HL Deb 02 March 1926 vol 63 cc367-80

Order of the Day for the Second Reading read.


My Lords, I beg to move the Second Reading of this Bill and in doing so I should like to remind your Lordships that the two greatest needs of the land of Great Britain to-day are drainage on the one hand and lime on the other, and the former is much the greater. The efficient drainage of our agricultural land would probably increase its average productivity by at least 7 per cent. Out of 27 million acres of cultivated land in England and Wales at least one million are to-day waterlogged, and another half million are badly drained, and these areas include some of the richest land in the kingdom, comprising, of course, a good deal of alluvial land contiguous to the estuaries of our larger rivers. Upon these the food output might be trebled by efficient drainage.

It is estimated that the lack of such drainage involves a loss to the nation in food value of£18,000,000 a year at least. The effect of inadequate drainage is to check germination and delay the ripening of crops; it induces rushes, sedges, mare's tail and other useless weeds to abound on potentially fertile soils, and it also aggravates the effects of drought—which is not generally known—owing to the shallow rooting of grass and arable crops. It not only produces mists and thereby adversely affects human health, but it also spreads liver fluke, foot-rot and other diseases among our livestock, and fungoid and insect pests among our economic plants. It intensifies the danger to our fruit plantations and orchards from spring frosts, and reduces the seasonal opportunities of rapid and successful tillage. It involves also a serious waste of fertilisers, hampers the development of intensive cultivation, and checks more intensive land settlement, such as all Governments in this country are bound now to promote. There is no respect in which the negligence of one owner or occupier of land can more seriously injure others, often over extensive areas where the gradient of the surface is relatively flat, the land is stiff, or the rainfall is heavy. I am conscious that in these days the control of land or its cultivation on the part of either the Government or the local authorities is not very popular, but even the strongest opponents of centralised control have for many centuries past admitted its necessity and efficacy in the case of land drainage. No one can deny the growing seriousness of the land drainage problem in this country.

It is hoped next Session to introduce legislation for the wholesale amendment of the existing law relating to land drainage, based on the findings of a Commission which has recently reported in relation to the very difficult problem of effectively draining the house watershed. This Bill is limited in its scope, and only intended to confer upon county councils wider powers of control over land drainage than those which they already possess. These are, in fact, at present very restricted. For some time past there has been a growing feeling on the part of county councils that in certain directions they might usefully exercise larger powers in this direction, and this has been accentuated by the activities of other county committees, and the various problems which are perpetually confronting them. Several counties, without waiting for this Bill, have sought from Parliament an extension of their previously existing powers under the Land Drainage Act of 1918, to meet their own local requirements, and three, Lancashire, the West Riding of Yorkshire and Surrey, have in recent years secured the passage of private Acts of Parliament with this object. in view. Resolutions have been received from county councils all over England and Wales asking for their land drainage powers to be extended by an Act of general operation. They have been strongly supported by the County Councils' Association, with whom for some time past the Ministry of Agriculture have been in close consultation upon this matter. The draft of this Bill has been submitted to this association, -who have expressed their general concurrence, while regretting that it is not of a more drastic and far-reaching character; but as a speedy passage is desired for the Bill, and as much more comprehensive additional legislation is contemplated next year, it has been thought desirable to make this Bill as simple and non-contentious as possible.

I have no doubt that it will be asked why we introduced this Bill at all when we are contemplating a larger measure next Session. The answer is, first, that this Bill deals primarily with county councils and not with statutory drainage authorities, who will he the parties mainly affected by next year's legislation; secondly, that the powers which the Bill seeks to confer have been unanimously and urgently asked for; and, thirdly, that the vesting of these further powers in county councils will, it is doped, tend to make them take a more. serious view of this drainage problem, an d thereby pave the way for more general amending legislation, which is hound in the long run to affect them materially, as well as the drainage authorities, especially if the present multiplicity of drainage authorities is thereby reduced, as seems not unlikely, at any rate in the long run.

This Bill does two things. By Clause 1 it, transfers to county councils all the powers of the Ministry of Agriculture under Part II of the Land Drainage Act of 1918. By Clause 2 it empowers a county council to require a drain, as defined in subsection (9), to he put in proper order when the flow of water is impeded to the detriment of the surrounding land. All the other clauses are consequential or, ancillary to those two. I may now remind the House of the powers conferred by the Act of 1918, which it is proposed by Clause 1 to transfer from the Ministry to county and borough councils. These are threefold: first, to enforce the liability to repair drainage works for which the owner and occupier are liable under Section 15 of the old Sewers Aft of 1833; secondly, to exercise the powers of a drainage authority in those areas where the failure of the authority to exercise its powers is resulting in injury by flood, or where the council's exercise of such powers might materially remedy defective drainage; and, thirdly, to carry out, and subsequently maintain, what are called small drainage schemes in areas where a statutory drainage authority does not exist, and where it cannot conveniently be set up. The cost of these smaller schemes is limited to£5,000 in all under Section 16 of that Act.

Under the existing law all these powers can be transferred by the Ministry to the county councils or borough councils, and this has, in fact, been done. Except, however, in one or two isolated instances, the powers have not been exercised because dm obligation of finding the requisite money falls in the first instance upon the State, and, with the present need for economy, the Treasury have not been prepared to make the necessary advances. Moreover, during the past four years the Treasury, as your Lordships will know, have advanced large sums for drainage schemes for the relief of unemployment, and these have, in effect, made the execution of the small drainage schemes to which I have referred largely unnecessary.

All these powers will, under this Bill, now be transferred to the county and borough councils, who will therefore be entitled to exercise them without reference to the Ministry of Agriculture. But they will have to make their own arrangements—and this must be clearly understood—for finding the money required for their exercise. Theoretically such money is entirely recoverable from the persons who will be benefited by the execution of this work. It is hoped that in the light of the valuable experience which the county councils have gained from voluntary drainage schemes for the relief of unemployment, they may be able to organise such schemes in future with efficiency and success. In places where such schemes are essential as distinct from merely desirable, the councils will be able to obtain the participation of unwilling owners under threat of the, exercise of compulsory powers.

As regards Clause 2, which relates to the maintenance of drains—and this, of course, is new law; it is in addition to the powers granted to the Ministry and now transferred to the county councils under the Act of 1918—the clause gives the power to a council to serve a notice in writing upon the person responsible for the neglect of a drain as defined by the Bill, to put it in proper order except where the work can be more conveniently executed under a scheme of wider application within the meaning of Section 16 of the Act of 1918. It provides that within a month of the notice the person so served must comply with it, but he may within twenty-one days appeal against the notice to a court of summary jurisdiction on various grounds specified in the Bill or, alternatively, he may require any objection based upon those specified grounds to be submitted for arbitration to a single arbitrator, who will be appointed, in default of agreement, by the President of the Surveyors' Institution. The court or the arbitrator may confirm or annul the notice, or vary its requirements. In the event of default after the lapse of one month from the service of the notice or the tribunal's award, as the case may be, the council may execute the work itself and recover the cost from the defaulter—that is subsection (6). Where there are several defaulters the council may apportion between them the expense incurred.

Clause 3 provides for the expenses of the council, so far as they are not recoverable from the defaulter, being defrayed out of the county or borough fund, and enables the council to borrow for the purposes of this Bill. Subsection (3) authorises the council to delegate its powers under the Bill to any of its committees; and subsection (4) enables the councils of adjacent counties to combine so as to exercise their powers jointly. All the rest of the provisions of the Bill are ancillary to those which I have described. I am aware that the County Councils' Association desires to amend the Bill in certain particulars, and, if I am unable to accept their Amendments, or some of them, it is not because I am unsympathetic with many of them, but because they are either of a controversial character, or else are better fitted for inclusion in the more comprehensive measure which is contemplated for next Session. I trust that your Lordships will give a Second Reading to this Bill, believing, as I do, that it will lay the foundation of a better organised system of land drainage than has obtained in this country for the last four hundred years, and thus conduce both to human health and to the larger production of human food.

Moved, That the Bill be now read 2a.—(Lord Bledisloe.)


My Lords, I do not rise in any sense to oppose this Bill on the Second Reading. It is a Bill introduced by a Conservative Government and, I assume, as a Conservative measure, the clauses of which I welcome, both on my own behalf and on behalf of the Party that I represent, because it incorporates in every part of it what the noble Lord himself spoke of so strongly the other day—the principle of compulsion, of inspection, and of interference with the rights of both the farmers and the landowners in a compulsory manner, and o in a way to which, I am sure, in some cases they very much object. But there are one or two special points in the Bill upon which I am not quite clear. So far as Clause 1 is concerned', criticism does not arise, because it is merely a, transfer of an existing obligation from one authority to another. I should agree with the noble Lord that the authority of the county or the county borough is better than that of the Ministry of Agriculture, and that the work is more likely to be better carried out in a local way under their superintendence than under the superintendence of a central authority in London.

I should like to be sure that I understand Clause 2. I quite appreciate what the noble Lord has said as to the injury to agriculture which arises from waterlogged land. What I want to ask him is whether I understand the method which he is proposing in this Bill. I quite agree with him that it is not a Bill which goes into the general question. It is a Bill which deals merely with drains under the definition to which the noble Lord has referred, though it is a wide one, in Clause 2 (9). It is a wide definition because it includes under the head of "drain," any river, stream, ditch, drain, cut, culvert, dyke or sluice, and I want to see how the noble Lord proposes to deal with those things. In the first place, which seems to me to be eminently right, there is a provision that notice shall be served "upon any person by whose act or default such flow "—that is, the flow along the drain—" is impeded or any such land is so injured or in danger of being injured. "I assume that applies in two ways. First of all, there may be default in throwing the injury off one man's land and over another man's land. That would be a "default." Apart from that, as I understand the noble Lord, if the land of the owner is injuriously affected so as to become waterlogged, the expense may be thrown upon him though both the drain and the land may belong to the same owner. That I understand to be the interpretation of paragraph (a).


Subject only to his nob causing injury to some one higher up in the water shed.


I assumed that. That was not the point I was dealing with here, because I assumed that he could not do injury to any one further up in the watershed. That would be a clear interference with another person's rights, which is not contemplated under this Bill at all. I happen to live in the county where there has been a great deal of discussion about the Ouse drainage area and I think the noble Lord is right w hen he says that it is well to introduce a simple Bill of this kind free from the manifold difficulties which are certain to arise in connection with any large drainage scheme both as to the incidence of payment and the area to which it extends.

Paragraph (b) provides that if such person—that is, the person causing the act or default—is not known to the council and cannot be ascertained by them after reasonable inquiry, the expense is to be thrown upon the owner or occupier of the land on which the drain or any part of it is situated, or upon both such persons. Does that mean that although neither the owner nor the occupier is in any way in default, but sonic outside person a distance off, perhaps, is in default, if the person in default cannot be ascertained the whole expense of an act or default with which neither the owner nor the occupier has any connection is to be thrown upon them? That, of course, is a novel suggestion. It is not, perhaps, for any one holding the views I have indicated at different times in your Lordships' House to object, but it is going further in principle than I have heard of in a matter of this sort.

You cannot find the person whose drain has injured adjacent property, and not being able to find him you are to go to the owner and occupier of the land who, ex concessis, have nothing to do with it and are not in default. They have done no act which can effect the injury and yet they are to be made liable and are to pay the expense, 'whatever it is. That is an entirely novel principle. It is certainly one which does not exist at present, and which I cannot see has very much to do with the agricultural industry. Assuming, as the noble Lord has said, that it is necessary that the matter should be put right, why should the expense fall upon people who are not connected with the injury either by act or default? It certainly seems to be a hard measure, although, as I say again, if it is necessary to introduce hard measures of this kind to obtain a better agricultural result from a national standpoint, that, perhaps, may be a justification.


The noble Lord will pardon me for interrupting him, but I do not think he has quite mastered the first part of this clause which obviously refers to a drain upon a certain person's land, the working of which is impeded to the detriment of the surrounding land. That drain is situated upon land in the occupation or ownership of a particular individual. Therefore, primarily he is the person who will be made responsible and served with notice. It will be open to him under the Appeal Clause to appeal to a court of summary jurisdiction or to an arbitrator if, in fact, he is not the person who caused the impediment.


I do not think that explanation affects in any way the principle, or want of principle, that I was criticising. You are not able to find the person through whose act or default a drain is so operating as to water-log either this or the adjacent land. Not being able to find him, you go to the owner or occupier who, ex concessis, have nothing to do with it and you throw the expense upon them. I will deal in a moment with the power of appeal. That course may be necessary for aught I know to deal with a problem of this kind, but it is certainly an exceedingly hard measure and one which I think could not have found expression or have been advocated except from the Benches opposite.

With regard to the power of appeal, it is not a matter of principle, but I would suggest to the noble Lord that if a county council is involved it is not a good thing to have an appeal to a court of summary jurisdiction. I think it is much better to appeal to an arbitrator. If there is an appeal at all I suggest it should be to some such person as a County Court Judge and not merely to summary jurisdiction magistrates within the county itself. I do not think that is a satisfactory appeal, but it is a question of detail on which I do not desire to insist at present.

Then, what may the county council do as against an owner and occupier who are not in any way in default? It is provided in Clause 2, subsection (6)— If within one month after the service of a notice under this section, or in the case of an appeal or reference to arbitration under this section, within one month after the confirmation or variation of the notice, the requirements contained in the notice or in the notice. as varied, as the case may be, are not complied with, the council may, if they think fit, execute the necessary works and recover the expenses thereof from the person in default"— who, in this case, shall be the owner or occupier— summarily as a civil debt. By "the person in default" I mean, of course, the person on whom the liability is thrown by the terms of the Act itself.

Let us see what that may mean. A drain, as your Lordships will remember, is described in the definition as including "any river, stream, ditch, drain, cut, culvert, dyke or sluice." Supposing a river to be in a state of flood, as from time to time it would be, especially in a season like the present, it is not the default of the owner nor has it anything to do' with his act: is there to be power to incur what might be a huge expense far exceeding the value of the adjacent land? Is there any limitation of the expense which may be incurred? I cannot find any. The noble Lord spoke of a limitation under the Act of 1918; I think that is£5,000, though I am not sure sure about it. Here there is no limitation whatever; so that merely because the wrongdoer cannot be found, there might be cast upon the owner or occupier of land who has done nothing wrong a ruinous expense, far in excess of anything that would compensate in any way for the damage done. In order to carry this out you may have inspection by a representative of the local authority. In other words, as against an owner and occupier, you may have an inspector who may say: "I do not know who caused this damage, but under the Bill I am entitled in these circumstances to go against the owner and occupier, and against them I go." I agree with the noble Lord as regards the damages exception to which he referred. It is a very important matter that water-logged land should be dealt with. I wonder that such a Bill could have been introduced by the noble Lord on behalf of the Party to which he belongs, because it appears to me to be a Bill imbued with what we so often upon this side of the House are taunted with advocating—namely, the Socialistic spirit.


My Lords, I am sorry to say that I cannot look with very great favour on this Bill, and I am wondering whether it is really necessary that it should have been introduced. Clause 2 refers to the maintenance of drains, which certainly looks a very inoffensive proposal, but, as has been pointed out by the noble and learned Lord, Lord Parmoor, it includes rivers and streams. I remember that last July, when we had the Public Health Act before your Lordships' House, I drew attention to the power in that Bill given to local authorities to compel owners to clear out watercourses. That word "watercourses," like the word "drain" in this Bill, applied also to rivers and streams, and I was very grateful to my noble friend Lord Salisbury for the assistance he gave in getting that clause modified, though I should myself have liked it to go still further. Under that Act the clause as to the cleaning out of watercourses was confined to urban areas with a population of over 20,000. It could be extended to smaller urban areas and to rural areas with the consent of the Minister. How is it that within six months after Parliament had decided that these powers could only be extended to rural areas with the consent of the Minister, a Bill is now brought in giving all these powers to a county council without the consent of the Minister?

Clause 2 says "where…land is injured by water." I read that to mean that no new pond and no new reservoir can be made in the future as the land will be injured by water. I should have thought that it ought to be confined more to the injuring of your neighbour's land than to do doing injury to your own land. Then follow the words "or is in danger or being so injured. "I think those words are rather hypothetical. Later on the Bill says that if notice has been served on an individual to clean out a river or a stream, it must be done within one month of the date of the service of the notice. I do not think that it would be possible always to do it within one month. The river or the stream might be in full flood, and it might remain in full flood for the whole of the winter. Moreover, it might be extremely difficult to obtain labour, and the expense on the owner of cleaning out the river or stream might be prohibitive.

It is quite clear that the expenses of a county council under this Bill are expected to be fairly heavy, for power is given to the county council to borrow money for the purposes of the Bill. That means additional rates. By the Agricultural Rates Act the rates of agricultural land were reduced. By this Bill fresh rates are imposed. What was given to us by one Act is now being taken away from us by another Act. We are continually being told that economy should be practised. I agree, but I hardly see under this Bill where the economy of county councils is to come in with these fresh burdens imposed upon them, although the Treasury, I agree, is being relieved. I do not know yet whether I shall or shall not move any Amendment to this Bill in Committee. Very heavy expense is going to be imposed on owners of property and on the county councils. To do any good the Bill, I think, would have to be most drastically altered.


My Lords, it is only with the consent of the House that I can say anything in reply to the noble Lords who have spoken.


You have a right to speak again.


I was under a misapprehension. As regards the observations of my noble and learned friend Lord Parmoor, I understand that after my explanation of the purport and intention of Clause 1 he is in general agreement with it.


Yes, that is quite true.


As regards Clause 2 I am bound to admit that the definition contained in the Bill of a drain is a very wide one, and if some other definition can be found to include all watercourses which can conceivably be blocked by riparian owners or others through whose land such watercourses pass, I am sure we shall be very glad to accept the alternative definition. I am bound to confess that the word "river" is somewhat alarming, but I am informed that there are certain watercourses, particularly in the higher reaches of certain rivers. which are called rivers, and over which the owner is the person who has the most important control. I fail to understand what exactly my noble and learned friend means by his main objection to Clause 2. There is a familiar saying, certainly a saying which is familiar to lawyers:

"Sic utere tuo ut alienum non lœdas."

I fancy the noble and learned Lord must admit that that is a maxim of the common law which is universally accepted as just. His observations appear to me to militate against the equity of that maxim, because if a drain is found to be obstructed upon a certain man's land surely the liability must primarily be upon that person to remove the impediment and enable the drain to work.


The drain might run through a man's land under an easement, and he might have no power whatever to touch it.


All the Bill does in such a case is to say that prima facie the liability is that of the owner or occupier, as the case may be. There is a proviso, which the noble Lord may have overlooked, a proviso to subsection (1) which provides for the ease where he himself cannot remedy the defect without a scheme of more general application being made and others sharing in the chargeability. That goes to a large extent to meet his objection, but in any case there is an appeal and among other grounds of appeal, as is shown in subsection (4) (a) and subsection (4) (b), is that the service on him of the notice is not authorised by this section or that the condition of the drain is deemed to be the act or default of some other specific person. If these provisos and limitations are not sufficient to safeguard a person in a position such as the noble Lord has indicated, I am sure we shall be only too pleased to accept Amendments to see that no person who has not committed an offence shall be chargeable with the cost of making good the defect.

As regards the tribunal to which appeal should be made it is perfectly true that there has been considerable difference of opinion as to what this tribunal should be, and it is for that reason we have put into the Bill two alternative tribunals—the petty sessional court on the one hand or, alternatively, an arbitrator, to be appointed in case of doubt by the President of the Surveyors' Institution. I am given to understand that the County Court Judge would not be for many reasons a suitable tribunal, but if the noble Lord will be good enough to raise that on an Amendment in Committee I can deal more fully with the matter.

My noble and learned friend twits me and my Party with being responsible for submitting this measure to Parliament. Well, I should like to remind him and Lord Dynevor that the most drastic Act relating to this subject—apart from the Bill of Sewers of the reign of King Henry VIII—is the Sewers Act of 1833, which, in Clause 15 or Clause 16, confers, upon drainage authorities even larger powers than are contemplated by this Bill in relation to defective drains. In any case, all over the country these drainage authorities exist and are exercising their powers. I do not say that they are exercising their powers in every case with full satisfaction to the areas in which they operate, but these drainage authorities are working, and have been working in some cases for several centuries, without any reasonable objection on the part of those over whose land they exercise such powers.


I may remind the noble Lord that the principle of the Sewers Act is that a person should only be taxed or put to expense on benefit received.


That is the intended effect of this Bill. It is for the noble Lord to make it perfectly clear, if that is not going to be the effect, how this Bill differs in that case from previous legislation. But as I have already explained to the House. there are three counties which have obtained private Acts of Parliament, all containing much more drastic powers than those in this Bill which is intended to be of general application. I hope that your Lordships will give a Second Beading to the Bill, and if there are any Amendments which, without destroying the intention of the Bill, can be reasonably accepted by the Government, I am sure we shall be pleased to accept them.

On Question, Bill read 2a, and committed to a Committee of the Whole House.