HC Deb 17 February 1970 vol 796 cc273-9

Amendment made: No. 23, in page 11, line 40, leave out 'interference or damage' and insert 'or interference'.—[Dr. Dickson Mabon.]

Earl of Dalkeith

I beg to move Amendment No. 24, in page 12, line 34, after 'in' insert the foregoing subsections of'.

Mr. Deputy Speaker

I suggest that we take, with this Amendment, Amendment No. 25, with which it is obviously linked:

In line 36, at end insert: (8) The highway authority shall not plant or cause to be planted beside any highway within reach of livestock on adjoining land any tree or shrub that could cause the poisoning of livestock and shall maintain any such existing tree or shrub in such manner as to prevent it from growing to a point where it becomes within reach of livestock. (9) If the highway authority has failed to carry out the necessary work under subsection (5) of this section within a period of 10 days of notice of the danger to livestock being given in writing by the owner or occupier of the adjoining land, that owner or occupier may make a summary application to the sheriff for an order requiring the highway authority to carry out the necessary work and the decision of the sheriff on the matter shall be final: Provided that before the sheriff makes an order under this subsection he shall give an opportunity to the highway authority to make representations about its making. (10) Where the sheriff makes an order under the last foregoing subsection requiring the carrying out of the work and the highway authority fail to carry out the work within 10 days of the making of the order or such longer period as the sheriff may allow, the adjoining owner or occupier may carry out the work himself. (11) The adjoining owner or occupier may recover any expenses reasonably incurred by him in carrying out the necessary work in pursuance of the proviso to subsection (9) of this section from the highway authority.

Earl of Dalkeith

This Amendment is a prelude to Amendment No. 25 and it would be convenient for the House to take them both together. I sometimes feel that we are no longer living in the days of the Ten Commandments but in the days of the 1,010 Commandments and that one might substitute Mabon for Moses and St. Andrew's House for Mount Sinai; because the right hon. Gentleman and his right hon. Friends sit there churning out an endless profusion of tablets all of them giving us numerous instructions—"Thou shalt not do this, thou shalt not do that"; and even in one Clause, "Thou shalt not skip on the highway"—in Clause 22.

Mr. Deputy Speaker

Order. The noble Lord will come to his own Eleventh Commandment, I hope.

Earl of Dalkeith

I appreciate that in a modern society, overcrowded as we are, we have to have a great many regulations, particularly to protect individuals from themselves especially when so many are armed with lethal weapons like motor cars. I only hope that the right hon. Gentleman and his host of heavenly officials are not too successful in thinking up new ways of restricting us. I suggest that it is a pity, and rather irritating to the general public, that the general public is always wrong and Government bureaucrats are always right. I believe that my Amendment is not only sensible and practical but puts the boot on the other foot.

Obviously, we want to encourage highway authorities to be as amenity-conscious as they possibly can in laying out highway verges with trees and shrubs so that they are attractive not only to our own population but to tourists from abroad who come to enjoy our scenery. Therefore, one would not want to do anything which is going to discourage highway authorities from planting in an attractive fashion. But at the same time the wrong trees in the wrong places could have very dire results. If, for instance, yew trees or other poisonous herbs were planted by a well-meaning highway authority just the other side of a fence where stock are kept, the casttle within that field could be killed. I am not thinking of elephants or giraffes in this context, but it is amazing how long a reach cattle have across a fence, particularly if it is a wire fence which is slightly elastic. It is perfectly possible that this situation could arise.

I would suggest that it would not be a bad thing if occasionally, just to show good will, the highway authorities were prepared under this legislation to accept an occasional "Thou shalt not", just to redress the situation where all the rest of us are told, "Thou shalt not". I know that whenever I propose an Amendment, even a good one, it is always shot down by the argument of poor drafting. In this case I have cribbed almost verbatim the wording used in an earlier part of the section, so I hope that on that score at least it will pass and that the hon. Gentleman will look sympathetically at it, because I feel that it is an important point which deserves his attention.

Dr. Dickson Mabon

These Amendments would impose on a highway authority a very onerous duty. A highway authority would be obliged to safeguard livestock outside the highway by being prohibited from planting any trees or shrubs within reach of livestock and required to maintain any such existing tree or shrub in such a manner as to prevent it from growing to a point within reach of livestock. The first is a paving Amendment the second contains a provision similar to Clause 19 (subsections 3, 4 and 5) that before the Sheriff makes an order he shall give an opportunity to the highway authority to make representations and where the highway authority fails to carry out the work within ten days or some longer period the adjoining owner or occupier may carry out the work himself and recover his expenses.

All this is somewhat misconceived, first of all because it is rather difficult to define what livestock is in this context—whether, for example, it includes dogs and poultry. At least in Clause 19(3) where the reverse position is dealt with it is made clear for the owner or occupier of adjoining land seeking to get redress in his circumstances. Basically, I am advised that the objection to these amendments is that they would impose on highway authorities, a duty which should belong to the owner of the livestock himself. It may be argued that these proposed subsections are perfectly reasonable since they merely enable the owner of livestock to require protection from the highway authority for his livestock in the same way that the authority is enabled, by the earlier provisions of Clause 19, to require him to take action to protect the road. But there is a difference, since the owner of property is basically responsible for the protection of his land and his livestock, and the highway authority is responsible for the road and the safety of the general public using the road. There is a clear responsibility falling on the highway authority for the safety of the general public.

6.30 p.m.

The noble Lord then spoke about dangerous trees overhanging roads and dilapidated walls at roadsides. Those are responsibilities of highway authorities. For that reason, the Clause, like Clause 20, gives highway authorities certain carefully defined powers to interfere with private proprietors in matters affecting the safety of road users. The private owner's respensibilities are not vicarious, and he can control the circumstances that affect his land or livestock. He can, for instance, fence his land to keep the livestock away from the road. The highway authority cannot in the same way keep the public off the road. Therefore, it does not necessarily follow that the powers conferred on the highway authority under the Clause should be accompanied by corresponding powers to the landowner.

That apart—this is a legal argument, not a drafting one—the word "livestock" is very difficult to define in this context. Moreover, the reference to trees or shrubs that could cause the poisoning of livestock is very wide. Certain livestock may die from eating one shrub. Other livestock may not. After all, what is a poison? Is it a poison to the animal's systematic process, or is it a poison by virtue of its choking of the animal's respiratory function? So the argument could go on. Why should the highway authority be responsible for a private owner's straying animals?

These are all very sensible criticisms. The logic of this is to fence, with the reservation that having fenced one is not liable, at the cost of probably about £2,000 a mile. This shows that it would be an incredible imposition on the public purse to try to achieve this, however, well merited the noble Lord may think his proposals are.

Earl of Dalkeith

The Minister of State is missing the whole point. I am talking about the situation when a local authority plants a yew tree, as it is allowed to do by Clause 8, on its own ground beside a road which is perhaps next door to a fence enclosing a field in which a farmer keeps all his cattle. The farmer's cattle can lean across the fence—they would not be straying on to the highway—and nibble at the branches of the yew tree. As a result, all the cattle could die. The farmer would have no redress. It is not for him to chop the tree down without the permission of the highway authority. I am seeking to protect farmers from highway authorities which are over zealous in the matter of planting yew trees in the wrong places.

Dr. Mabon

Then the logical cure is not to fence off all Scotland's roads, at a probable cost of £2,000 a mile. The cure is for the farmer to make proper representations that the poisonous shrubs should be removed. Alternatively, he should fence his land in such a way that his cattle do not get access to poisonous shrubs. The noble Lord seeks to nut the onus on the wrong person. A highway authority which received representations from farmers that shrubs and trees were poisonous to livestock would pay attention to the representations.

Mr. Bence

It would chop them down.

Mr. MacArthur

I am attracted by the Amendment. I protest at the way in which the Minister of State has treated the Amendment, the purpose of which is to protect farmers from the consequences of the exuberant planting of poisonous trees and shrubs by a local authority. It is conceivable that under the powers conferred by Clause 8 a local authority, particularly an urban one with a highway stretching into the nearby countryside, would plant trees and shrubs which were dangerous to livestock.

My noble friend the Member for Edinburgh, North (Earl of Dalkeith) is not seeking to require the authority to erect miles of fencing. He is merely requiring—reasonably—that there should be a protection for farmers from the risk of their livestock being poisoned from eating poisonous shrubs and trees planted by the local authority beside their land.

The Minister of State said that it was impossible to determine the meaning of "livestock". I agree that it is, perhaps, too general a word, but there must be plenty of precedents in agricultural legislation setting out the definition of beasts. I cannot believe that it is beyond the ingenuity of the draftsmen to define "livestock" so as to meet my noble Friend's purpose.

The Minister of State objected to the Amendment also by asking what is meant by poisoning—is it a choking of the respiratory system or a poisoning in the normal sense? It does not matter a hoot at this stage what is meant by poisoning. What my noble Friend means by "poison" is "poison". If the Minister of State cannot understand that, he is being more than usually obscure, and I am sorry that his display of voluntary obscurity is leading to such an obscurantist approach to this very sensible Amendment. It is reasonable that highway authorities should be prohibited from planting yew trees or laburnum trees or some types of laurel or the many other forms of poisonous trees and shrubs which can kill livestock.

A farmer is permitted to drive livestock along a highway, provided that it is not a motorway. Surely there should be some protection for a farmer driving cattle or sheep down a road from the effect on his livestock of poisonous trees or shrubs planted by the roadside. This point is not strictly covered by the Amendment, but it is a reasonable point. The Amendment's drafting may be defective, as is often the case, but it is wrong for the Minister of State to reject the Amendment out of hand for reasons which distort the original purpose of the Amendment and which are pernickety in the extreme.

Mr. Bence

The Amendment assumes that farmers would be so foolish as to turn their animals out where there were yew trees. All over the country there are graveyards with yew trees in them. No farmer would turn his cattle out into a graveyard.

Earl of Dalkeith

That is not the point. Yew trees can be planted on one side of an enclosing fence, on the edge of the highway authority's property. Those trees grow. Within five years their branches come within the reach of cattle the other side of the wire fence. Cattle stretch over the fence and nibble at the trees, as everybody knows cattle tend to do.

Mr. Bence

I was coming to that point. Anybody who knows the farming community and who was born and bred in the country—after all, farmers stopped traffic in towns with their wagons recently to get what they considered to be their reasonable demands—knows as well as I do that if a highway authority planted yew trees alongside land where a farmer grazed his cattle, they would all be uprooted the next day. As a countryman, I know vegetation that is dangerous to animals.

If the farming industry was as considerate on farms in the use of pesticides and insecticides alongside rivers as the noble Lord is asking highway authorities to be in the planting of trees, perhaps there would be more salmon and trout in rivers than there are today.

I am shocked by the noble Lord bringing forward such an Amendment and asking the Department to protect farmers against their own stupidity; because he would be a stupid farmer who turned cattle out on to an area of his farm which was bordered with yew trees or any other plants which were dangerous to his animals. This is a crazy Amendment.

Amendment negatived.

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