§ [The reference is to Bill No. 41.]
Clause 2, page 2, line 22, at the beginning, insert as a new subsection:
("—(1) Where any drain within the meaning of this section is in such a condition that the proper flow of water is impeded, then unless the condition of the drain is attributable to the subsidence of surface due to mining operations, it shall be the duty of the person having control of the drain, or of the part thereof where the impediment occurs, to put the drain or such part thereof in proper order if by reason of such impediment agricultural land belonging to or in the occupation of some other person is injured by water, or in danger of being so injured.")
§ LORD BLEDISLOE
My Lords, I desire to draw your Lordships' attention to the first Amendment on the Paper and to move that this House agrees with the Commons in the said Amendment. I may remind your Lordships that Clause 2 of this Bill provides for the maintenance of drains by one person so as not to cause damage or loss to another. When the Bill was under discussion in Committee in your Lordships' House it was proposed to insert the word "omission" in this clause in order to cover all cases where a landowner might conceivably cause loss or damage to a neighbour by failing to keep his drains open. As there appeared to be some doubt on the part of your Lordships as to the precise meaning and effect of this word "omission". I withdrew the Amendment.
As the Bill left this House the clause gave power to serve a notice upon a person by whose act or default the unsatisfactory condition of the drain was due, but unless something was actually done by a person which caused the flow of water to be impeded, or unless he failed to carry out some legal obligation imposed by an award or as a condition of tenure, there was no power to prevent agricultural land becoming thus injuriously affected. There might be 93 default, on the contrary, by an owner if he created a nuisance by flooding land as the result of blocking a drain, but there could be no legal liability until the nuisance had been actually caused.
When the Bill was in another place it was felt that the clause as amended did not cover the whole ground and the Amendment standing on the Paper was accordingly inserted in order to make it dear that it shall be the duty of the person who has control of a drain—I would ask your Lordships particularly to notice those words—where the impediment occurs to the detriment or possible detriment of agricultural land belonging to some other person, to put that drain in proper order. I do not know whether I have made the point sufficiently clear to my noble friend Lord Dynevor, who had some observations to make when the Amendment was moved in its original form, but I trust your Lordships will, after this explanation, agree to this Amendment, particularly bearing in mind that it is only the person having control of a drain upon his own land and failing to put it in proper order and causing damage to his neighbour, who will be dealt with under this clause. I beg to move.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Bledisloe.)
§ LORD DYNEVOR
My Lords, I am much obliged to my noble friend Lord Bledisloe for explaining the meaning of the first Amendment of the Commons, but I am not quite sure that he has really cleared up the whole matter. When I read this Amendment through I had the greatest difficulty in making out to what it referred and what was the object of the Amendment. My noble friend evidently thinks that this Amendment must be read with the first subsection of Clause 2 of the Bill as it stands, but it seems to me this is a subsection which stands by itself.
§ LORD DYNEVOR
Then there is no machinery for working it. Under this Amendment who is to give the necessary notice? Suppose A. has land on which there is a drain which becomes blocked and which floods B's land? What is B to do? He does not then have to give 94 any notice to A., and if he wants to compel A. to do something to what Court has he to go? Is it to the County Court, or is it the High Court? What steps is he to take? The Bill as it stands says that where the council of a county are of opinion that a drain is impeded they may serve upon the person responsible for it a notice to put the drain in proper order, and when we look at the Bill we find that it is all subject to a notice having been served. Then the aggrieved person has all kinds of excuses given him why he is not liable for the drain being choked and he may get off on those grounds. It seems to me that this Amendment requires explanation and lacks a good deal of machinery. I will leave it to my noble friend to give an explanation.
§ LORD BLEDISLOE
My Lords, this matter has been very carefully examined by the legal advisers to my Department. They tell me it reads quite consecutively and that as it is now drafted it is the business of the council of the county or county borough to give notice to such persons who, by neglect, cause damage by flood to a neighbour. The ordinary machinery of the Bill will then operate. The ordinary machinery, so far as legal proceedings are concerned, is set out in the subsequent clauses of the Bill. I should like to assure my noble friend that the utmost care has been taken in the drafting of the Bill, and I am advised that it is watertight.
§ LORD DYNEVOR
My Lords, if I may be allowed to say a few words in reply, I should like to say that I am very much obliged to my noble friend for the explanation he has given, but that I have also taken legal advice on this question, and it seems to me there are evidently two legal opinions on the matter. I think the new clause is fairly harmless, but it may lead to litigation in order to find out what really is the legal rendering of this Amendment and how it works in with the Bill. I shall not, however, oppose it.
§ LORD BANBURY OF SOUTHAM
My Lords, I read this clause and I could not make head or tail of it, but on looking at it a second time I came to the conclusion that it means nothing at all. Therefore I have no objection to it.
§ On Question, Motion agreed to.