HC Deb 03 August 1976 vol 916 cc1576-82

Lords Amendment: No. 24, after Clause 21, in page 27, line 8, at end insert new Clause B—

"B.—(1) Where a district council, a London borough council or the Common Council—

  1. (a) considers that an excavation made at any time by some person on land in the area of the council is accessible to the public from a highway or a place of public resort and, by reason of its being unenclosed or inadequately enclosed, is a danger to the public and
  2. (b) knows the name and address of no person appearing to the council to be an owner or occupier of the land on which it appears to the council that works to 1577 remove the danger should be carried out either—
    1. (i) has made reasonable but unsuccessful enquiries for the purpose of ascertaining the name and address of such a person, or
    2. (ii) considers that in view of the imminence of the danger the delay involved in making enquiries or further enquiries about the name and address of such a person is unwarranted,
the council may carry out on the land mentioned in paragraph (b) of this subsection such works as appear to the council to be necessary for the purpose of removing the danger.

(2) Where such a council

  1. (a) considers that an excavation made at any time by some person on land in the area of the council is as mentioned in paragraph (a) of the preceding subsection; and
  2. (b) knows the name and address of a person appearing to the council to be an owner or occupier of the land on which it appears to the council that works to remove the danger in question should be carried out,
the council may serve on an owner or occupier of the land a notice specifying the excavation and stating that the council proposes to carry out, for the purpose of removing the danger in question such works as are specified in the notice at such places on the land as are so specified.

(3) If any person having an interest in or a right over land in respect of which a notice is served in pursuance of the preceding subsection objects to the notice on one or more of the following grounds, namely—

  1. (a) that the excavation is not a danger to the public; or
  2. (b) that works other than some or all of those specified in the notice are appropriate for the purpose of removing the danger; or
  3. (c) that places other than some or all of those so specified are appropriate as the site of works for removing the danger,
he may, during the period of 21 days beginning with the date on which the notice was served, appeal to the county court against the notice.

(4) On such an appeal the court shall either quash the notice or dismiss the appeal or, where a ground of the appeal is the ground specified in paragraph (b) or (c) of the preceding subsection, modify the notice so that it refers only to works or, as the case may be, places which the appellant agrees or the appellants agree are appropriate for the purpose of removing the danger: but the notice shall not be modified by the court so as to refer to a place on land of which no appellant is an owner or occupier.

(5) If no appeal in pursuance of subsection (3) of this section is made against a notice within the period mentioned in that subsection or if on such an appeal the appeal is dismissed or the notice is modified as mentioned in the preceding subsection, the council which served the notice may, at any time after the expiration of that period or, as the case may be, after the appeal is dismissed or the notice is modified, carry out the works specified in the notice at the places so specified.

(6) It shall be the duty of a council by which works have been carried out in pursuance of this section to maintain and repair the works except—

  1. (a) so far as they consist of the filling in of the excavation in question;
  2. (b) after the works have been removed in pursuance of the following subsection:
  3. (c) in a case where the council has agreed with a person who is for the time being an owner or occupier of the land on which the works are situated that he shall maintain and repair the works and he has performed his obligations under the agreement.

(7) Where it appears to a council by which works have been carried out in pursuance of this section that if the works were removed the excavation in question would not be a danger to the public, then—

  1. (a) the council may remove the works and
  2. (b) it shall be the duty of the council to remove the works, except so far as they consist of the filling in of the excavation in question, if it is requested to do so by a person having an interest in or a right over the land on which the works are situated.

(8) Without prejudice to the powers conferred by section 37 of the Local Government Act 172 (which authorises a local authority to incur expenditure which it considers is in the interests of its area or inhabitants of its area), a district council, a London borough council or the Common Council may pay to any person the whole or part of the expenses incurred by him in carrying out works for preventing or removing danger to the public from an excavation made at any time by some person on land in the area of the authority, whether or not the person who incurred the expenses had a duty to carry out any such works."

Mr. Guy Barnett

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

Mr. Speaker

With this we may discuss Lords Amendment No. 25, in page 27, line 8, at end insert New Clause C—

Provisions supplementary to section (Power of certain councils with respect to dangerous excavations)

"C.—(1) A person authorised in writing in that behalf by such a council as is mentioned in subsection (1) of the preceding section may enter on any land in the area of the council for the purpose of—

  1. (a) ascertaining whether the land is suitable as the site of works which the council may carry out or for which the council may serve a notice in pursuance of that section; or
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  2. (b) carrying out, maintaining, repairing or removing in pursuance of that section any works on behalf of the council; or
  3. (c) ascertaining whether any works carried out by the council in pursuance of that seciton should be or have been maintained, repaired or removed.

(2) A person authorised by a council to enter on land in pursuance of the preceding sub-section—

  1. (a) shall, if so required before or after entering on the land, produce evidence of his authority to enter;
  2. (b) may take with him on to the land such other persons and such equipment as are necessary for achieving the purpose for which he was authorised to enter on the land;
  3. (c) shall, if the land is unoccupied when he enters or the occupier is then temporarily absent, leave the land as effectually secured against trespassers as he found it.

(3) If a person having an interest in or a right over any land suffers damage in consequence of the carrying out, maintaining, repairing or removing of works by a council in pursuance of the preceding section or the exercise by a person authorised by a council of a power conferred by subsection (1) or (2)(b) of this section or a failure of such a person to perform the duty imposed by subsection (2)(c) of this section, the person who suffers the damage shall, subject to the following subsection, be entitled to recover compensation for the damage from the council, and subsection (5) of section 28 of this Act shall have effect for the purposes of this subsection as if for the reference to subsection (4) of that section there were substituted a reference to this subsection.

(4) No compensation shall be payable by virtue of the preceding subsection, to any person having an interest in the site of the excavation in question, in respect of damage attributable to the presence of permanent works on any land other than damage attributable to interference with an easement or profit.

(5) If a person—

  1. (a) wilfully obstructs another person in the exercise of a power conferred on the other person by subsection (1) or (2)(b) of this section; or
  2. (b) while another person is on land in pursuance of the said subsection (2)(b) wilfully obstructs him in doing things connected with the works in question; or
  3. (c) without the agreement of the council by which works have been carried out in pursuance of the preceding section, removes or otherwise interferes with the works,
he shall be guilty of an offence and liable on summary conviction, to a fine not exceeding £100.

(6) Nothing in the preceding section or the preceding provisions of this section applies to an excavation—

  1. (a) on operational land of statutory undertakers; or
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  2. (b) on land of the National Coal Board of such a description as the Secretary of State may specify by regulations made by statutory instrument;
and the definition of 'operational land' in section 222 of the Town and Country Planning Act 1971 shall apply for the purposes of paragraph (a) of this subsection as if in that section 'statutory undertakers' had the same meaning as in that paragraph and 'undertaking' had a corresponding meaning."

Mr. Barnett

New Clause B is aimed at implementing an undertaking given in Committee. The purpose of the substantive clause is to allow local authorities to carry out works to enclose dangerous excavations such as pits, wells and shafts which are not on public land but which are accessible to the public. Serious personal accidents, especially to children, obviously arouse very strong public reaction. As a result, some authorities have sought and been granted powers in local Acts.

It is not our intention that the powers should be applied to large tracts of water which may of course be used for recreational or amenity purposes. The clauses in any case do not apply to natural depressions; and excavations on operational land of statutory undertakers are also excluded.

The intention is that local authorities will have a power to take preventive measures in the sort of place which will have gained a degree of notoriety in the locality. Clearly it would be in everyone's interest for the owner or occupier of the source of danger himself to render the land safe, not least for his own protection against possible legal proceedings for negligence. But it may not always be possible to ascertain who is responsible for the land, and an owner or occupier may have neither the desire nor the means to carry out the necessary works. In such circumstances the authority may feel impelled to resort to these powers.

The clauses seek a balance between, on the one hand, prompt action by a council once it has identified a source of danger and, on the other, the provision of reasonable safeguards for the rights of owners and occupiers of private land on which works are proposed or sited.

Mr. Graham Page

I agree with the spirit of these clauses. However. I regard them as defective. These provisions give power to a local authority to go on to land in order to right a danger by enclosing an excavation or whatever it may be. If there is an imminent danger, a council can go to land and spend money to carry out works to remove that danger. It can serve a notice on an owner, and if that notice is upheld by the court and the work is not carried out the council itself can carry out the work. The question is, who pays for this? As the clause stands, if the council carries out the work, either by reason of the fact that the danger is imminent and it does not know who is the owner or occupier or because the owner or occupier fails to carry out the notice, the local authority is left with the cost of the works.

Subsection (8) of New Clause B says that the council can even pay out money to someone to do the work. Subsection (3) of New Clause B says that the council can pay compensation to the owner or occupier for any damage it may do to the land in carrying out the works. But here is a danger which has been created by the owner or occupier of the land. Why should the ratepayer pay for that to be righted? The wrong has been caused by the owner or occupier.

I would have hoped that there would be provision in the clause for recovery of the costs from the person who was responsible for having the dangerous condition on his land, that if the money was not paid it should become a charge on the property and that the amount should be registrable as a local land charge. After all, this sort of thing is done in the case of street work charges and on many other occasions when local authorities have to spend money on other people's land.

It seems to me that the two clauses are defective, first in regard to the absence of any provision that the cost can be recovered from the person who has caused the danger, and secondly, because if the costs are not paid there is no provision for their becoming a charge on the land and being registrable as a local land charge. Frequently, quite considerable expense could be caused in protecting these dangerous areas. It might be a matter of building a wall or filling in, or some other form of work carried out on the land which might cause considerable cost to the ratepayers. Why should ratepayers as a whole pay for the remedying of a danger caused by a landowner or occupier?

Mr. Guy Barnett

I am interested in the right hon. Gentleman's point. Offhand, I cannot answer him definitely on the specific issue about whether any payment can in certain circumstances be charged to an individual or to a company which owns land upon which a dangerous piece of excavation, a pit or whatever it might be exists. On the other hand, I think the right hon. Gentleman will admit that the whole purpose behind the clause is to enable the local authority to act, and to act quickly, where there are dangers, which might involve children.

In that respect, I think that I could justify to the House that the cost should fall upon the ratepayer in the sense that there could be a public danger, whoever happened to own the land. It would be a danger to grown-ups and to children, and in that sense one could justify the charge falling on the rates. On the other hand, I take the right hon. Gentleman's point concerning a hazard on private land and people being affected. I do not know what the precise legal situation would be about this. Presumably the law of trespass and so on would be involved. May I write to the right hon. Gentleman on that? I hope that in other respects he, like the rest of the House, welcomes the clause.

Question put and agreed to.

Subsequent Lords amendment agreed to.

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