we rejected attempts to limit or define more closely the duty of local authorities under the Clause. The test of practicability at reasonable cost is the only one which fits the great variety of circumstances likely to be encountered by local authorities. In this respect it does not seem to me that it is an entirely feasible alternative and, therefore, I cannot accept the Amendment.

6.30 p.m.

Mr. James Dempsey (Coatbridge and Airdrie)

While I appreciate my hon. Friend's argument on "reasonable costs" I have yet to find, by and large, anybody willing to define what the word "reasonable" means in the sense of costs. The difficulty of interpretation has caused considerable difficulties to local authorities and increased rate burdens from time to time. My right hon. Friend the Member for Edinburgh, East (Mr. Willis) is perfectly practical and sound in his attitude in feeling that there should be some reference to the curtilage of the feu. It is all very well to say that the sewer shall be taken to a point which may be suitable for a private owner to connect, but in view of the speculative building that is taking place in some parts of the country, where a local authority is to be called on to take the sewer within reasonable proximity to a building, that could easily mean crossing a great distance over a feu. In fact, that is what is happening at the present time.

In the case of the house of an agricultural worker the curtilage of the feu can be 100 yards away from the building, and simply because his building is situated in a very large tract of land this provision in this Clause could mean that in circumstances similar to those to which I have referred, a local authority could be compelled to carry public services such as sewers over long distances to bring them within close proximity to a building, with the consequence that a large amount of piping would have to be provided, installed and maintained at the expense of the ratepayers, for the benefit of people who may be well able to meet the cost themselves.

I myself served for some years on the drainage committee of one of the largest counties in Scotland and I know what can be involved unless there is a clear declaration of intent that the services should be taken to within the curtilage of a particular area as compared with the factor of reasonable cost. I recognise the difficulty of my hon. Friend. No doubt, he has a brief which he has studied and he is convinced that this is a sensible attitude to adopt. But it is not as simple or as easy as that. It would be much better to define the situation in the words of the Amendment so ably moved by my hon. Friend the Member for Edinburgh, East. In moving this Amendment he seeks to be precise. That is what is wrong with this Bill. There is not sufficient precision in order to protect local authorities and ratepayers, for "reasonable cost" is a very unwieldy term and one could drive a cart and horse through any interpretation of it. My hon. Friend should study some of the cases which have appeared in Scottish courts from time to time, when he would be shocked at our judges' decisions on interpretations of the word "reasonable".

I take the view, therefore, that this would have been a much better Bill, and a sounder one from the point of view of reasoning, had my hon. Friend been able to incorporate in it the wording of my hon. Friend's Amendment which is more precise and which I believe, from my own experience, would assist in protecting local authorities against any inordinate requirement to provide services as a result of the present wording of the Bill.

Mr. Willis

I am disappointed that my hon. Friend has not been willing to look at this Amendment rather more favourably. I would ask him whether he would not give this a little more thought before it goes to another place; because, as I understand it, this is the first time in which a reference to distance has not been included—either a distance from a building or from a curtilage—and I had hoped that my hon. Friend would have been able to look at this again or have been willing to do so before it went to another place.

Mr. Buchan

I understand the arguments that have been advanced and the reasons for them. The difficulty is that we are asked to provide precision. The trouble is that so many varying circumstances can exist that precision is not necessarily the quality we need here. We want the kind of situation in which varying circumstances can be dealt with in various ways and we believe that this is the best way of doing that, in association with the need to look at reasonable cost. This will not be laying upon local authorities a kind of emphasis out-with what is reasonable, because there is provision under subsection (4) for the Secretary of State, after consultation, with an aggrieved person and the local authority, to determine the question, and for the local authority to give effect to his determination.

Mr. Willis

They vary as much as the curtilages.

Mr. Buchan

But the variations of a Secretary of State will tend over a period of time to become more uniform, and his kind of decision will create uniformity, and, in the event, the kind of precision that hon. Members want.

Amendment negatived.

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