MAINTENANCE OF VAULTS AND CELLARS ETC. (Hansard, 20 June 1984)

§ Sir Hector Monro
I beg to move amendment No. 137, in page 41, line 27, at end insert— '(3) A person upon whom a notice has been served under subsection (2) above may, within 28 days mentioned in that subsection, refer the matter by summary application to the sheriff; and the decision of the sheriff on the matter shall be final. (4) A local roads authority, may, if they think fit, pay the whole or any part of any expenditure incurred by a person in complying with subsection (1) or (2) above.'. I do not know whether I shall have any more success with this amendment, but at least I shall try.
The point was brought out by COSLA that the occupiers of premises with cellars or pavement lights would be in a difficult position if they were ordered to carry out repairs but had no right of appeal. The amendment gives the right to appeal to the sheriff. More important—it will be welcomed by those who have this type of structure — the amendment will allow local authorities to repay part of the cost of repairs where cellars and other structures need to be strengthened to take the weight of modern traffic.
It will be a plus on both sides, for the local authorities and for the owners of this type of building and cellar. I am sure that the provision is sensible.

§ Mr. Home Robertson
I should like, briefly, to add my support to what the hon. Member for Dumfries (Sir H. Monro) is suggesting.
This is a topical problem. I understand that in parts of the new town of Edinburgh—the Minister will be more familiar with it than I am — cellars and vaults were constructed underneath the streets in the style of architecture and town planning of the time.
Harking back to clause 63, which we have just disposed of, in those days we would have talked, not of 30-tonne lorries going round the streets, but of horse-drawn vehicles, which weighed a great deal less.
I understand from an article in The Scotsman, published some time last year, that recent surveys show that some of these vaults in listed buildings in the new town of Edinburgh are the worse for wear as a result of compression and vibration because of modern street traffic. Clearly, there must be many leaseholders in the City of Edinburgh and, no doubt, in other cities in Scotland, who could be confronted by alarming expenses if the clause were passed unamended.
People facing these problems in Edinburgh and other cities should be entitled to some sort of assistance from the state, and to sympathetic consideration. The amendment moved by the hon. Member for Dumfries is intended in 402 part to mitigate the problem, but the problem is serious, and it is growing in a number of city areas built at the time of the new town in Edinburgh. It is something about which hon. Members and, indeed, anyone who is concerned for the architecture of Scottish towns should be worried.

§ Mr. Dewar
I hesitate to rise yet again, but this is an important little area. There has undoubtedly been some anxiety in the local government world about the predicament in which the local authority as well as owners can find themselves, as my hon. Friend the Member for East Lothian (Mr. Home Robertson) outlined.
We would all be very sympathetic to an owner who suddenly found himself in the position where, perhaps because of the increase in and greater weight of traffic roaring past the building, the vault has become unsafe and repairs are required. No one would be hostile, at least to the intention of the amendment tabled by the hon. Member for Dumfries (Sir H. Monro).
I am not clear what criteria the sheriff would apply to an appeal. There might be argument as to whether repairs were necessary, and I suppose that the sheriff might arbitrate on that. Whether he would be the right person to do that is a matter for further consideration.
A much more likely situation, and one with which we are trying to deal, is where there may be no doubt that repairs are necessary, but the cri de coeur from the proprietor is, "I do not have the cash, and the whole building will fall down, but I cannot do anything about it. I do not have the pennies." One cannot have the sheriff refusing the right to demand repair by the local authority on the ground that the owner is skint, to put it in good Scottish parlance.
Therefore, the difficulty about the first part of the amendment is that it does not explain what the role of the sheriff is, what tests he would apply, and on what grounds such an application could be argued properly before him. I am not sure that, with the real problem that I have outlined, that right of appeal will take us much further, although I am interested in what the Minister will say.
In new subsection (4), the hon. Gentleman has addressed himself to that problem to some extent by saying that a local authority may, if they think fit, pay the whole or any part of any expenditure". That is the power to allow discretion to dig the proprietor out of a financial hole, by putting up the money. I am not clear whether we would have to put that power into statute at this point, or whether there would be such a power anyway, and whether, in agreeing to bear part of the expenses, a local authority would be acting intra vires. If that were so, the second part of this interesting amendment would be otiose and we would not have to proceed with the matter.
I ask the Minister to say a word or two about what would happen in the situation that we all have in mind, which I have outlined. Assuming that amendment No. 137 founders, and assuming for the moment that the Act has become law, if the local authority comes along and says that it wants the repairs to be carried out and the proprietor says that he cannot do it, what machinery is there to deal with that? There must be machinery. No doubt I should be familiar with it. Perhaps the Minister will get me out of a difficulty. Is it a matter of compulsory purchase? Is it a section 24 order? How is the matter settled? Will there be an order which allows the work to be carried out by the 403 local authority and the money to be recovered from the proprietor and if the building is sold thereafter, will any excess over the costs be returned to the original proprietor?
If we are not going down the road outlined by the hon. Member for Dumfries we should know exactly how the system will work in the difficult situation that could arise, which has been worrying those who will be involved.

§ Mr. Ancram
The difficulties outlined by the hon. Member for Glasgow, Garscadden (Mr. Dewar) in asking what I hope will become a hypothetical question have added to the weight of what my hon. Friend the Member for Dumfries (Sir H. Monro) said. There would have been difficulties had the provision been left as it was. Although it is a provision which, like many of the others, codifies previous law, it codifies only sections 156 and 18 of the Burgh Police (Scotland) Act 1892, which applied only to the former burghs. The previous provision applied only to vaults and other items under the footway or pavement. This clause applies, for obvious reasons, to the whole road. Therefore, my hon. Friend the Member for Dumfries was right to mention some of the difficulties that could arise. An appeal to the sheriff on the basis of a notice that might be served would depend on whether the criteria for serving the notice had been fulfilled by the conditions of the vault or cellar, or whatever it might be.
The second part of the amendment is good. COSLA was keen on it. It acknowledged the high cost of maintaining cellars under roads, especially as traffic density and vehicle weights have increased significantly over the years. The power to contribute, for which the clause provides, would complement the discretionary power of local roads authorities to contribute to private road works. That is a good way of balancing the two. I hope that the Committee, including the hon. Member for Garscadden will support my hon. Friend's amendment.

§ Mr. Dewar
I smell a rat. I suspect that it is a put-up job. I congratulate the hon. Member for Dumfries (Sir H. Monro) on his success, but I should like to press the matter further.
I wish that we were in Committee properly. I apologise for that possibly improper suggestion. You, Mr. Walker, will understand that there is a more leisurely atmosphere upstairs, and not the feeling of pressure that there is in the Chamber.
I take the Minister's point that at the end of the day an appeal to the sheriff would mean that every vault, arch, cellar and tunnel under a road would be in perfectly good nick and not in need of repair and, therefore the owner would not be required to carry out maintenance works.
It is clear that one cannot say to the sheriff, "I wish to appeal against the order because it is unreasonable. This is a rickety old building, which is not worth much. Repairs will cost an enormous sum, which I have not got anyway." An appeal based on personal circumstances is not likely to be entertained by the court. I assume that the local authority will say, "It is all very well drawing our attention to clause 64(4), which gives us the discretionary power to contribute, but we shall not use ratepayers' money in that way."
No doubt the hon. Member for Tayside, North (Mr. Walker) would applaud such a strict and businesslike approach. There may be no compelling reason for making an exception to that general rule—for example, for a 404 distinguished part of the new town of Edinburgh. If it is an ordinary building, it may be that no one will use ratepayers' money to save it.
What is the proper procedure? If the building were unsafe, would it be taken down by the local authority? If so, which statute provides for that? It is not provided for in the Bill — perhaps understandably. We should complete the picture before moving on, rejoicing in the success of the hon. Member for Dumfries.

§ Mr. Ancram
I hope that I can satisfy the hon. Member for Glasgow, Garscadden (Mr. Dewar) by referring him to clause 134(1), which states: Where by notice under this Act a roads authority require works or excavations to be executed within a specified period then, subject to subsection (3) below, if those works or excavations are not timeously executed they may themselves execute them". In the circumstances outlined by the hon. Member for Garscadden, in which someone cannot do the work, it would not be done and the local authority could carry out those works.

§ Sir Hector Monro
I express my gratitude to my hon. Friend the Minister for accepting my amendment, without even criticising its drafting. I am more than delighted and hope that it sets a precedent for his acceptance of my other amendments.