HC Deb 05 May 1970 vol 801 cc356-68

Lords Amendments considered.

Clause 9




Lords Amendment No. 1: In page 6, line 17, at end insert— () Any work authorised to be done by a scheme made by a highway authority under this section shall, for the purposes of section 7 of the Telegraph Act 1878 (provisions as to work which involves alteration in telegraphic line), be deemed to be work proposed to be done in the execution of an undertaking authorised by an Act of Parliament and the highway authority carrying out the work shall be deemed to be the undertakers.

11.20 p.m.

The Minister of State, Scottish Office (Dr. J. Dickson Mabon)

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment was made in another place to meet a request made by the Post Office after the Report stage had been completed in this House. Where such a bridge or tunnel forms part of a motorway, the Post Office already has similar protection under section 20 of the Special Roads Act, 1949. Clause 9 gives all highway authorities powers which are very similar to those possessed by special road authorities. Indeed, Clause 9 is modelled on the statutory provisions relating to the construction of bridges or tunnels as part of special roads.

The Amendment gives the Post Office protection under Section 7 of the Telegraph Act, 1878, where a scheme is made by a highway authority for the provision of a bridge over or a tunnel under navigable waters. We are, therefore, trying to give the same protection in regard to this matter as exists in regard to special roads. We are very grateful to the Post Office for pointing this out to us. The matter had escaped the attention of all hon. Members. We are glad to make this rectification.

Mr. Alick Buchanan-Smith (North Angus and Mearns)

I am interested to hear that, in the preparation of a Bill like this, consultations with an important body like the Post Office can in the early stages apparently go by default.

We welcome the Amendment, which makes a necessary importation into the Bill. How did the Bill manage to reach this stage without consultation with the Post Office?

Dr. Dickson Mabon

We consult all the authorities and ask them for comments from time to time. We do that at all stages of the Bill's passage. We are glad that the Post Office pointed out this omission. Otherwise, we should have had to find a place for this provision in another Bill. We are nearly perfect, but not completely so.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

Clause 18



Lords Amendment No. 3:In page 11, line 37, leave out "in the removal of the object".

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

I suggest that the House should discuss also Lords Amendments Nos. 4 and 5.

Dr. Mabon

The hon. Member for Dumfries (Mr. Monro) was good enough to point out in Committee the Difference between Clause 18(1) and Clause 18(3) and also subsection (2). We are grateful to the hon. Gentleman far his helpful suggestion.

Subsection (2) enables the highway authority to fence and light an obstruction, pending its removal, but there was no power in the subsection to recover the cost of fencing and lighting. It seems to us that the three Amendments taken together meet the point that there ought not to be different treatment of these cases. They ought to be on the same basis. Authorities can recover expenses either from the owner of the object causing the obstruction or from the proceeds of disposal of the object.

The first Amendment extends the power of recovery to all expenses incurred by the highway authority under the Clause and not only to removal expenses. The second Amendment is consequential. The Clause enables a highway authority to sell an unclaimed object and use the proceeds for expenses. Amendment No. 5 ensures that these expenses may include lighting and fencing.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Clause 19



Lords Amendment No. 6: In page 13, line 3, at end insert— () The highway authority may make such contribution as they think fit towards any expenses reasonably incurred by a person in carrying out necessary work in pursuance of subsection (1) or (2) of this section.

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment would enable highway authorities, at their discretion, to contribute towards the costs incurred by owners and occupiers in carrying out remedial works on dangerous trees, hedges, walls, etc. under the Clause—that is, when required to do so by the highway authority. The Clause already enables the highway authority to waive recovery of expenses which it incurs in carrying out such works in an emergency or in default of action by the owner or occupier.

The Amendment to some extent meets the representations which we have received since the Bill has been discussed in Parliament—representations from the Scottish Landowners' Federation and the National Farmers' Union. We have not been able to go all the way with these representations.

It is fair to say that the Landowners' Federation would have liked us to put the whole financial responsibility on highway authorities, but this appears to us to be inequitable. Those who have had experience about arguments over retaining walls, and so on, know that they have long been a source of controversy. I shall not go into all these matters now, because I believe that these Amendments meet, to some extent, the represenations of the Federation and the N.F.U., and I hope that they will be agreeable to all concerned.

Mr. Buchanan-Smith

I am grateful to the Minister for this Amendment, because it meets in part the point that I raised in Committee. I did so purely in relation to retaining walls and the problems where traffic conditions have changed. The Minister then leading for the Government pointed out that a highway authority had a discretion not to recover costs.

The Amendment goes very much further, in that it allows a highway authority to contribute positively towards doing this. On behalf of my hon. Friends, I welcome the Amendment, which meets the point that I raised in Committee.

Question put and agreed to.

Lords Amendment No. 7: In page 13, line 8, leave out subsection (6), and insert— (6) As soon as may be after the necessity for work under this section arises on a tree which is subject to a tree preservation order made under section 26(1) of the Town and Country Planning (Scotland) Act 1947 and before any such work is commenced, the highway authority shall give notice of the proposed work to the local planning authority within the meaning of section 2 of the said Act of 1947: Provided that if in the opinion of the highway authority there is imminent danger from the tree falling on the road, they may dispense with the giving of such notice.

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Subsection (6) as originally drafted permitted a tree which was subject to a tree preservation order to be felled or lopped if it created a danger or obstruction for road users. The Amendment would require the highway authority to give notice to the local planning authority before work has begun to lop or fell such a tree. If, however, the highway authority considers that there is imminent danger from the tree falling on the road, it need not give notice. The obligation to give notice is laid on the highway authority and not on any person whom it orders to do the lopping or felling.

I shall not go into a full explanation of Section 26 of the 1947 Act, in defence of the Amendment, except to say that we are grateful to those in another place who made this suggestion.

Question put and agreed to.

Clause 21



Lords Amendment No. 8: In page 13, line 36, leave out subsections (1) to (3) and insert— (1) A person who, being in charge of a vehicle on a road, allows such quantity of mud, clay, lime, farmyard manure, or other material from the vehicle, or from anything carried on the vehicle, to drop or be deposited on the carriageway of the road so as to create, or be likely to create, a danger or substantial inconvenience to persons using the road and who fails to remove the material as soon as is reasonably practicable thereafter, and in any event before the next occurring sunset, shall be guilty of an offence and shall be liable to a fine not exceeding £20.

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

With this Amendment we can take Lords Amendment No. 9.

Dr. Mabon

This was popularly known in Committee and elsewhere as the "mud" Amendment. I pay tribute to all those hon. Members who served on the Committee for the constructive suggestions they made in the debates we had on this Clause. It is true that at the end of the day the Commons were unable to come to a definite view on the right wording, and that we are taking this from another place, but this is really the work of hon. Members of this House.

These Amendments fulfil an undertaking given in this House that an Amendment would be tabled to make the Clause more flexible in operation and to overcome the difficulties foreseen by agricultural interests. The amended Clause makes it an offence to allow mud, and so on, from vehicles to drop on to the road and to fail to remove it within a reasonable time. The second Amendment ensures that the offence covers anything towed or pushed by a vehicle and any equipment, such as a harrow, which might not come within the normal definition of a vehicle. The Clause as originally drafted made it an offence to take a vehicle on the road without taking all reasonably practicable steps to remove mud, and so on. from the vehicle.

Apart from the disquiet expressed by hon. Members in this House we had a number of representations about the difficulty involved in cleaning a vehicle in certain circumstances. The National Farmers' Union has been most helpful on this, and I am grateful to it. We have borrowed a Fife bylaw, with one modification. It is a byelaw that works and is acceptable to those who have to operate it.

The amended subsection (1) also refers to "substantial inconvenience" to persons using the road. References to inconvenience were criticised in the House but on Report my hon. Friend the Member for Dunfermline Burghs (Mr. Adam Hunter) made a strong plea for the retention of the word "inconvenience". He mentioned a development scheme being carried out over a period of some years which has resulted in mud, clay and other materials being deposited on the roads, footpaths, and so on. We have, therefore, decided that there is a case for retaining a reference to inconvenience, but qualified with the word "substantial".

I will willingly answer any points on this important Clause, even though we have called it the mud Clause, but I think that we have arrived at a sensible solution with the Fife byelaw suggested in this place by a former Solicitor-General. I hope, therefore, that it is acceptable to everybody.

11.30 p.m.

Mr. Buchanan-Smith

I am glad to speak on the Lords Amendment, because, as the Minister has said, this Clause probably attracted more time in Committee and on Report in this House than almost any other Clause of the Bill. I should like, first, to express considerable interest in the Clause as it affects my constituency because, as the Minister of State knows—and I see that the Joint Parliamentary Secretary to the Ministry of Agriculture also knows, since he lives in my constituency—we have a particular type of very red soil in the Mearns which would mean that farmers and contractors in Kincardineshire are much more liable to come under prosecution as a result of the Clause—and I see the Joint Parliamentary Secretary nodding—than are those from almost any other area in the United Kingdom. I am sure that the Joint Parliamentary Secretary has practical experience of carrying that red soil on to the roads. Therefore, from a constituency view, apart from the wider interest, I am particularly concerned that we should get the right answer.

I certainly welcome the practical approach of the Government, and I pay tribute to the Minister of State for having been so flexible and open to suggestions on the Clause. I welcome, too, the fact that the Amendment is based on a practical byelaw of a county in Scotland which has had experience in administering it. At the same time, as the Minister of State has acknowledged, one must recognise that the Amendment is largely based also on suggestions put forward by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), to whom the House owes a great debt for his assistance in clarifying our minds on this matter in our earlier debates.

My only other comment relates to what the Minister has said about "substantial inconvenience ". On Report, we had a great debate on what constituted an inconvenience. We discussed ladies crossing muddy roads wearing shoes which did not completely cover the feet. I remember that Mr. Speaker entered into that debate with an intervention.

From what the hon. Member for Dunfermline Burghs (Mr. Adam Hunter) said in our earlier debate, I appreciate the need to use the word "inconvenience". What slightly worries me is its qualification by "substantial", because on Report, on an earlier Clause, my hon. and learned Friend the Member for Pentlands was chided by the Minister for using the word "material", which is much the same as "substantial", in qualifying something. Therefore, I am rather surprised that the Minister comes forward with an expression like "substantial inconvenience", which might prove difficult of definition in the courts. However, for lack of anything else, I suppose that we must accept it, but I hope that the Minister will recall—and, perhaps, read—the words of advice he gave to my hon. and learned Friend.

I hope that this important Clause will be sensibly interpreted, and in practical terms, both by the police, who will be responsible for making any charges under it, and also by the procurator-fiscals in Scotland, who will be responsible for proceedings under it. The Minister of State has acknowledged that responsible and constructive attitude of the National Farmers' Union and others in Scotland. I am certain that there is anxiety that the Clause should be sensibly interpreted and, at the same time, that those who may be responsible for depositing mud on roads will be careful about it.

Therefore, in the sense that we have had co-operation in the House in the formation of the Clause, there is hope also of common sense outside and co-operation between those who may deposit mud and the authorities who are responsible for administering the Clause. Only in that way, following the great deal of debate and thought that we have given to the Clause, can we make sure that in the event it is worth while.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Clause 24



Lords Amendment No.11: In page 15, line 40, at end insert— ; and that person shall maintain an excavation filled in by him in pursuance of this subsection for such period, not exceeding 6 months from the completion of the filling in. as may be specified by the highway authority.

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Deputy Speaker (Mr. Sydney Irving)

With this Amendment it may be convenient to discuss Lords Amendments Nos. 12. 13 and 14.

Dr. Mabon

Those are consequential on Lords Amendment No. 11. The purpose of the Amendment is to provide over Scotland for a maintenance period of six months rather than to have discrepancies as, for example, in Glasgow, which made the point to us, of three months. We are simply making this Scottish rather than local.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment No.15: In page 16, line 19, leave out subsection (7) and insert— (7) This section and subsections (1), (2) and (3) of the next following section shall not apply— (a) in any circumstances where any of the following enactments applies— (i) section 29 of the Burgh Police (Scotland) Act 1903 (penalty on unauthorised occupation of street), (ii) section 8 of the Building (Scotland) Act 1959 (occupation of parts of road for deposit of building materials), (iii) section 19 of the Civic Amenities Act 1967 (penalty for unauthorised dumping of motor vehicles etc.), (iv) section 22 or 23 of this Act, or (b) to any works to which the street works code as contained in the Public Utilities Street Works Act 1950 applies.

Dr. Dickson Mabon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Although this Amendment looks rather formidable it is, in fact, only drafting.

Question put and agreed to.

New Clause "A"



Lords Amendment No. 16: In page 21, line 45, at end insert new Clause "A"— A.—(1) The highway authority may enter any land to search for, dig and carry away materials for the purpose of making or repairing a highway and may carry such materials through the land of any person. (2) Before carrying out any operations under this section, the highway authority shall serve notice of their intention on the owner and the occupier of the land concerned together with a description of the proposed operations and of the right to object thereto within 28 days after the service of the notice. (3) Where the highway authority is a local highway authority and within the said period of 28 days the owner or the occupier objects to the proposed operations, and that objection is not withdrawn, the local highway authority shall not proceed to execute the operations without consent aftermentioned but may refer the matter for the determination of the Secretary of State who may grant consent to the proposed operations either unconditionally or subject to such terms and conditions as he thinks just, or who may withhold his consent, and the decision of the Secretary of State on the matter shall be final. (4) The highway authority shall pay compensation to the owner or occupier of the land for any damage done thereto by reason of the exercise of their powers under this section and for the value of materials carried away by them. (5) Where an excavation is made by the highway authority in the exercise of their powers under this section, the authority shall— (a) while the work is in progress, and thereafter so long as the excavation remains open, keep the excavation sufficiently fenced to prevent accidents to persons or animals, (b) as soon as is reasonably practicable after the completion of the work, fill up the excavation or slope it down and fence it off, if the owner or occupier so requires, and thereafter keep it so fenced, (c) so far as is reasonably practicable, when filling up the excavation, make good and level the ground.

Dr. Dickson Malbon

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Deputy Speaker

With this Amendment it may be convenient also to discuss Lords Amendments Nos. 17, 18, 22 and 24.

Dr. Mabon

I must confess that this may be the most formidable task facing me at this stage of the Bill. In another place there was a discussion about three important items. Amendment No. 22 repeals Section 80 of the General Turnpike Act, 1831, which appears as Schedule C in the Roads and Bridges (Scotland) Act, 1878. Section 80 of the 1831 Act empowers highway authorities to obtain material for making and repairing roads. Our new Clause A re-enacts the main substance of Section 80 of the 1831 Act, but in wording more in keeping with modern drafting practice and embodying safeguards which we now regard as normal in authorising the exercise of such powers.

The third thing which we seek to do is to make consequential adjustments in the Bill itself and in previous Acts. It could be argued that we should not have done this at this stage and that we should have awaited a consolidation Bill. After listening to the debate in another place, my right hon. Friend decided that it would be far wiser if we took on this general task of making these substantial rewritings, for that is what it is, and of modernising a law which has served us well but which is written in terminology which is not as up to date as we should like for it to be understood both by the general public and those concerned with the operation of the Bill.

If there are any specific points of elucidation about which I can help, and which will help to secure the agreement of the House to the Amendments, I shall be happy to explain.

Mr. Buchanan-Smith

I cannot claim to have followed this provision back to the Turnpike Act, 1831, but I have taken the trouble, in anticipation of this matter being discussed at a late hour, to read the debates on the subject in another place. The fact that the Government have been persuaded about this important matter and believe it to be worth making this change at this late stage indicates the value of debates in another place in helping us to improve legislation.

Having read the debate in another place, I do not intend to go into the details now, but there is one general comment which I should like to make. When important consolidation of a modernisation Measure like this comes forward at a late hour, when the whole Bill is largely the modernisation of previous legislation, one's mind immediately boggles at the thought of what else the Government might have missed out which ought to have been included. One quickly draws back, because otherwise one might be here till kingdom come if one tried to modernise all the legislation that goes back over nearly two centuries.

The Opposition welcome the Clause because it appears to help in certain circumstances particularly owners of land and others who find a road going through their property and become liable to having road materials excavated. But 1 should like elucidation on a small point. Subsection (5)(b) states: as soon as is reasonably practicable after the completion of the work, fill up the excavation or slope it down and fence it off, if the owner or occupier so requires, and thereafter keep it so fenced. This is important. I have seen it where there have been road works, particularly in country areas, and local materials have been used.

In Scotland, as elsewhere, we are concerned with tourist attractions and keeping the countryside beautiful, and at no time is this more important than in Conservation Year. Therefore, we want to avoid at all costs scars appearing in the countryside as a result of such measures.

I welcome the subsection and hope that, in practice, it will be strictly adhered to, so that where quarries and other excavations become necessary there will be good landscaping and tidying up afterwards. After all, tourism is one of the main industries of Scotland. In modernising our roads, do not let us lose sight of other considerations such as tourism.

11.44 p.m.

Dr. Dickson Mahon

I am obliged to the hon. Gentleman for those remarks.

The three main defects of the previous provisions are that for purposes of notice to proprietors and compensation they distinguish between enclosed and unenclosed land, they authorise the taking of materials in certain cases without notice to proprietors, and the provisions for compensation are very odd indeed, being related to whether material taken from land is eventually used within three miles of the place where it was taken.

Subsection (5) of the new Clause requires the highway authority to fence excavations while work is going on and, when it is completed, either to fence excavations or fill them in and make good the ground surface. I agree with everything the hon. Gentleman said about that. In the General Turnpike Act there are rather similar requirements in relation to unenclosed land, but there is no reference to enclosed land. That is why we thought we would make this revision and put it into modern terminology.

Question put and agreed to.

Remaining Lords Amendments agreed to [Several with Special Entry.]