HL Deb 08 July 1913 vol 14 cc779-92

Order of the Day for the House to be put into Committee, read.

Moved, That the House do now resolve itself into Committee.—(Lord Eversley.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1 agreed to.

Clause 2:

Public use of way for twenty years conclusive that way is a public highway.

2. Where a way upon or over any land has been actually enjoyed by the public without interruption for a full period of twenty years, such way shall be deemed to have been dedicated as a public highway unless it shall appear that there is sufficient evidence arising during that period negativing the intention to dedicate such way, or unless during such period of twenty years there was not at any time any person in possession of such land capable of dedicating such way. And, where such way has been enjoyed as aforesaid for a full period of forty years, such way shall be deemed conclusively to have been dedicated as a public highway unless there is sufficient evidence arising during that period negativing the intention to dedicate such way and, in either of the cases in this section men- tioned, a notice by the owner of the land over which such way passes inconsistent with its dedication as a highway, placed and maintained in such a manner as to be visible to those using it, shall, in the absence of any proof of a contrary intention, be sufficient evidence to negative the intention to dedicate such way as a public highway: Provided that, in the case of any land let on lease, the person for the time being entitled to the reversion shall, notwithstanding the existence of any such lease, have the right to cause such notice to be placed and maintained: Provided that each of the respective periods of years mentioned in this section shall be deemed and taken to be the period next before the time when the right of the public to use a way shall have been brought into question: Provided further that nothing in this section contained shall affect the incapacity of corporations or other bodies or persons in possession of land for public or statutory purposes to dedicate any such way where such way would be incompatible with such public or statutory purposes.

LORD ZOUCHE OF HARYNGWORTH had an Amendment on the Paper, after the word "it" ["placed and maintained in such a manner as to be visible to those using it"], to insert the words "for at least six months immediately before the time when the right of the public to use the way is brought into question." The noble Lord said: This Amendment is of a technical nature dealing with the notice disclaiming any intention on the part of an owner to dedicate a way, and it lays down the time during which that notice should be exhibited. On reconsideration, however, I find that there are objections to the Amendment and that the insertion of these words might lead to complication. Therefore, with your Lordships' leave, I will not move this Amendment.

LORD EVERSLEY moved, after the word "intention" ["be sufficient evidence to negative the intention"], to insert "of time person so placing such notice." The noble Lord said: This is merely a drafting Amendment for the purpose of making it somewhat more clear than is now the case that the notice of objection to dedication is made on the part of somebody who has the right to make it. It will not affect the general scope of the Bill in ally way, but is in accordance with its general principles.

Amendment moved— Clause 2, page 1, line 24, after ("intention") insert ("of the person so placing such notice").—(Lord Evereley.)

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

LORD ZOUCHE OF HARYNGWORTH

Your Lordships will see standing on the Paper in my name a proposed new clause dealing with provisions as to notice and liability to repair. This also is a technical point, and I think it would be convenient to divide the clause and treat each of the two subsections separately. I propose subsection (1)— A way shall not be deemed to have been dedicated as a public highway under this Act until notice in writing to that effect has been served by the highway authority upon the owner of the land over which such way passes. for the following among other reasons. Under the Bill as it stands there will be no definite point of time when a way will become a public way unless there has been a dispute in the matter and a decision has been given by a Court of Law. That, if I may venture to say so, is one of the difficulties about the whole Bill—namely, that it does not appear quite clear who is to set the machinery in motion. I rather gather that the Bill is in the nature of an explanatory measure or a direction as to how decisions should be arrived at in cases of dispute. Your Lordships will see from the Memorandum attached to the Bill that there are conflicting authorities on this vexed question. Sometimes the Court decides one way and sometimes another. The purpose of the subsection which I am now recommending to your Lordships is to make the matter clearer. Its object really is to provide a procedure so that all parties may know where they are. At present it is a little doubtful who is to put the Act in motion in case of dispute. It sometimes arises that there is a dispute about a certain way which people think ought to be a public way and the case is taken up by the local authority in question, but disputes occasionally arise in consequence of claims made by irresponsible persons. As your Lordships know, very often in the case of country roads or paths which the public have been allowed to use, perhaps through the carelessness or good nature of the owner over whose land the road goes, certain irresponsible people claim a right of way for the purpose, if I may venture to say so, of making mischief or bringing themselves forward, and they try to assert a right which does not really exist and which the owner had no intention of creating. The object of the subsection which I am now moving is to endeavour to simplify the procedure in connection with these vexed questions, which very often occasion a good deal of ill-feeling and bad blood in country districts.

Amendment moved— After Clause 2 insert the following new subsection: 3.—A way shall not be deemed to have been dedicated as a public highway under this Act until notice in writing to that effect has been served by the highway authority upon the owner of the land over which such way passes."—(Lord Zouche of Haryngworth.)

LORD EVERSLEY

In this subsection the noble Lord proposes that the consent of the local authority should be necessary in order that any footpaths should be dedicated in the future. That would make a complete alteration in the law as it now stands. At present no consent of any local authority is necessary for the dedication of a right of way. This subject was dealt with two years ago by the Committee over which Lord Alverstone presided, but the Committee did not think it necessary to suggest any Amendment to this effect. Were this Amendment inserted it would be necessary, before any suit could be maintained for the prevention of the obstruction of a footpath, to get the consent of the highway authority. The highway authority in rural districts is the local district board, and that board. AS a rule, is not very favourable to footpaths, and it, has been found by experience that they are not very willing to put the law in force for the purpose of maintaining rights of way. This subject was dealt with at some length in the discussion which took place in 1894 on the Local Government Bill of that year, and a clause was inserted, very much at my instance, which in the first place threw upon the local highway authority the obligation to maintain a footpath by legal proceedings if necessary. The clause further went on to say that. if the highway authority—namely, the local district board—either refused or neglected to do so, then the parish council might appeal to the county council and ask them to undertake the protection of the right of way, and the county council were empowered to take upon themselves the duty of the district board to initiate any proceedings which might be necessary for the purpose of preventing an obstruction and to charge the district board with the cost of the proceedings. If the subsection which the noble Lord has now moved were inserted in this Bill it would practically repeal the provision of the Act of 1894 to which I have alluded, and in future it would rest entirely with the district board whether or not any proceedings should be taken for the maintenance of a right of way or the prevention of obstruction. That would be a very serious change in the law, and I do not think that your Lordships should insert such an Amendment. It would be a retrograde step to repeal that section and make the consent of the district board alone necessary for any proceedings for the purpose of protecting and maintaining footpaths. I venture to hope, therefore, that your Lordships will not agree to the noble Lord's proposed new subsection.

THE LORD CHANCELLOR (VISCOUNT HALDANE)

Apart from the difficulty which has just been pointed out by the noble Lord in charge of the Bill, there is another difficulty which I would venture to indicate. If this Amendment passes there will be a new complication introduced into an already sufficiently complicated subject. Your Lordships will observe that the proposed subsection imposing this new condition applies only to highways dedicated under this Bill, and there would be a question on every occasion in the future whether the dedication had been in conformity with the provisions of this Bill or in conformity with the rule which the Common Law lays down. I suggest to the noble Lord that this is a very dangerous Amendment to introduce into the law as it stands.

THE MARQUESS OF LANSDOWNE

I am inclined to think that my noble friend would probably be wise not to press his Amendment. This Bill is intended really as an enlargement of the rights of the public in regard to the use of rights of way, and I cannot help thinking that my noble friend's Amendment would have the effect, on the contrary, of restricting the rights which the public now enjoys under the present law. As I understand the Bill, what it enacts is that where evidence is forthcoming to show that there has been a forty years user of a right of way the claim of the public cannot then be defeated by showing that the land has been in family settlement during that period of forty years. That is an admission, or as I ventured to submit a moment ago an extension, of the rights of the public, and no question arises up to that point as to the intervention of local authorities of any kind. I cannot help thinking that if my noble friend brings in the local authority and makes the initiative of the local authority an indispensable condition it will be argued against him with some force that he is really curtailing the existing rights of the public.

LORD ZOUCHE OF HARYNGWORTH

After what has fallen from those noble Lords who have taken part in this discussion, I do not wish to press the first subsection of my proposed new clause.

Amendment, by leave, withdrawn.

LORD ZOUCHE OF HARYNGWORTH

Subsection (2), which I now move, raises a different matter, and one which I think is of considerable importance. It provides that where a way has been dedicated as a public highway under this Bill it shall, notwithstanding anything to the contrary in any Act, become a highway repairable by the inhabitants at large. The expression "inhabitants at large" is, I understand, the proper legal expression for the local authority. This does seem to me to be only a fair condition to be observed. Where a way, whether it is a footpath or a full carriage way or road for vehicles, has been declared by a competent Court to have been dedicated as a public highway on account of nobody having been interfered with in their user of it for the specified number of years—possibly, as I have already said, out of good nature, and possibly out of perfectly innocent neglect on the part of the owner to put up a notice negativing the intention to dedicate—I submit that. the way should be maintained and repaired in future by the public. Where dedication is presumed in the ease of what has always been supposed or intended to be a private way but which the owner, through neglect, or carelessness or because he did not like to interfere with the few people using it, has allowed to become a public highway, it is very hard that he should have to maintain it as a public way for the use of the public. Although I labour under the disadvantage of not being a lawyer, I rather gather that it is supposed to be against, public policy that a public highway should be repairable and should be maintained by a private person. Where the way in question is a rather unfrequented path or some road which has apparently got into disuse the matter is an unimportant one, but circumstances may change and what is now a seldom used road may become a highly frequented one in the future; and I submit that it would be very hard upon the owner of the land through which this way passes if he is liable for ever afterwards for its maintenance and repair as a public way when in the first instance there was no intention whatever to dedicate it to the public. This expense might be something considerable and might press very hard upon the owner. I am also advised that, supposing the way has been deemed to be dedicated as a highway and it is left in doubt as to who is to repair it, should the way under these new conditions, whether it be a footpath or a road for vehicles, get out of repair to such an extent that injury to the public results, the owner of the land through which the way passes might be held liable. That, I submit, is an additional reason for inserting this Amendment; otherwise you might have a very unfair burden placed upon the owner which lie did not contemplate and for which he ought not to be responsible.

Amendment moved— After Clause 2 insert the following new subsection: (2) Where a way has been dedicated as a public highway under this Act it shall, notwithstanding anything to the contrary in any Act, become a highway repairable by the inhabitants at large."—(Lord Zouche of Haryngworth.)

LORD EVERSLEY

The object of this Amendment, as I understand, is to relieve the landowner of any possibility of being called upon to repair a footpath which may be dedicated under the Bill, and to throw the cost upon the local authority. The noble Lord is in error in supposing that under the Bill as it stands any liability whatever would be thrown on the landowner. Under the present law the landowner, except in the rarest possible cases, is not responsible for the repair of any footpath which runs through his estate, and the Bill now before us makes no difference in this respect. I can assure the noble Lord that there is nothing in this Bill which will throw any fresh liability upon landowners or any responsibility for repairing a path which may be dedicated under the Bill. The question whether the responsibility should be thrown upon the local authority is another matter. As I understand the law, except in respect of footpaths which were in existence before 1835, the year of the passing of the Highways Act, there is no responsibility whatever on any local authority to repair a footpath. They are entitled to do so if they think fit, but there is no liability upon them to do so; and I think that local authorities throughout the country would be very much surprised if your Lordships were to insert this provision imposing a fresh liability of this kind upon them. When this Bill was first introduced in the other House some four or five years ago a meeting was held of the associations of the different local authorities throughout the country. They unanimously approved of the general principle of the Bill, but were under some kind of alarm that it would throw fresh liability and responsibility upon them, and at their instance I promised to introduce a clause relieving them of any liability or responsibility in respect of any footway dedicated under the Bill. When, however, the Bill was considered by the Committee of your Lordships' House two years ago, Lord Alverstone moved the deletion of this clause on the ground that it was not necessary and that it was perfectly clear that under the Bill as it stood no liability whatever would be thrown on local authorities. In these circumstances I think I should be acting in bad faith to the local authorities if I assented to the noble Lord's Amendment throwing upon them the liability to repair public footpaths which may be created under this Bill. No liability exists in respect of ordinary footpaths under the existing law, and I see no reason for throwing a fresh liability either on the landowner or on the local authority. If they think fit to repair the footpaths, well and good; but at present there is no liability whatever upon them to do so, and I do not propose in the Bill as it stands to throw upon them any such liability.

LORD ZOUCHE OF HARYNGWORTH

The noble Lord, in the observations which he has just addressed to the House, seemed to dwell on the word "footpath." rather giving us to understand that the Bill referred only to footpaths. I speak under correction as a layman, but I understand that the Bill refers not merely to a footpath but to a highway generally—that is to say, to a full road adaptable for wheel traffic and other vehicles.

THE LORD CHANCELLOR

I would point out that this Amendment goes beyond highways and throws a liability on the inhabitants at large for the repair of every footpath. That is a novel proposal, and would be a very startling one to the local authorities if it became law. It is not every highway that is repairable by the inhabitants at large, and I think it is unlikely that there will be any highway of the kind which is repairable by the highway authority being dedicated under this Bill. As to footpaths, the effect of the Amendment would be to place a large liability upon the ratepayers. I do not think that is necessary, and I must acid that I do not think it is desirable.

THE MARQUESS OF LANSDOWNE

It is clearly desirable that the point raised by my noble friend should be cleared up. It would obviously be a great injustice to the owner of the land over which a path or road of any kind passes, that a right of way should be established across his property and that he should thereafter remain subject to any obligation, either for the expense of maintaining the path or road or in respect of accidents which might take place to persons travelling along it. My noble friend seeks to meet that by a suggestion that the responsibility for maintenance should be transferred from the owner of the land to the highway authority. But I think his point would be met if we stopped short of that, and if at any rate it were established beyond doubt that whoever was responsible no responsibility either in respect of the maintenance of the road or in respect of accidents attached to the owner of the land. We understood the noble Lord in charge of the Bill to say positively that he was satisfied that the Bill as now drafted did not impose any obligation upon the owner of the land—that as no responsibility now attaches to the owner we do not relieve him of any responsibility. If the noble and learned Viscount can tell us that Lord Eversley is not wrong upon that point, and if he can tell us that whatever is true of a path is also true of a more important thoroughfare covered by the terms of the Bill, then I should feel that we were sufficiently reassured with regard to the apprehensions of my noble friend.

THE LORD CHANCELLOR

I agree with the statement of the law made by my noble friend Lord Eversley. I think it is substantially accurate. There is no liability upon the landowner in a case of this kind.

THE MARQUESS OF SALISBURY

The difficulty we are in is this. The noble Lord in charge of the Bill confined his answer absolutely to footpaths. Many of the footpaths in use are not of a nature which require repair, but the ordinary road is habitually repaired. The case put by my noble friend is this. Here is a road which the owner has always treated as a private road but by negligence has allowed the public to go over it for a certain number of years, it being settled property. Then the Bill says, quite rightly, that this road shall become a public right of way. On whom, then, henceforward does the responsibility for the repair of that road lie? Does it fall upon the local authority? "No," says the noble Lord in charge of the Bill. Does it fall on the owner? Do I understand the noble and learned Viscount to say No?

THE LORD CHANCELLOR

I can conceive a state of things in which somebody makes a road across his property, meaning it to be used by the public for carriages and carts and in every ordinary fashion, and throws it to a limited extent open to the public. In that case there is certainly no liability on the public authority to repair it, and I should say none on the part of the owner himself. If he dedicates it to the public then the public use it in the condition in which it is, even with the gates and things which the owner has put there. He is under no obligation to repair it, as far as I can see. The extent of his obligation may be this. If there is a dangerous part, something in the nature of a trap, he has no right to leave a trap open to the public, and if somebody at his invitation goes over the road the owner would be liable. But that is not repair.

THE MARQUESS OF SALISBURY

The noble and learned Viscount has dealt with the second point, to which I was coming. The first point is whether the owner in such circumstances is liable to repair the road I know such a road at this moment. It is not a right of way. It goes over private property, but under the Bill it might become with negligence a public right of way. The noble and learned Viscount tells us, though I noticed a little hesitation in his statement, that he does not believe the owner is liable to repair it. I would ask the noble and learned Viscount to assure himself before the Bill passes that his great knowledge of the law has not, failed him at this moment. Then comes the other question, the question of accident. A road might, have a hole in it and there might be an accident and somebody be hurt. The question is, Would the owner be liable? He would say, "I always thought this was a private road and I did not admit anybody except by my own grace and favour, but it turns out that it has become a public right of way and there is a hole in it and some one has gone over this hole and come to grief and he sends the doctor's bill in to me." I want to know whether, if the doctor's bill is sent in to the owner in such circumstances, he would be called upon to pay.

THE LORD CHANCELLOR

This is a rather difficult question and, depends on the circumstances, but the principle is this. If a landowner has made what looks like a public highway and dedicated it by inviting the public to conic upon it and there is a hole in the middle and he does not give warning of the existence of this hole, then some one breaks his leg, the owner would be liable. There is the same liability if you have a cellar with a trap door and do not satisfactorily fasten the door and somebody injures himself. But that has nothing to do with repair. If there is a difference made by the adoption of this Amendment it is only a difference in the case of highways dedicated under this Bill. Ordinary highways dedicated under the Common Law would be in a different position. As I understand the law, no landlord is liable for the repair of a highway which is merely a highway that he has allowed to become dedicated to the public in the way which the Common Law up till now has permitted. The Bill makes no difference in that principle. All that it does is to alter somewhat the evidence of presumption of dedication.

THE MARQUESS OF LANSDOWNE

I am not sure that the noble and learned Viscount has quite comprehended my noble friend's point. Take the case of a road which is something more than a footpath—a serviceable road which has been maintained by the owner of the adjoining land for a number of years. Then, under conditions which this Bill describes, that road becomes a public right of way. Thereupon the noble and learned Viscount tells us that the responsibility of the owner of the adjoining land ceases. He, it is quite true, has not been liable for the repair of the road in the past but he has, in fact, repaired it, and if he ceases to be liable and also ceases to make the necessary repairs, that road—it is merely a question of time—will become unsafe for traffic. Then occurs the accident which my noble friend behind me has presumed, and the question is whether it is quite clear that the owner of the land would not be liable to damages at the suit of the person who suffered from that accident.

THE LORD CHANCELLOR

My impression is that it quite clear he would not. But this is an intricate branch of the law, and I will look into the point.

LORD NEWTON

I intervene only in order to give a personal instance of the injustice which may occur under the Bill and the extremely unsatisfactory state of the law at the present moment. There happens to be on my property a case exactly analogous to that pointed out by the noble Marquess. There is a road there which is a public footpath, and owing to negligence on the part of my predecessors the public use this road as a highway, and if I were to attempt to assert my rights by putting up a gate or other obstacle no doubt the whole countryside would descend upon me and destroy the gate or whatever the obstacle might be. But I am expected to keep the road in repair, whereas the public have the complete enjoyment of it; and if anything goes wrong the so-called owner of the road is called upon not only to pay for any damages that may take place but he is also called upon to keep it in proper repair. That has always seemed to me a singularly illogical state of things, and if this Bill could be utilised to put matters on a more satisfactory footing I think it would be for the benefit of everybody concerned.

THE EARL OF CAMPERDOWN

I have listened very carefully to everything that has been said on this matter, and I rise to make a suggestion. Clearly it is intended not to throw any additional liability upon an owner by this Bill. In these circumstances I suggest that a clause should be inserted saying that "Nothing in this Act contained shall throw any additional liability upon an owner." How would that do?

THE LORD CHANCELLOR

I think it would be a very harmless clause to insert, but it is hardly germane. People would ask, What is there in the Bill that proposes to throw any liability on the owner? However, I see no objection to the insertion of such a clause as the noble Earl has suggested if he cares to move it. But it is quite unnecessary and I am not sure that it is very apt, though it is in accordance with what we all mean.

THE EARL OF CAMPERDOWN

That being so, I will put the clause on the Paper and your Lordships can look at it.

LORD ZOUCHE OF HARYNGWORTH

After what has been said, I do not wish to press the Amendment at the present moment.

Amendment, by leave, withdrawn.

Clauses 3 to 6 agreed to

Clause 7:

Commencement of Act.

7. This Act shall come into operation on the first day of January nineteen hundred and fourteen.

LORD ZOUCHE OF HARYNGWORTH

I move to leave out "January," and insert "June." The object of this Amendment, of course, is to give a little more time to the parties concerned before the Bill comes into operation. It seems desirable that there should be this slight extension of time, but I am quite in your Lordships' hands as to whether or not I should press the Amendment.

Amendment moved— Clause 7, page 2, line 25, leave out ("January") and insert ("June").—(Lord Zouche of Haryngworth.)

LORD EVERSLEY

It seemed to me that in the last Bill rather a long time was allowed before it came into operation. The period was twelve months, and therefore I made a small alteration in the present Bill by providing that it should come into operation in six months. If the noble Lord thinks the difference an important one I am ready to accept the Amendment, inasmuch as I said that the Bill was identical with the Bill of two years ago. But it seems to me that the point is not very important one way or the other.

LORD ZOUCHE OF HARYNGWORTH

I think it is reasonable that more time should be given, especially in consequence of this question of notices. I may say that I am not altogether hostile to the Bill as a whole. There are many cases where a way long enjoyed by the public ought to be a public way. But I do think that in the case of a Bill like this, which produces considerable changes, it would be advantageous that a little more time should be given.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

The Report of Amendments to be received on Monday next, and Bill to be printed as amended. (No. 105.)