COMPULSORY ERECTION AND MAINTENANCE OF STOCKPROOF FENCES (Hansard, 10 March 1971)

§ Mr. Jerry Wiggin (Weston-super-Mare)
I beg to move, That the Clause be read a Second time.
I apologise for tabling the new Clause only yesterday, and I am grateful to Mr. Speaker for selecting it for debate. The delay has been due to problems with the postal services, and I hope the right hon. Member for Sheffield, Park (Mr. Mulley) will accept my apology.

§ Mr. Mulley
I certainly have no objection to the hon. Gentleman moving the new Clause, and I look forward to hearing what he has to say. I raised the general point because I felt it would be of interest to hon. Members if starred Amendments were to be considered more generously in the future than they have been in the past.

§ Mr. Wiggin
I agree with the right hon. Gentleman. The new Clause originated from the Country Landowners' Association which asked me to move it. This is not the first time that this new Clause has appeared in the last year or two in a Bill.
The purpose of the new Clause is to put a statutory obligation on the Secretary of State to fence motorways, and I accept that it is already his practice so to do. Asking him to make this a statutory obligation is, therefore, merely making legal what he already does in practice.
Special and trunk roads which do not quite qualify for motorway status have almost become motorway type roads, and these should also be fenced on an obligatory basis. Before the Minister gets the idea that I am asking him to pay for and erect more than 6,000 miles of fencing on both sides of trunk roads, I hasten to say that many of these roads are already adequately fenced. It seems fair that there should be an obligation on those who use the roads or who are responsible for maintaining the roads to keep fences in order.
The motorways of the 20th century in many ways are comparable to the railways of the 19th century. In those days the railways were required to erect and maintain fences against the land. Section 68 of the Railway Clauses Consolidation Act, 1845, made it possible for the railway company to pay compensation to allow a landowner to take on the liability, but it was still a statutory 464 liability that the railway line should be maintained.
5.30 p.m.
It must be remembered that the Animals Bill is about to be considered in this House. If that legislation is enacted, it will alter substantially the liabilities on owners if animals escape and cause injury to a third party. If an animal escapes and the farmer or landowner responsible for that escape is unaware of the difficulty, the action—presumably involving a motorist—is likely to be heard in the civil court. Nevertheless there will be substantial worry and concern introduced into the lives of those who own stock and fence against busy roads. We should remember that this situation has occurred through no fault of the landowner but because of the increasing use of the motor car, and the speed and the volume of traffic, which create risks which at one time did not exist.
I emphasise that where land is acquired under compulsory powers for the construction of road works, owners are compensated for the severance and injurious affection that arises. That compensation should cover, among other things, the owner's need to maintain a fence against the highway. In practice, this compensation does not cover the expense of maintaining such fences. In the last century very few landowners asked for compensation. They made it clear that the railway company should fence against the line in the same way as those selling land for the construction of motorways almost invariably make it a condition that the Minister should maintain that fence.
The Lord Chancellor when dealing in the House of Lords with a similar Clause on the Animals Bill introduced by Lord Henley said: I take the points which have been made by noble Lords, particularly by the noble Lord, Lord Henley, who has proposed this new Clause, and I can undertake to draw the attention of my right hon. Friend, now the Secretary of State for the Environment, and his team of able and efficient Ministers, to what has fallen from your Lordships. He concluded by saying: In so far as new roads of general purpose character are concerned, all-purpose trunk roads being driven through farming and agricultural land, it is the case that compensation is supposed to cover the maintenance of a 465 fence, although I understand that it may be the practice of the Ministry to erect the fence in the first place. That may be as it should be, but I will draw the attention of my right hon. Friend to what has been said by your Lordships. On that undertaking, I hope the noble Lord will not press his Amendment."—[OFFICIAL REPORT, House of Lords, 12th November, 1970; Vol. 312, c. 903–4.] Lord Henley did not press the matter on that occasion.
I hope that the Government will seriously consider the problems which are created for owners of agricultural land, for farmers' tenants and others by the construction of vast new roads through the countryside. I emphasise that the possible enactment of the Animals Bill will place new obligations and burdens upon those people.

§ Mr. Graham Page
The new Clause will impose on the Secretary of State a duty to erect and maintain stockproof fences along motorways and along all-purpose trunk roads, whether they be rural or urban. The statutory provision with regard to the fencing of highways provides that highway authorities, whether the Secretary of State or the local highway authority, are not bound by any statutory duty to fence roads; but under Section 85 of the Highways Act, 1959, the highway authority has a discretionary power to erect and maintain fences along highways.
The present practice of the Secretary of State is that where land adjoining the highway, whether agricultural or not, is acquired for new trunk roads, then the vendor is compensated not only for the land which is actually acquired but also, where appropriate, for severance or injurious affection and for disturbance—and, in particular, for the additional liability falling on the owner on account of fencing and the liability in regard to both initial cost and maintenance. All those matters should be taken into account in compensation. If not, it is a matter of argument between the valuers to decide what that compensation should be.
It may be that in certain cases the owners of land do not feel satisfied with the compensation offered to them and have said that they have not received sufficient compensation for the fact that it may fall to them to erect a fence. But in such a case they have a claim open to them. This is an item in compensa- 466 tion to be taken into account in deciding the amount. On all-purpose trunk roads the vendor of the land may himself erect the fences, and it is right that he should be left to place such fences as will meet his needs and to provide them out of compensation which he receives. It is usual for the fencing to be erected by the Secretary of State on the vendor's land, with his agreement; that is to say, the primary responsibility is on the owner of land. He is given the compensation but if the owner likes to have the matter taken into account, the Secretary of State will erect the fences. Any monetary compensation will have regard to the fact that the Secretary of State will be undertaking the job. In erecting fences by agreement with the vendor, the Secretary of State does not assume any liability to maintain those fences, so that the vendor could still claim his compensation for maintenance of the fences, even if he is having them erected for him by the Secretary of State.
Trunk roads and special roads—that is to say, motorways—are treated differently because of the different legal implications of motorways. It is an offence for certain classes of road user to be on a motorway. Therefore, the Secretary of State provides the stockproof fences alongside farm land adjoining a motorway. It is essential that he should undertake that work to see that there is proper protection for those who travel on the motorway from trespassers. This is erected under highway powers on the highway land as an official barrier marking the boundary of the motorway. The Secretary of State maintains the fence in perpetuity, and the compensation given to the vendor for his land reflects that. Sometimes the Secretary of State covenants with the frontager to maintain the fence, the covenant being included in the conveyance of the land for the purpose of the motorway.
In arguing for a change in this policy, it is said that in the case of new all-purpose trunk roads through farm land the imposition of a liability on the landowner to erect and maintain new fences is unfair perhaps and not adequately reflected in the compensation settlement. But the law provides for that compensation, and it must be a matter of bargaining between the vendor and the district valuer who decides on these values to see that compensation is included in the amount paid to the vendor.
467 I cannot agree to the imposition of a statutory duty to fence on the Secretary of State, as envisaged in the Clause. It could lead to a wasteful provision of fencing in situations where it is not really needed, such as in urban areas and areas where there is no question of stock grazing.
In the case of special roads and motorways, while the imposition of a statutory duty to provide and maintain stockproof fences would largely amount to the imposition of an obligation to do what is already done in practice, it must be remembered that the creation of a statutory duty to fence could expose the Secretary of State and, therefore, the taxpayer to claims from motorists who sustained accidents from animals straying on to the highway. This is not a liability which I am prepared to advise the Secretary of State to accept, although in practice he pays the owner compensation for having to provide a fence, and, in cases where the owner agrees, he provides the fence himself, taking that into account in the compensation. But it would not be right to impose a statutory obligation on the Secretary of State to provide these fences.

§ Mr. Wiggin
With the leave of the House, may I comment briefly on what my hon. Friend has said?
If my hon. Friend's argument on the question of compensation on the original acquisition is a good one and if he believes that the landowner has received the correct compensation, is not it fair to ask why his Department is frightened of taking on this liability?
I was extremely interested in that part of my hon. Friend's speech where he commented on the liability of his Department in the event of stock escaping. It is that very point which concerns landowners who have land bordering motorways.
However, in view of the way in which I was forced to table this new Clause and in the surrounding circumstances, I beg to ask leave to withdraw it.