PUBLIC UTILITIES STREET WORKS BILL

HL Deb 15 June 1950 vol 167 cc712-55

4.9 p.m.

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

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

VISCOUNT GAGE

My Lords, on this Motion, with the leave of the House I should like to ask the noble Lord in charge of the Bill one general question on behalf of the County Councils Association, and to accompany it with a few words of explanation. When this Bill was given a Second Reading in your Lordships' House various hopes were expressed that, although it was a complicated measure, it would be understood at least by the local government officials and other professional people who would have to operate it. I am sorry to say that from such evidence as has reached the County Councils Association it does not look as if those hopes will be entirely realised. Now that time has been given for this Bill to be studied by such people as county clerks and county surveyors, who will play a considerable part in its operation, a good deal of apprehension and concern has been expressed by them about the complications and difficulties which they feel will result from operating the Bill as it stands. We therefore seem to be arriving at a somewhat Gilbertian position, in that this Bill, which was brought in for the very purpose of simplifying and facilitating procedure, is being regarded, rightly or wrongly, in a very different light by the people whom it is supposed to assist.

In saying this, I am well aware that the noble Lord in charge of the Bill might make some pertinent observations in reply. He might point out that this Bill merely puts into Parliamentary words conclusions which have been arrived at by a Working Party on which the County Councils Association were fully represented. He might also point out that, despite what I am saying, no Amendments have been tabled on behalf of the County Councils Association. Further, he might perhaps complain that this is the first time that any public reference has been made to this aspect of the position. They are all points which are perfectly true, and upon which I could comment if there were any point in my doing so. But I do not see that there is much point in trying to apportion blame as between the Working Party, the County Councils Association or, for that matter, the Parliamentary draftsman. The only argument I wish to advance is a very obvious one—namely, that very little advantage will be gained by the Government or anyone else by putting on the Statute Book forms of words which may give rise to a lot of unnecessary complication and work, and possibly unnecessary litigation, if it is possible to find alternative forms of words which are more intelligible and more acceptable.

I should therefore like to ask the noble Lord whether, between now and Report, or even a later stage of the Bill, if the County Councils Association submit to his Department a list of those provisions in the Bill which they feel are likely to be ambiguous, obscure or difficult to operate he will receive such representations with sympathetic consideration. I will go further and ask whether, in view of the great difficulty of draftsmanship in this Bill, his Department would be prepared themselves in appropriate cases to draft Amendments to meet these points; and where Amendments are not appropriate, whether he will give some further explanation, either in this House or in an. explanatory circular. I would also ask that a reasonable time should be given to enable this to be done. I am aware that it is a little unusual to ask the Government to assist in drafting Amendments to their own Bills, but this is a slightly unusual Bill. Like other lay members of your Lordships' House, I have been amazed to discover the extraordinary administrative complexity and legal difficulties which surround that very familiar spectacle, a man digging up a road. As has been previously explained, however, negotiations about the codifying of the law on this point have been going on for a number of years, and all I am asking is that this co-operation stage may be carried on a few weeks longer. I notice that my noble friend Lord Selkirk, who will speak for the County Councils Association for Scotland, has some Amendments on the Paper. We all pay tribute to superior Scottish intelligence, but I wonder whether my noble friend could express himself as entirely happy about this Bill, even if all his Amendments were accepted.

4.17 p.m.

THE PARLIAMENTARY SECRETARY, MINISTRY OF TRANSPORT (LORD LUCAS OF CHILWORTH)

My Lords, I readily acquiesce on behalf of His Majesty's Government in the request which the noble Viscount has made. If the noble Viscount will bring to my notice any point in this Bill which he thinks the County Councils Association regard as ambiguous, which they do not understand, or upon which they would like interpretation, I will see that it is made as crystal clear as it is possible to make it. I will go further. If, in the light of the explanation given, the noble Viscount, on behalf of the County Councils Association, would like, between this stage and the next stage, to suggest any Amendment to the Bill that will not cut across the interests of other Parties, and will not upset any agreement between the parties, I will give it the most careful and sympathetic consideration. I will go even one stage further, and allow him to have the services of Parliamentary counsel in the drafting of any agreed Amendment, which I will also do in consultation with the noble Earl who is leading the Opposition. I should further explain to the noble Viscount that it is the intention of the Minister that when this Bill becomes an Act, there will be a full and concise explanatory memorandum prepared and circulated to the whole of the interested parties. I hope that goes a step further towards meeting what the noble Viscount has said.

Having said that, I should perhaps make one or two comments upon the first observations of the noble Viscount. As I was at great pains to explain to your Lordships' House on Second Reading, this Bill was the subject of long and anxious negotiations between the Associations representing all interested parties. Every principle contained in this Bill was agreed. We went even further than that. The Departmental instructions to Parliamentary counsel were again submitted to interested parties. Whilst I have not the slightest doubt that we could all quarrel—as we do all quarrel, in all parts of your Lordships' House—with the mystifying operations of Parliamentary counsel, this is the legal form in which to make the Bill operative taking into consideration all the interests concerned. As I said on Second Reading this Bill is complicated and complex, but there were so many interests to reconcile and so many give and take bargains to legalise. That is the reason for its complexity. I have not the slightest doubt that the noble Viscount and I could rewrite this Bill in language which would be intelligible to the least intelligent—and in so doing we should provide for evermore a rich harvest for the legal profession. That is the reason why the language appears so mystifying. I will willingly give the noble Viscount that assurance, but I can only hope that the suggestions and Amendments we receive will be far better efforts than those which were made by the various interested parties to draft a Bill themselves. Parliamentary counsel have informed me that this Bill, compared with that other Bill—which was the result of twenty years' study—is as clear as a crystal stream.

4.22 p.m.

LORD LLEWELLIN

My Lords, we are much obliged to the noble Lord for meeting the suggestion made by the noble Viscount, Lord Gage, in the way that he has. I made some comments myself on the difficulty of understanding this Bill when it was before us on Second Reading; but at that stage I thought that those who were parties to it and would have to operate it would presumably understand it and be able, in fact, to operate it. It is true that the Ministry of Transport, quite properly, have taken immense pains to get the various parties together and secure agreement between the statutory undertakers and the street authorities, and other people. Be that as it may, the Association of Municipal Corporations as well as the County Councils Associations and other people find some parts of the Bill obscure and difficult to construe. As this is in no way a political measure and there is no disagreement on its principles, I think it is right that we should try to get it as clear as we can before it leaves this House. I believe that unfortunately neither of those bodies have let us have their Amendments in time to discuss them in Committee. Therefore it is only right that these matters should be carefully considered between now and the Report stage, and if sufficient time can be given between now and that stage for that to be done I think it will be very helpful. After all, the public authorities are the people who will have to operate this Bill when it becomes an Act, and therefore it ought to be in language that they can understand. I shall have a few suggestions to send to the noble Lord; and if they are very complicated the noble Lord may be able perhaps to recommit the Bill—especially if we have a large number of Amendments. That would not make the process any longer, but would enable us to thresh out these points at the proper stage. I am much obliged to the noble Lord for the way he has met the points raised by my noble friend Lord Gage.

On Question, Motion agreed to.

House in Committee accordingly:

[The LORD TERRINGTON in the Chair.]

Clause 1 agreed to.

Clause 2 [Parties to proceedings under the street works code]:

LORD LUCAS OF CHILWORTH

During the Second Reading the noble Lord, Lord Llewellin, in one of those humorous interludes with which he refreshes your Lordships on all too few occasions, accused us of leaving out half the sentence in line 14 of page 4. The noble Lord said that: One might then expect to find in the margin one of those little gremlin chaps with his nose over the wall, so popular in the Army in the days of the War, saying: 'Wot, no more?' The noble Lord had failed to spot the unobtrusive comma after the word "not" in line 14. But we are grateful to the noble Lord because, in reconsidering this matter, we thought that some improvement could be made. Those less observant than the noble Lord might have fallen into the same error. So we have repeated the words "no authority, body or person so liable." This, we hope, makes the matter more understandable. I trust that this Amendment will be acceptable to the noble Lord and other noble Lords. I beg to move.

Amendment moved— Page 4, line 14, leave out ("not") and insert ("no authority, body or person so liable,").—(Lord Lucas of Chilworth.)

LORD LLEWELLIN

I am much obliged to the noble Lord. I think this reads much more clearly now than before. It is quite true that I did not observe the comma between "not" and "and," but I am obliged to the noble Lord and I shall now remove the gremlin from the margin of the page.

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3:

Settlement of a plan and section to be a condition of execution of major works

(2) This section applies to all code-regulated works except—

1. (a) inspecting, maintaining, adjusting or repairing apparatus;
2. (b) placing, altering, renewing, changing the position of or removing a service pipe or service line or an overhead telegraphic line in or from a place not in a trunk road or a classified road, or in or from a place in such a road in so far as the works are to be executed elsewhere than in the carriageway of the road and so as not substantially to affect the traffic on the carriageway thereof;

4.28 p.m.

THE EARL OF SELKIRK moved, in subsection (2) to omit paragraph (b). The noble Earl said: Perhaps I should say, in view of what has taken place, that the County Councils Association of Scotland regard this Bill as a handy compendium which will be of value for future reference. It is true that there were one or two points which were not clear, and I have, therefore, put down a number of Amendments, some of which will be purely exploratory but which will, I hope, be helpful in making clear what is intended.

This Amendment is for the following purpose. Clause 3 states that plans must be settled before undertakers start cutting roads about. But there are exceptions when plans are not required; in fact, the clause means that plans will not be required for work connected with service pipes and will be required only on trunk roads. It is felt that that is not enough, because the digging up of roads which are not trunk roads for the purpose of laying service pipes can still be a great nuisance to the travelling public, and the digging up should be closely co-ordinated by means of planning. Under Clause 6 (1) (b), so far as I can see, the undertaker who wants to dig up the road for works relating to service pipes can proceed on three days' notice. That is my reading of the Bill. There is a great difference between proceeding under a plait which has to be approved before action can start, and being able to get straight on with the work at three days' notice. It seems to me that the difference is too sharp, and I suggest that there are other roads of great importance which should be treated with similar care to that indicated for those indicated in general terms in the clause.

Amendment moved— Page 4, line 33, lease out paragraph (b) of subsection (2).—(The Earl of Selkirk.)

VISCOUNT FALMOUTH

This is a very important Amendment indeed. I look upon it as a wrecking Amendment. The Bill, as the noble Lord in charge of it has said, is the result of discussions which have taken place over the last twenty-five years in connection with this difficult problem. I have been connected with those discussions for a long time. If you are going to cut the Bill about in this way, you will unbalance it and it will be quite impossible to satisfy the different parties who have eventually reached agreement. At the present moment these small service pipes and service connections to houses and subsidiary roads are undertaken, and have been undertaken for a great many years past, without any plans whatever and even without consulting the road authorities. That has been the standard practice in connection with secondary roads in this type of work. This particular clause, if put into effect, would be an intolerable burden on all undertakers. It would mean that you would have to prepare plans for a one-inch service pipe; you would have to prepare not only plans but sections just for a connection to one small house. Quite an impossible task would be placed upon the authorities. Immense delay would be caused and a great increase in expense would result. In fact, we can say it would be a case of bureaucracy gone mad. I do hope that the noble Lord opposite will not accept this Amendment because, as I say, it would only unhinge the whole Bill and cause intolerable delay. There have been many complaints from all over the place of delay for one reason or another. Anything of this kind is quite unnecessary. These plans are of no use to anybody. I hope that the House will not agree to this Amendment.

LORD LUCAS OF CHILWORTH

I believe I can easily satisfy the noble Earl upon this point. I think he has omitted to see that paragraph (b) of subsection (2) of Clause 3 relieves undertakers of the obligation imposed by subsection (1) to serve plans and sections in respect of minor works such as laying and maintaining service pipes which do not involve breaking up the carriageway of trunk and classified roads. So, if the service pipes do not involve breaking up the carriageway of a trunk or a classified road, we seek to remove the obligation on an undertaker to submit plans and sections. As the noble Viscount, Lord Falmouth, has said, the reason for asking undertakers to submit plans and sections is so that the highway authorities may always see where any of these major operations are going to be carried out, and how they are going to be carried out. But, in laying the service pipe from the main to the house, underneath a pavement, there is no scope for doing very much, because the position is regulated by the main at one end and by the house at the other. We thought that it would be only right to relieve the undertakers from the obligation of doing this and, as the noble Viscount has rightly said, we do not want to interfere too much with the day-to-day operation of these undertakers. We thought that this was an easement which could be granted, but let it be clearly understood that this applies only to service pipes which do not involve the breaking up of a trunk highway or a classified road. With that explanation, I hope that the noble Earl will not press his Amendment.

THE EARL OF SELKIRK

I will accept what the noble Lord says. I see, however, that in paragraph (d) there is also an exception: any breaking up or opening … tunnelling or boring in so far as it is to be executed for the purposes of works. Does that mean that on the other roads breaking up and tunnelling can take place?

LORD LUCAS OF CHILWORTH

It all depends on the purpose for which it is done. This is confined to service pipes.

THE EARL OF SELKIRK

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE EARL OF SELKIRK moved, in subsection (3) (b) to leave out "so executing" and to insert "beginning." The noble Earl said: This is a short point. In certain cases, emergency works may be undertaken. In those cases, it is not necessary to submit any plans at all, but paragraph (b) of subsection (3) states that in such cases plans shall be furnished by the undertakers after so executing any such works. I suggest merely that the paragraph should read after beginning any such works. In other words, where necessary, the plan should be submitted as early as possible. I beg to move.

Amendment moved— Page 5, line 16, leave out ("so executing"} and insert ("beginning").—(The Earl of Selkirk.)

VISCOUNT FALMOUTH

This again is an Amendment which I hope the noble Lord opposite will not see his way to accept because, in the case of these mains, you have very often a serious emergency—an explosion say, or a fracture of a big water main—and it is quite impossible to arrange plans or prepare them before the work is executed. It seems to me that this is an impracticable Amendment, and I hope that the House will not accept it.

LORD LLEWELLIN

I do not see that there is a great deal of difference between us here because the words are as soon as is reasonably practicable after so executing any such works. and my noble friend suggests that they should be as soon as is reasonably practicable after beginning any such works. I suppose plans are wanted "as soon as is reasonably practicable." Perhaps these words could be looked at again before Report stage.

LORD LUCAS OF CHILWORTH

There is only one difficulty here. I agree with what the noble Lord, Lord Llewellin, and the noble Viscount, Lord Falmouth, have said, but the practical difficulty is that an emergency work is not a pre-planned work. It may be impossible for the undertaker to submit his plans and sections to the highway authority until after he has completed it, because until then he will not know what there is to do. I think that the Amendment is unnecessary because, after all, if we alter the wording, as the noble Earl would like us to do, it could still be argued that it is not practicable to submit this plan until the undertakers have finished this emergency work because, it being an emergency work, they cannot tell what it is necessary to do until the last leg, the last hour, of doing the job. I think the noble Earl will find that his point is well safeguarded in the wording in the clause now. After very careful thought and discussion with those who have got to carry out this provision we thought that this was the best way to do it. I hope the noble Earl will not press his Amendment.

THE EARL OF SFLKIRK

It seems to me that the difference is this: in these cases the undertakers have no obligation to take any action until after they have completed the work. I am asking that they should take action as soon as they reasonably can. The noble Lord obviously has not read the Amendment at all. I did not say they should do so before any emergency, but as soon as is reasonably practicable after beginning … That merely places on the undertaker something slightly higher. However, if the noble Lord finds it difficult to accept it, I will not press the Amendment. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5:

Procedure as to plans and sections etc.: provisions as to works in controlled land

5.—(1) Where a plan and section submitted under subsection (1) of section three of this Act are of works proposed to be executed in a street which is a maintainable highway or is prospectively a maintainable highway, the street authority (but not any other authority or managers concerned) may disapprove the plan and section on the ground that the works ought to be executed in controlled land abutting on the street, or they may approve the plan and section subject to modifications excluding some of the works on the ground that they ought to be executed in suet land:

Provided that the street authority shall not so disapprove or require modifications unless they are satisfied that they will be in a position, by exercising powers in that behalf vested in them by virtue of the First Schedule to this Act or otherwise, to confer on the undertakers the right to execute the works in question in the controlled land and all the like rights in relation to apparatus the placing whereof is to be comprised in the works as the undertakers would have if it were placed in the street, and to render those rights exercisable from rot later than the expiration of the period of twenty-two days mentioned in subsection (4) of this section.

(2) On a reference to an arbitrator under subsection (4) of the last preceding section relating to such works as aforesaid as to which the street authority have disapproved the plan and section, or have approved them subject to modifications, on the ground that those works ought to be executed in controlled land (whether or not the reference relates to those works only or the disapproval or requiring of modifications was on that ground only), the arbitrator shall determine whether or not all those works or any of them ought to be executed in the controlled land.

(3) Where either— (a) an arbitrator determines under the last preceding subsection that any works ought to be executed in controlled land, or those works shall, subject to the provisions of the next succeeding subsection, be excluded from the power of the undertakers to execute works in the street, and a plan and section of those works as to be executed in the controlled land shall be settled as may be agreed between the undertakers and the street authority and any sewer authority concerned, or, in default of agreement, by the arbitrator so determining, or by an arbitrator acting on a reference of the matter to arbitration by the undertakers, as the case may be.

THE EARL OF SELKIRK moved, in the proviso to subsection (1) to leave out "twenty-two" and insert "two months." The noble Earl said: This is a small point. It is a question here of giving notice to the interested party. I should like to draw the noble Lord's attention to the First Schedule, Paragraph 4, which says that in the case of controlled land the local authorities have to give other parties notice of one month. It therefore appears to me that the twenty-two days notice required here is not adequate. Accordingly, I move that the twenty-two days should be changed to two months. I beg to move.

Amendment moved— Page 9, line 12, leave out ("twenty-two") and insert ("two months").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

Again. I think I can satisfy the noble Earl. I see his difficulty here, but Clause 5 (1) empowers a highway authority to object to an undertaker's proposal to lay or replace apparatus in a street on the ground that the apparatus should be laid in controlled land alongside the street. Before lodging an objection highway authorities must be satisfied that they can, under the procedure of the First Schedule, make that controlled land available to undertakers within twenty-two days from the time that it is settled that apparatus shall be laid in controlled land. It is either settled by agreement between the parties or settled by arbitration, as provided later on in the Bill. The whole object of the First Schedule, to which the noble Earl has referred, is to provide a procedure whereby highway authorities can make controlled land available to undertakers quickly, so that forcing undertakers to do works in controlled land instead of in the street will not unreasonably delay the execution of the undertakers' works. Twenty-two days was agreed by all interested parties, except those from Scotland.

People interested in controlled land cannot object in principle to the making of this land available to undertakers, but can only challenge the legal powers of the highway authority to make it available. In practice, highway authorities will have much longer than twenty-two days to make land available. They can start preparing for this in any particular case as soon as they receive plans and sections of an undertaker's proposal. This gives them an additional twenty-nine days, so that in practice they are getting fifty-one days and not twenty-two, because the undertakers have to give twenty-nine days' notice to the highway authority of their plans and sections. So it will be seen that this is not limited to the bare twenty-two days, and, quite frankly, we think that twenty-two days is long enough. To extend it to two months would give another twenty-nine days in addition to the two months. We think that is an interminable time. The twenty-two days, as Lord Falmouth has said, represents a carefully balanced understanding between highway authorities, on the one side, and the undertakers on the other, as to what is a reasonable period. I hope that on reflection the noble Earl will not press this Amendment.

THE EARL OF SELKIRK

I do not propose to press the Amendment. The noble Lord has got to work this Bill, not I.

Amendment, by leave, withdrawn.

THE EARL OF SELKIRK moved to add to subsection (2): provided that the arbitrator shall not have power so to determine as regards works or any of them where the street authority have made no submission that the works or any of them ought to be executed in the controlled land.

The noble Earl said: This is a small point in reference to what is or what is not controlled land. The Amendment seeks to make it clear that if this matter comes before an arbitrator he cannot state that this work should be carried out in controlled land unless it is so argued in front of him by one or other of the parties concerned. It may be that the Amendment is unnecessary, but a reading of the provision as it stands suggests that it would be possible for the arbitrator to come to that conclusion on his own initiative, which I believe to be undesirable. I beg to move.

Amendment moved— Page 9, line 23, at end, insert the said proviso.—(The Earl of Selkirk.)

LORD LUCAS OF CHTLWORTH

The noble Earl is quite right. This clause does the very thing he wants done. The arbitrator can determine only the case that is submitted to him. The argument may be only whether the apparatus shall be laid in controlled land or in the highway. If there is no dispute about that it does not go to the arbitrator. Let me cite a hypothetical case. The highway authority say, "We require 100 feet of this apparatus (which may be a pipe) laid in controlled land." That is the dispute between the undertaker and the highway authority. That is what goes to the arbitrator. The arbitrator has no power whatsoever to say that 110 feet shall be laid. He can say less; he cannot say more. The case is this: Is it reasonable for 100 feet to be laid in controlled land? He might say that it is not; that it is only reasonable to have eighty feet. But he cannot go over his terms of reference and say that 120 feet would he reasonable. So the short point is that the arbitrator has no power to determine anything outside his terms of reference of the dispute referred to. Therefore I hope the noble Earl will not press his Amendment.

THE EARL OF SELKIRK

I am glad to accept the noble Lord's suggestion, and I will withdraw my Amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

LORD LUCAS OF CHILWORTH moved, in subsection (3) to omit all words after "settled" and to insert: in the proceedings before the arbitrator who so determines, or, in a case in which the undertakers agree to the execution of the works in the controlled land, shall be settled as may be agreed between the undertakers and the street authority and any sewer authority concerned, or, in default of agreement, by an arbitrator acting on a reference of the matter to arbitration by the undertakers.

The noble Lord said: This Amendment is put down to prevent the same case going to the arbitrator twice. A case may go into arbitration on whether or not apparatus should be laid in a street or on controlled land. As the Bill is drafted at present that is what the arbitrator must determine. But if the arbitrator determines that the work shall be done in controlled land, there may then be a dispute between the undertaker and the highway authority as to how it shall be laid. We think it better to have all the matters likely to be in dispute before the arbitrator at the same time, because to determine whether or shall be laid in controlled land the arbitrator must have technical plans and sections to enable him to come to a decision. We say here that if the arbitrator decides that it shall go into the controlled land then he shall have the power to make plans and sections as to how it shall be laid. Of course that is always subject to the two parties before him not being able to agree between themselves. Therefore, the short explanation of why we think the Amendment better, is that it will save expense, time, and trouble, and I beg to move.

Amendment moved— Page 9, line 37, leave out lines 37 to 41 and insert the said new words.—(Lord Lucas of Chilworth.)

LORD LLEWELLIN

So far as I am concerned I think this Amendment is all right. In a case like this the arbitrator will presumably have the plans before him when he is going into the original matter as to whether these works should go under the controlled land or not. One of the disputes may be that the undertakers say they will not work and they have got some plan which shows, in the case of a waterpipe let us say, that it will not flow in the way desired. He will have to have the plans before him, and when he makes up his mind he might just as well determine on a plan or section once and for all, rather than go away and then perhaps the parties having to come back to him. I think this is a good Amendment.

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH

This is merely a drafting Amendment to improve the grammar. I beg to move.

Amendment moved— Page 9, line 45, leave out ("is") and insert ("are").—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH

This is consequential upon the Amendment that was moved just now on the question of arbitration. I beg to move.

Amendment moved— Page 10, line 31, at end insert ("as to a case in which undertakers agree to the execution of works in controlled land").—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6:

Works not to he begun until after notice to authorities and managers concerned

6.—(1) Subject to the provisions of this section as to emergency works, undertakers proposing to begin in a street the execution of any code-regulated works, other than works which fall within paragraph (a), (b) or (c) of subsection (2) of section three of this Act and which do not involve either breaking up or opening the street or any public sewer therein or tunnelling or boring under the street, shall give to each of the authorities or managers concerned, and, if the street is prospectively a maintainable highway, to the street managers thereof also, a notice stating the undertakers' intention to execute the works and the date on which and the place at which they intend to begin the execution thereof, and the undertakers shall not begin the execution of the works, except with the consent of each of the authorities, bodies and persons to whom the notice is required to be given, until there have elapsed from the date on which the notice was given to them, or to the last of them to be given it if more than one,—

1. (a) in the case of any works not being such as are mentioned in the succeeding paragraph, seven days, or
2. (b) in the case of works relating only to a service pipe or service line or an overhead telegraphic line, three days.

THE EARL OF SELKIRK had given notice of two Amendments to subsection (1), of which the first was to leave out "there" and to insert "seven days." The noble Earl said: This Amendment and the next go together. In reference to the service pipes it is felt that three days is too short. There are a good many things which have to be considered; and though a service pipe may itself be a very small thing, it affects quite a wide variety of conditions and people. It is for that reason that I submit that it would be better to make the notice, both in paragraphs (a) and (b) of subsection (1), seven days. I beg to move.

Amendment moved— Page 10, line 46, leave out ("there") and insert ("seven days").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

The object of notifying highway authorities and others of undertakers' intentions to start work is to give the interested parties time to make any necessary arrangements to supervise the undertakers' works and to make arrangements to direct or control road traffic where necessary. The laying of these service pipes is a very minor affair. In the vast majority of cases there will be no interference with traffic, nor is it likely that supervision will be required. Therefore the interested parties, we feel, will be agreed that three days is adequate notice for service pipe works. We did not want to extend this period, because they cannot start until the notice has expired. What we have tried to do throughout the Bill—I know that I shall carry the noble Lord, Lord Llewellin, with me here, because this was a matter to which he referred at some length and with regard to which he raised some complaint during the Second Reading debate —is to ensure that operations of this kind shall be carried out as quickly as possible. If those who have to do the job are satisfied that three days is adequate notice in respect of this comparatively minor work surely that is enough. I agree that seven days would be reasonable where supervision is called for. But, as the noble Viscount Lord Falmouth has already pointed out, works of this sort will in most cases not require any supervision at all, and therefore three days' notice will be adequate. I hope that in view of that explanation the noble Earl will be satisfied and will not wish to press his Amendment.

THE EARL OF SELKIRK

I do not propose to press this Amendment, but I think Lord Llewellin will agree that it is here a question not only of doing work quickly but of avoiding having to do it frequently. One of the objects of the Bill is to avoid repeated digging of the same hole in the ground. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7:

Requirements as to mode of executing major works, and as to reinstatement

(6) Where a street or controlled land has been broken up or opened, or tunnelling or boring has been done thereunder, by way of code-regulated works, and the reinstatement and making good of the street or land in which the works were executed, or of part of it, has been completed, and within six months from the completion thereof the street or land, or that part of it, as the case may be, either subsides or deteriorates otherwise than by subsidence or in addition thereto, then — (a) in the case of any such subsidence, the amount of any cost of executing works needed for remedying the subsidence reasonably incurred by the street authority (if the street is, or is prospectively, a maintainable highway) or by the street managers (if the street is not as aforesaid) shall be paid to the authority or managers by the undertakers, unless the reinstatement and making good at upper levels or some of it was done pursuant to an election under the Third Schedule to this Act and the subsidence is shown to have been attributable to defective workmanship or use of defective materials in the doing of the reinstatement and making good so far as it was done otherwise than by the undertakers, and

4.53 p.m.

THE EARL OF SELKIRK moved, in subsection (6) to leave out "six" [months] and to insert "twelve." The noble Earl said: This is an Amendment of rather more substance. The noble Lord, Lord Lucas, said early in our discussions that the principles of this Bill were agreed. Here is one which is quite definitely not agreed. If I may say so, I think it is a pity that he should extend his agreement simply to local authorities in England. With regard to this there is no agreement in Scotland and there never has been. The noble Lord has referred to the Carnock report. This is a type of Government action which is particularly objectionable to Scotland. The decision here apparently is to bring in English conditions and apply them mutatis mutandis to Scotland. I do not know whether there are any saving or extenuating circumstances. What I am saying is that those who are immediately concerned are not satisfied.

What is the question here? It is recognised quite frankly that if an undertaker breaks up a road he is responsible for putting it right again. That is a principle which goes right through the Bill. It is agreed further that not only has the undertaker to put it right but that he is responsible in respect of subsequent subsidence. Here the period within which the subsidence must occur if responsibility is to rest on the undertaker is limited to six months. It is, of course, a very difficult question in any contract to lay down how long a contracting authority should be responsible for maintaining the work which has been carried out. I should be the first to recognise what a difficult point this is to determine: and it is a point which most public contractors are constantly discussing. I think the noble Lord will have to admit that it is a substantial concession to limit the liability of public undertakers in this con- nection to six months. It may be that in the course of this Bill there is something which, so to speak, balances this. If so it is up to the noble Lord to prove it. In my view six months is a very short period. I think that twelve months is the normal period for asking a check to be kept with regard to subsidence.

I believe that public contractors used to have a percentage of their payment—up to about 10 per cent. I think—held back, sometimes for as long a period as live years, with a view to the possibility of subsidence. That custom, I understand, has now ceased, but I believe that it is still normal for contractors to have a percentage of their payment held up for as much as twelve months. In the Water (Scotland) Act of 1936, I believe, the period was set at twelve months. I suggest that it is in the interests of everyone that there should be no suggestion of any shoddy work being done. If a road was built in such a way that it was likely to last only six months that would clearly mean that there had been shoddy work on the part of the undertaker. I know that local authorities can elect to do the work themselves, but if they do not do so it seems to me that there is no reason why adequate provision should not be made to ensure that the undertaker makes a thorough job, and should have no temptation to do it in such a way that it will not stand up for more than six months. I suggest that in the circumstances twelve months is a reasonable period. If the noble Lord is reluctant to accept this Amendment I suggest that it is up to him to show what countervailing advantages are given to local authorities in the Bill. I beg to move.

Amendment moved— Page 14, line 10, leave out ("six") and insert ("twelve").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

I agree with the noble Earl that this is a matter which has always been a bone of contention between highway authorities and undertakers. But this is not a case of facilitating shoddy work. With the best will in the world, and when every precaution has been taken, it sometimes happens that subsoil will subside. No matter how well the work has been done this cannot always be prevented. All the best mechanical engineers in the world have never vet been able to invent a machine which will do the work of nature in that connection. This is a case where mutual agreement is involved. The local authority have, of course, the right to make up the road themselves and to charge the undertaker with it. That was a bargain which was come to on the other side. I think that as I go through the Bill, and explain various points which will arise on these Amendments, the noble Earl will come to the conclusion that, if he weighs the debit and credit sides of both accounts, in the end there will be found to be a balance.

Take the case which we shall be discussing soon, in which a highway authority require an alteration to a road, involving the moving of the undertakers' works. There is another case of a bargain. The highway authorities have willingly agreed to pay. I hesitate to accept any alteration to this part of the Bill, and I am going to be perfectly frank and say why. If I gave way to the noble Earl's plea in this connection on behalf of the highway authorities, I should find it hard to withstand the noble Viscount, Lord Gage, and I should have to face a lot of argument and a lot of pressure to withdraw the advantages which the undertakers have given to the highway authorities.

Here we have two interested parties, one responsible for laying the apparatus and the other for the maintenance of the highways, and they have come to an agreement as to division of responsibility and cost.

I grant the noble Earl that in all the discussions that we had it was an unfortunate thing that the Scottish authorities could not agree with their fellows in every case. In every discussion on which there was unanimity, the Scottish representatives said they must reserve their position to argue it on the floor of the House. I can only think this was a glowing testimonial to the noble Earl; they knew he would be a far better advocate of their case than they had been. I would ask the noble Earl not to press me on this, because I feel certain that if he does, I shall be pressed by the other side, and I am afraid that on balance the party he is interested in in this context will be worse off.

THE EARL OF SELKIRK

My first deduction from what the noble Lord has said is that we should have had a separate Bill for Scotland. That would have prevented the noble Lord from being bothered and saved the time of the House. Not only is the Bill practically incomprehensible but it is so tightly balanced that one cannot move anywhere. I do not propose to press my Amendment, but I shall watch closely to see whether there are in fact balances for what the noble Lord has acknowledged is a disadvantage, certainly from the point of view of the local authorities. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8:

Requirements as to safety, obstruction, etc., to be observed in execution of works

8.—(1) Undertakers who are executing or have executed any code-regulated works shall secure at their expense that the following requirements are observed during and in connection with the execution of the works and of reinstatement and making good thereafter under the provisions of this Act in that behalf, that is to say,— (d) that rubbish arising in the execution of the works or of the reinstatement and making good is carried away as soon as is reasonably practicable.

5.3 p.m.

THE EARL OF SELKIRK moved in subsection (1) (d) to omit "arising in" and insert "and surplus materials resulting from." The noble Earl said: To describe the sort of material which arises from work on a road, I propose that we should add to the word "rubbish," which has varied definitions, the words "and the surplus materials resulting from."

Amendment moved— Page 15, line 15, leave out ("arising in") and insert ("and surplus materials resulting from").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

I am glad we have come to this point, because the noble Earl might have begun to suppose that I was becoming almost as hard as Pharaoh's heart. I should have thought that surplus materials would come within the classification of "rubbish," but if the noble Earl wishes to press this point I will take it back and see if we can meet him by including these words, or something like them, at the next stage. If the noble Earl will withdraw his Amendment, I will accept it in principle and see if we can get something near what he wants.

LORD LLEWELLIN

I am a little doubtful whether the word "rubbish" includes surplus materials. Rubbish is usually old tins and paper and there may well be perfectly good soil on the road which can grow good crops if put somewhere else, and which may not come within the description of "rubbish." Either we should define "rubbish" to include that, or accept what is suggested by the noble Earl.

LORD LUCAS OF CHILWORTH

The noble Earl, Lord Selkirk, talks of "surplus materials," and the noble Lord mentions "perfectly good soil." I do not want good soil to be described as "rubbish." This matter has to be thought out carefully, and perhaps we may have the help of the noble Lord to see whether we can devise something that will meet both points.

LORD LLEWELLIN

Nevertheless, we want this surplus soil carried away. If it is not included now in the term "rubbish," there is no obligation to carry it away.

THE EARL OF SELKIRK

I am grateful to the noble Lord and assure him that this is no sort of play with words. What is intended by the Bill is not what is generally understood in Scotland as rubbish. There may be perfectly good soil in the middle of the road which is rubbish in certain contexts, but not in a legal context. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clauses 9 to 14 agreed to.

Clause 15 [Time for taking effect of the street works code, and exclusion of other statutory provisions]:

LORD LLEWELLIN moved, in subsection (2) (b) to substitute "six months" for "one year". The noble Lord said: Clause 15 lays down in subsection (2) periods in which the new code shall come into operation. It provides in paragraph (a) that: in the case of a power created before the passing of this Act or within six months therefrom, other than one whose exercise is regulated (so far as concerns the relations aforesaid) immediately before the expiration of the said six months wholly or in part by special legislation, from the expiration of the said six months, subject to the provisions of subsection (4) of this section as to works then in hand; In paragraph (b) it says that in the case of a power so created whose exercise is regulated as aforesaid, from such time, not being earlier than the expiration of one year from the passing of this Act, as the Minister may by order appoint, subject to the provisions of subsection (4) of this section as to works then in hand; I am aware that under paragraph (b) there may be a large number of Acts of Parliament to be looked through and that considerable time may elapse before some of them can be modified to meet the new provision. In some cases, however, the matter will be simple, and in those cases there is no, reason why the Bill should lay down a minimum time of twelve months. We must remember that this is not a maximum time but a minimum time. It may be that the amendment of a Private Act is completely agreed between the Minister and the promoters, yet the Minister will not be able to do anything until the end of twelve months. I press the noble Lord to accept this Amendment altering the period to six months, because it may be that some works will be delayed long after a decision has been taken and it is much better that in appropriate cases the Minister should be able to act at the end of six months.

Amendment moved— Page 21, line 34, leave cut ("one year") and insert !("six months").—1(Lord Llewellin.)

LORD LUCAS OF CHILWORTH

This Amendment so concisely moved by the noble Lord, excites a great deal of sympathy. He does not wish to alter the time where General Acts of Parliament are concerned, but when special legislation becomes operative he wants to shorten the minimum term to six months. As I explained on Second Reading, there are about 5,000 Special Acts which will be affected by this Bill—we do not know whether that is the correct number, because to find out we should have to search the Statutes for 150 years. Approximately, 5,000 parties who have Local and Special Acts will have to study their Acts and the Bill when it becomes an Act to see where the provisions of this Bill are in conflict with their Act, or vice versa, or where any provision of this.. Bill cuts across and makes inoperative any provision of their Act. We shall also have to set up an organisation in the Ministry to see that this is effected smoothly, so that we do not upset legislation of a special nature, which we have no desire to do. I am willing to accept the noble Lord's Amendment. However, as he and your Lord ships are well aware, when this Bill leaves your Lordships' House it will go back to another place, and I do not know what view will be taken there. In accepting the noble Lord's Amendment, I hope that, if at some later stage I have to come back to your Lordships and say that the other place wish to vary it, the noble Lord will not then accuse me of going back on my word.

LORD LLEWELLIN

If there were a great deal of pressure that nothing should be done for twelve months, however, simple the case, and the Minister had to give way to it, then I should fully appreciate the position. It is not a matter of great principle. But where a Statute like this is brought in, let us in all cases where it can reasonably be done bring it in as quickly as possible. If there is that pressure—and I hope the noble Lord's speech will not have encouraged it—I shall fully understand. I am obliged to the noble Lord for accepting this Amendment, and I accept his acceptance in the terms in which he offered it.

LORD LUCAS OF CHILWORTH

May I say this, to nullify any suggestion of encouragement? I am fully seized of the noble Lord's point that even his shortening of the period does not prevent the Minister, if he so desires in a specific case, from altering the period, which will now be six months, to one, two, three or four years. The Minister can in any specific case extend the period before this provision can apply. Although the noble Lord has now altered this minimum time from twelve months to six months, he does not tie the Minister's hands from extending it in a specific case. That is 'what has prompted me to accept the Amendment.

LORD LLEWELLIN

I fully appreciate that there will be cases where the Minister cannot do it in six months, and I am dealing only with those cases where it is possible to deal with it in six months.

On Question, Amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 agreed to.

Clause 17 [Exclusion or restriction of requirements of consent as to certain code regulated works]:

LORD LUCAS OF CHILWORTH

With your Lordships' permission I will take the two Amendments at page 24, lines 16 and 48 together. When we come to the Sixth Schedule I intend to move Amendments for which these two Amendments are preparatory. These are drafting Amendments consequential upon the Amendments I shall move to pages 69 and 71. I feel that I shall be able to satisfy your Lordships on those Amendments when I move them. I will now formally move the two drafting Amendments and argue them out when I come to deal with the Sixth Schedule. I beg to move.

Amendment moved—

Page 24, line 16, at end insert ("and except that, as regards a consent as to which an order under paragraph 4 of the Sixth Schedule to this Act has effect, this subsection shall have effect subject to the provisions of the order.")—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

Amendment moved—

Page 24, line 48, at end insert— Provided that, as regards a consent as to which an order under paragraph 5 of the Sixth Schedule to this Act has effect, this subsection shall have effect subject to the provisions of the order.")—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18:

Liabilities of undertakers to street and bridge authorities or managers

(2) If any nuisance is caused— nothing in the enactment which confers the relevant power to which section one of this Act applies or in any enactment which regulates the exercise of that power, and, if the works or the apparatus, as the case may be, are in controlled land, nothing in the relevant authorisation given under the First Schedule to this Act, shall exonerate the undertakers from any action or other proceeding at the suit either—

1. (i) of the street authority or street managers, or
2. (ii) if the works or the apparatus, as the case may be, are in a street which is carried by or goes under a bridge, of a bridge authority or managers.

THE EARL OF SELKIRK moved, in subsection (2) after "nuisance" to insert "or unnecessary interference with normal use of the street." The noble Earl said: Clause 18 deals with the liability of undertakers to street and bridge authorities or managers. Subsection (1) of that clause deals with damage, and subsection (2) with nuisance. In Scotland our connotation of "nuisance" is exclusively "a danger to public health." I do not know whether the term has a wider connotation in England, but I take it that it is rather wider in its intention here and is really to deal with what might be described as "nuisance" in the non-legal sense—as interfering with a normal event. I have therefore suggested the addition of the words "or unnecessary interference with normal use of the street." I beg to move.

Amendment moved— Page 25, line 29, after ("nuisance") insert ("or unnecessary interference with normal use of the street").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

now have to tread on slightly dangerous ground, because the noble Earl is an eminent lawyer, and I am neither a lawyer nor eminent. However, I understand that the meaning of the word "nuisance" is "any action which does someone ill to the extent of being an actionable tort." My advice comes from no less a person than the chief Parliamentary draftsman to the Lord Advocate, and it is that, although there may be a slight difference in the meaning of the term "nuisance" in England and in Scotland, there is really no reason to alter the Bill on that ground. The term "nuisance" is a known term in Scotland (that I can readily understand) and Clause 18 can work perfectly well in that country. Why I say that this Amendment is unnecessary is because the purpose of Clause 18 (2) is to deprive the undertakers, where highway authorities or bridge authorities take proceedings against them for "nuisance" caused by the execution of their street work or the explosion or bursting of their apparatus in a street, of the defence that the nuisance was caused by the exercise of their statutory powers. The defence that an undertaker is not liable for the tort of nuisance in these circumstances, because he has a statutory power to do those street works or keep that apparatus in the street, would often be a good defence unless it were Droved that he was negligent. Because of this, existing legis lation dealing with gas and electricity undertakers expressly deprives those undertakers of that defence. Water undertakers and some sewer authorities, however, are not so deprived and can still plead this defence. As the Carnock Committee recommended, subsection (2) is drawn to deprive all undertakers of that defence.

The term "nuisance" in this subsection, therefore, has a special legal meaning, and I am advised—and I have to accept this advice, as the noble Earl will readily appreciate, as coming from the highest legal authority at my disposal—that it would be meaningless to add the words in the proposed Amendment. In any case, we say that it is unnecessary. Undertakers are put under a series of obligations by Clause 8 (1) to see that the use of a street is not unnecessarily impeded by their works, and those obligations will generally be sufficient to achieve what this Amendment, so far as we can see, is designed for. With that explanation, I hope the noble Earl will not press his Amendment.

THE EARL OF SELKIRK

I readily accept what the noble Lord says, although he was wrong in his interpretation of Scots law when he described "nuisance" as an actionable tort. A tort is something of which we have no idea at all in Scotland. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19:

Liabilities of undertakers to transport authorities

19.—(1) If either—

1. (a) by the execution of code-regulated works in a street which is carried by or goes under a bridge vested in a transport authority or which crosses or is crossed by other property held or used for the purposes of a transport undertaking, or
2. (b) by any such event as is mentioned in paragraph (b) of subsection.(2) of the last preceding section occurring as therein mentioned in a case in which the apparatus in question is in such a street as aforesaid,

damage is caused to the bridge or other property, the undertakers shall indemnify the transport authority against expense reasonably incurred by them of making good the damage, and against any loss sustained by them in respect of interruption of traffic resulting directly from the damage:

Provided that undertakers shall not be liable by virtue of this subsection in respect of any loss if it would not have been sustained but for misconduct or negligence on the part of the authority or their contractors or any person in the employ of the authority or their contractors.

LORD LUCAS OF CHILWORTH moved, in subsection (1) after "property" (where that word occurs a second time) to insert "or flooding or other obstruction thereof is caused." The noble Lord said: On the Second Reading the noble Lord, Lord Llewellin, rather objected to the drafting of this clause. He said that in the Interpretation Clause there appeared the words "damage includes obstruction," and he argued that damage does not include obstruction, or vice versa. Therefore, in the Interpretation Clause we are eliminating those words. This Amendment, together with the next four, deal with the same point. We have specifically detailed the damage and/or obstruction in each case, so as to do away with the words in the Interpretation Clause to which the noble Lord objected. I hope the noble Lord agrees that we have done the right thing. I beg to move.

Amendment moved— Page 26, line 24, after ("property") insert ("or flooding or other obstruction thereof is caused").—(Lord Lucas of Chilworth.)

LORD LLEWELLIN

I am obliged to the noble Lord. I think the definition clause referred only to Clause 19, and it is stretching the English language rather far to say that "damage" includes "obstruction." It is much better that where we mean obstruction to be covered, the word should be included, as the noble Lord has kindly done by these alterations to Clause 19. I thank him for having met me in the way he has.

On Question, Amendment agreed to.

Amendments moved—

Page 26, line 26, after ("damage") insert ("or removing the obstruction").

Page 26, line 28, after ("damage") insert ("or obstruction").

Page 26, line 30, leave out ("loss") and insert ("damage or obstruction").

Page 26, line 31, after ("sustained") insert ("or have occurred").—;(Lord Lucas of Chilworth.)

On Question, Amendments agreed to.

LORD LUCAS OF CHILWORTH

This Amendment is a drafting Amendment to correct a printer's error. I beg to move.

Amendment moved— Page 28, line 44, leave out ("undertakings") and insert ("undertakers").—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH moved, in subsection (4), to leave out "damage in respect of which," where those words first occur. The noble Lord said: With your Lordships' permission, I will discuss this Amendment and the next two together. They are really drafting Amendments to bring the wording of subsection (4) of Clause 19 more closely into line with the Act of 1935, referred to in the subsection. That is the Law Reform (Married Women and Tort-feasors) Act, 1935. That Act uses the word "damage" in a different sense from the sense in which it is used generally in the Bill, where it means physical damage. In the Act of 1935 it means resulting expense or loss. It is important to make it clear that in this subsection the word is used in the sense in which it is used in the Act of 1935. The real purpose of this subsection is to preserve the right of undertakers against third parties who may have caused damage to the undertakers' apparatus, although the undertakers are liable under this clause to indemnify the transport authority if such damage results in damage to or obstruction of a transport system. It is the undertakers who have to be liable for damage, and it is only right that if they can in law sue a third party because the third party was the real cause of the damage, they should be allowed to do so. I beg to move.

Amendment moved— Page 27, line 28, leave out ("damage in respect of which").—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

Amendments moved—

Page 27, line 30, leave out ("is damage") and insert ("against damage within the meaning of the Law Reform (Married Women and Tortfeasors) Act, 1935"),

Page 27, line 34, leave out from ("of") to ("as") in line 35 and insert ("that Act").(Lord Lucas of Chilworth.)

On Question, Amendments agreed to.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

Clause 21 [Cases in which the code in this Part is to have effect]:

LORD LUCAS OF CHILWORTH moved, at the end of subsection (1) (c) to insert:

"if the street is one such as is mentioned in the last preceding paragraph."

The noble Lord said: Part II of this Bill contains the underlying principle which has proved to be generally acceptable to your Lordships' House—that where undertakers' apparatus has to be moved or altered because of works proposed by a highway or transport authority, the highway or transport authority should bear the cost. It was never intended that private street owners should be brought into this, because it is considered unreasonable to saddle private street owners—who will often be individual frontagers who have to pay far too much when the road has to be made up—with the liability to pay for alterations to undertakers' apparatus caused by alteration to a private street. This Bill, as at present worded, may bring them into this where a transport authority is the originator of works in a private street. The simple explanation is that it was an oversight. We suggest this Amendment, and I am sure that the noble Lord, Lord Llewellin, will agree that when he gave this principle a welcome on Second Reading he did not intend that private street owners should come into it and have to pay. With that rather simple explanation, I beg to move.

Amendment moved— Page 29, line 19, at end insert the said words.—(Lord Lucas of Chilworth.)

LORD LLEWELLIN

I think this is quite right. It would be wrong if the frontagers had to pay twice, as I gather would have happened, through a slip in drafting, if the words were left as they are at present. I do not think anybody intended that, and I am glad that the noble Lord noticed it in time.

On Question, Amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 agreed to.

Clause 23:

Limitations on undertakers' right to payment for works made necessary, and county contribution towards such a payment

(2) Subsection (1) of the last preceding section or paragraph (b) of subsection (2) thereof, as the case may be, shall have effect subject to the provisions of this subsection in a case in which the following conditions as to notice of the authority's works were satisfied before the apparatus in question was placed (whether by way of an original placing or by way of renewal of other apparatus), that is to say— (a) where the placing of the apparatus was a code-regulated work, if notice of the authority's works being intended was given by the promoting authority or predecessors of theirs to the undertakers or predecessors of theirs within eight days from the date on which the intention to place the apparatus was signified to the authority or their predecessors by the submission of a plan and section if the placing thereof was a work to which section three of this Act applied or by notice under section six of this Act if it was not, and within twenty-nine days from that date a plan and section of the authority's works were funished to the undertakers or their predecessors; or

5.30 p.m.

THE EARL OF SELKIRK moved, in subsection (2) (a) to leave out "eight" [days] and insert "fourteen." The noble Earl said: I realise that there are various factors to be taken into consideration on both sides in this matter and I am not therefore going to argue what is in fact a rather complicated Part of the Bill. I merely ask whether the noble Lord will consider the point that as the Bill is at present drafted the time allowed for local authorities to make up their minds does appear rather short. My Amendment seeks to have the time extended to fourteen days. I beg to move.

Amendment moved— Page 32, line 8, leave, out ("eight") and insert ("fourteen").—(The Earl of Selkirk.)

LORD LUCAS OF 'CHILWORTH

If I argue this matter with the noble Lord I shall use exactly the same arguments as before, which would be rather wearisome to your Lordships. I will, on this occasion, look into this matter. If I can arrange it, I will, but I do not hold out much hope. If that is any crumb of comfort to the noble Earl, I suggest that he withdraws his Amendment, and I will give the matter consideration.

THE EARL OF SELKIRK

I am glad to accept the noble Lord's suggestion, and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 [Time for taking effect of the code in this Part, and exclusion of other statutory provisions]:

LORD LLEWELLIN moved, in subsection (1) (b) to substitute "six months" for "one year." The noble Lord said: This Amendment is really consequential on an Amendment which was accepted to the other Part of the Bill. Without further words, I beg to move—and I gather that the noble Lord will accept it, with the same proviso as he did the other Amendment.

Amendment moved— Page 34, line 31, leave out ("one year") and insert ("six months").—(Lord Llewellin.)

LORD LUCAS OF CHILWORTH

I readily accept this Amendment on exactly the same terms as the other, as the noble Lord has suggested.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 and 26 agreed to.

Clause 27:

Power to prohibit or restrict traffic on ground of execution of works, and liability of undertakers for cost of use of alternative route

(2) Where by reason of undertakers' works (other than works for purposes of a railway undertaking or a tramway undertaking) the use of a road is restricted or prohibited under the said section forty-seven or under any other enactment, and the traffic restricted or prohibited uses as an alternative route a road of a lower classification, the authority, body or person executing the works shall pay to the highway authority (if the latter road is a maintainable highway) or to the street managers (if it is not) an amount equal to any cost reasonably incurred by the authority or managers of—

1. (a) strengthening the latter road, in so far as the strengthening is done with a view to, and is necessary for, the use thereof by the traffic in question; or
2. (b) making good any damage to the latter road occurring in consequence of the use thereof by the traffic in question.

THE EARL OF SELKIRK moved, in subsection (2) to omit "(other than works for purposes of a railway undertaking or a tramway undertaking)". The noble Earl said: I am seeking an explanation of the reason for the arrangement mentioned in this clause. It concerns the case in which an undertaker undertakes works in a road as a result of which it becomes necessary to restrict or divert traffic. In the first place, as I understand the matter, the railway companies and the tramway undertakings are excluded from any liability arising from any work that they do. Perhaps I may be permitted to include in my present observations the other Amendments to Clause 27 which stand in my name. They all cover the same idea. It is suggested, in the case I have mentioned, that compensation may be paid when it is necessary to divert traffic on to an inferior road—a road of lower classification. If one road is closed, the volume of traffic will be greatly increased on other roads, which were not built for or intended to carry that volume of traffic. It may be, therefore, that an unreasonable amount of damage will be done on these roads, though they may be of the same or, indeed, a higher classification. I suggest, therefore, that this liability should be extended to cover any damage arising through restriction which necessarily brings diversion to other roads which would not normally be used to carry the same amount of traffic. I beg to move.

Amendment moved— Page 38, line 31, leave out the said words.—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

I am somewhat mystified—but perhaps that is my fault and not the noble Earl's. It appears to me that the cases covered by his Amendment to page 38, line 31, and that to page 38, line 35, are entirely different. However, perhaps I can deal with the matter to the noble Earl's satisfaction. Compensation is payable when diversion of traffic is from one classification of highway to a highway of a lower classification. That is a very simple thing because, if you divert traffic through repairs of a trunk road, to a Class II road, you are diverting to a road which was never built to carry the traffic of a trunk road. But if you divert traffic from either a trunk road to another trunk road, or from a Class II road to another Class II road, surely you are correct in assuming that that road is made in a condition to carry the traffic that is diverted to it. If not, there is a dereliction of duty upon the part of the highway authority; and if that is so, they must pay for it. If the traffic is transferred to a lower category of road, then compensation must be paid. I think that is a perfectly logical position.

As to the other Amendment which the noble Lord included in his speech, that is, the Amendment to page 38, line 31, I will agree straight away that from a highway authority's point of view there is a difference in principle between the closure of a road for undertakers' purposes and the closure of a road for transport purposes. But this Bill does not set out to regulate the operation of transport authorities—that is outside its scope. If the noble Lord sought to bring that into the Bill he would be opening up such a wide field that we should have to have another Bill exclusively to deal with it. Let me illustrate one of the points that I have tried to make. If the highway authorities want compensation for diversion of traffic, the highway authority should be prepared to compensate the railway authority for any loss caused by delay or diversion when a road works interferes with the railway services. If you are going to that field you are going into a sphere which is right outside the scope of this Bill. That is why the clause is drawn as it is. We must bear in mind that this Bill is very narrow in its limits: it governs the relations between the highway authority and the transport authority, a bridge authority and the undertakers, in regard to the breaking up of streets for the laying of apparatus—that is all. We cannot widen the scope to include anything else. I have tried to cover the noble Lord's principal Amendments because the two others are consequential on them. With that explanation, I hope he will not press his Amendment.

THE EARL OF SELKIRK

I am grateful to the noble Lord, because he has said one or two things which I did not appreciate. I did not realise that the railway service was out of this Bill altogether. At the same time, there is one point which I should like to make clear. The noble Lord asked why an authority should have any claim because its roads are damaged, if it is a similar class of road—in other words, that if a diversion takes place to a road of the same classification there should be no liability. But, of course, that matter is governed by paragraph (b), which means that damage has got to be proved as having taken place as a result of that diversion. I frankly admit that, in the majority of cases where similar conditions apply, you would have no damage, but there are cases where it might arise. However, I do not propose to press this point. It is one which I feel is narrow. In the circumstances, I beg leave to withdraw by Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28:

Restriction on breaking up by undertakers of maintainable highways recently closed for road work

28.—(1) Subject to the provisions of this section, where during any period the use by vehicles of a carriageway being or forming part of a maintainable highway has been prohibited, or the width of such a carriageway available for vehicular traffic has been reduced to less than two-thirds of the width thereof, for the purposes of the execution of works far road purposes, a statutory power of undertakers to break up or open the highway conferred for any purpose other than road purposes, or purposes of a railway undertaking or a tramway undertaking, shall not be exercisable therein during the twelve months following the end oil that period, if the following conditions are satisfied, namely,— (a) that the highway authority had given to the undertakers, after the passing of this Act and more than three months before the date on which the works for road purposes were substantially begun, a notice stating that works for road purposes in the highway were intended and that they would involve such prohibition or reduction as aforesaid, and specifying a date intended for beginning them, and

(2) The preceding subsection shall not apply to breaking up or opening for the purposes of— (a) emergency works;

(3) Subsection (1) of this section shall not apply to breaking up or opening done with the consent of the highway authority, and a consent for the purposes of this subsection shall not be unreasonably withheld.

Any question arising under this subsection whether the withholding of a consent is unreasonable shall be determined by the Minister.

5.41 p.m.

THE EARL OF SELKIRK moved, in subsection (1) after "period" to insert "the carriageway of a maintainable highway has been resurfaced or where." The noble Earl said: This is a somewhat contentious subsection, which we have all had a shot at improving. The point I am making here is this. The purpose of this clause is to reduce the number of times in which a given road will be cut up. As the clause is at present drafted, except in very special circumstances a road will not be opened more frequently than once in twelve months. I am suggesting an addition there, that that twelve months should run from any time when "the carriageway of a maintainable highway has been resurfaced." That is to say, when the local authority have resurfaced the highway it will count as if it had just been closed, which appears to me reasonable. I beg to move.

Amendment moved— Page 39, line 10, after ("period") insert ("the carriageway of a maintainable highway has been resurfaced or where").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

I am in complete sympathy with what the noble Earl says, but he is covered. He is quite right. If he will read subsection (1) of Clause 28 again, he will see that he is completely covered, because what he said was that when the whole of a road has been resurfaced it should not be taken up for twelve months. I agree with that, but you could not resurface the road without closing it to a certain amount of traffic. Nobody ever resurfaces a road completely. They do it in sections —one-half at a time or one-third at a time, and that part is closed to traffic. That is what resurfacing means. If that is done, the twelve months prohibition (if I may use the expression) "bites." I think the noble Earl will see that his point is fully covered by Clause 28, subsection (1), as it stands.

THE EARL OF SELKIRK

I accept the noble Lord's explanation and thank him for it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

5.44 p.m.

LORD LLEWELLIN moved, in subsection (1) after "execution" to insert "of undertakers' works or ". The noble Lord said: I made some criticism of this clause when we were discussing it on Second Reading. I notice that the noble Lord, Lord Lucas, by his subsequent Amendments has gone a long way to meet the points that I then made. Despite those Amendments, however, when we have accepted them, so far as I can read this clause, it will come into operation only if the closing or partial closing of this road was for the purposes of the execution of works for road purposes. It seems to me, however, that the initial purpose of stopping the road and ultimately resurfacing it may be also for the purposes of the execution of undertakers' works. I am suggesting merely that, for whatever purpose the road is originally taken up there should be this prohibition for a period of twelve months. If the road is taken up for the purposes of a gas company or a water company, and is then resurfaced, the works have not started "for the purposes of the execution of works for road purposes." It seems to me to be absurd to say that in one case Clause 28 shall come into effect, and in the other case it shall not. I had thought at one time of leaving out the purpose altogether, but then I realised that on an occasion such as Trooping the Colour, the whole of a road may be closed. When we are defining the purpose, as we have to, the purpose ought to be so widened that Clause 28 comes into effect whether the initial taking up of the road has been done from the point of view of the road authority or one or other of the statutory undertakers. It is for that reason that I beg to move the insertion of these words.

Amendment moved— Page 39, line 14, after ("execution") insert ("or undertakers' works or").—(Lord Llewellin.)

LORD LUCAS OF CHILWORTH

Again, I have a great deal of sympathy with what the noble Lord is seeking to do, but there is an almost insuperable obstacle which I think he will readily appreciate. What the noble Lord wishes to do is this. He wishes to have a prohibition upon a highway when an undertaker has carried out substantial works. But I think he has omitted to realise that the only obligation that we can impose upon a statutory undertaker is to bring the condition of the road, after he has executed his works, up to the standard in which it was before he commenced those works. Taking a position where the statutory undertaker breaks up a road that has not been re-surfaced and is in, let us say, a second-class condition, his only obligation is to re-surface that part of the road which he has broken up and to put it hack in the same condition in which he found it. What is the good then of saying: "And, therefore, no other undertaker shall break up that street for twelve months"? If the undertaker has broken up that street substantially, as the noble Lord has said, to in extent that would really require re-surfacing, I think we have to rely upon the highway authority then saying, "We will re-surface", because if they have re-surfaced the undertaker cannot break it up for 12 months.

The noble Lord's Amendment would be operative only in a case where a road was not in Al condition to start with, and the only obligation that we can put on that undertaker is to re-surface that road to the standard in which he found it—the noble Lord will realise that. I have every sympathy with him, because he and I have worked hard to improve Clause 28, and if I could see a ray of hope in accepting his Amendment I would willingly do it. But having looked into it, I am convinced that it would land us in very grave difficulties with undertakers and would really nullify what the noble Lord wants done. I ask him, would he rely upon what we have done (I admit jointly), in the following Amendment?

LORD LLEWELLIN

No. Although the noble Lord appeals to me in that way, I want rather more than just his sympathy, because I am really talking common sense. Here, under this clause, if an undertaker starts the work on a road, although it has been reduced to less than two-thirds of its width because of such work, if the work has been caused by the undertaker starting it you cannot prohibit anybody doing anything on that road for a period of twelve months, as you ought to do. The noble Lord opposite need not look so worried; I am not going to divide the House on this matter. But I give the noble Lord warning that I may do so on Report stage. If it is for the purposes of the road authority that this work has taken place, then Clause 28 comes into effect. In our experience through life, we have all seen it happen that in one month one undertaking comes along and digs up a bit of the road, and then the next month along come the gas people and dig up the same bit of road. And the next month—I may be exaggerating a little—along can come the water undertaking and again dig up that bit of road. This unnecessary digging up of the roads is seldom caused by the street authorities themselves; it is caused by the statutory undertakings, and there is nothing to make them all come along at the same time—such as a warn- ing to them that they will have to desist for twelve months if they do not. When the noble Lord tells me that the authority have power only to insist on the statutory undertaker restoring the street to its previous condition, I agree with him. Often they have not done even that very well. But that argument falls completely to the ground when, as he has done quite properly in this Bill, he has said that the street authorities may take it over and do the road themselves. They take it over and do the road and the resurfacing for themselves. The point I am making is that, where you have substantially taken up a great bit of road (whether it starts because of a roadwork or because of a statutory undertaker's work), I want there to be some power in the hands of the road authority, subject to appeal to the Minister about these things, to say that nobody else shall be able to come along within twelve months unless they take the opportunity to do their work at the same time as the original digging up occurs.

That is the sole object of my amendment. I will withdraw it to-day but I hope the noble Lord will look at it again, now that I have been able to explain it further. I shall certainly come back to this point on the Report stage, when I hope he will be able to meet me, because I think it is absurd to have this prohibition where the original purpose of the work has been for a street undertaking and not to have it where the original purpose has been the work of one of the statutory undertakers.

LORD LUCAS OF CHILWORTH

I am fully seized of the noble Lord's point and I am certainly not going to quarrel with him over it because he has been so helpful in this very difficult Bill—so much so that I would do anything I could to help him. But I think he must be seized of this point: that an undertaker may have to have a road closed to such an extent that if a highway authority did it it would mean that the whole road would have to be re-surfaced. But when it came to an undertaker wanting one-third of the road closed, his only statutory obligation would be to re-surface a quarter, or even half the road. I am sure that it is not the intention of the noble Lord to say that if a road has been re-surfaced for a quarter or half its width all other works shall be banned for twelve months. That is the difficulty. We cannot force a statutory undertaker to resurface more than he damages either himself or by paying the highway authority. That is his statutory obligation. He may damage only a quarter or half that road. If, having damaged half that road the highway authority then say "We are going to take this opportunity of re-surfacing the whole of the road," then it comes under the clause as it stands. That is our difficulty. However, if the noble Lord agrees, I will have further discussions upon this to see whether we can find a way out. If we can then I shall be only too happy to accept his Amendment.

LORD LLEWELLIN

Then for the moment I will withdraw this Amendment.

Amendment, by leave, withdrawn.

LORD LUCAS OF CHILWORTH moved, in subsection (2) to omit all words from the beginning down to the end of paragraph (a) and to insert: (2) The preceding subsection shall not apply to breaking up or opening for the purposes of emergency works. (3) Subsection (1) of this section shall not apply to breaking up or opening a part of the highway other than the carriageway for the purposes of—")

The noble Lord said: Upon Second Reading of this Bill I took the rather unusual course of inviting noble Lords on all sides of the House to help us on this clause. This is the one clause which really does affect the British public, and it is the clause where we did try to prevent the evil, which the noble Lord has referred to, of the street-breaking menace. The noble Lord has been very kind and has helped us greatly. I ask leave of the Committee to deal with these Amendments together, in spite of the fact that the noble Earl, Lord Selkirk, has an interposing Amendment which I think I can satisfy him in the course of my remarks is adequately dealt with. These three Amendments are at page 39, line 35, page 40, line 10, and page 40, line 22. All three hang together. May I take you through them quickly? The first Amendment reduces the scope of the exceptions in subsection (2). The only exceptions now are emergency works, the exceptions set out in subsection (1), which affect the railways and the tramway authorities, and those works which do not involve the breaking up of the carriageway. We have allowed works to be carried on under the pavement, but there are no works to be carried on which involve the breaking up of the carriageway.

The second Amendment transfers the appeal against decisions of the highway authorities to the Minister of Transport and the Minister of the Crown in charge of the Department concerned with the purposes for which the power to break up or open is conferred, acting jointly, any question which is the Government Department so concerned being determined by the Treasury. The determination of the said Ministers, it is provided, shall not be impugned on the ground that either of them is himself the highway authority or the authority by whom the power is exercisable. By the third Amendment we have taken away the statutory obligation of the undertakers to provide a service. It is only fair that we should do this.

If I may, I will now deal with the noble Earl's Amendment. He does not want a Minister or Ministers to decide: he wants a matter in dispute to go to arbitration. I put this point to him. Surely he would not wish there to go on any Statute in this country a provision that if there was a dispute, let us say, between the Postmaster-General and the Minister of Transport as to whether they could give authority or not, an arbitrator should decide between the two Ministers of the Crown.

LORD LLEWELLIN

That is the Prime Minister's job.

LORD LUCAS OF CHILWORTH

Yes. That is the Prime Minister's job.

These Amendments are the result of a joint effort with Lord Llewellin, and I think noble Lords will agree that we have tightened things up as much as we can. I may say that this has been agreed by all Government Departments and by all the principal authorities concerned. I think it has been a magnificent achievement of co-operation between the noble Lord, myself, Government Departments and the authorities to get so far as to make this twelve months' embargo a practical reality. I beg to move.

Amendment moved— Page 39, line 35, leave out lines 35 to 37 and insert the said subsections.—(Lord Lucas of Chilworth.)

LORD LLEWELLIN

Without supplementing the laurels which the noble Lord has thrown to himself and to myself and to everyone concerned, I would just say a simple "Thank you." This clause will, I am certain, be much improved by these Amendments, and I am glad that I pushed my points so far as they have gone. I am certain that these alterations are going to make the clause quite an effective one. If the noble Lord would just look again at my outstanding point, which I believe relates to the only remaining snag left in this clause, I shall be grateful.

On Question, Amendment agreed to.

THE EARL OF SELKIRK moved, in subsection (3) to leave out "the Minister" and insert "arbitration." The noble Earl said: I move my Amendment formally, in order that I may reply to the noble Lord. He has said that in a case arising 'between two Government Departments it would be unwise to have an arbitrator to act. But the great majority of cases would not be between two Government Departments; they would be between highway authorities and a Government Department.

Amendment moved— Page 40, line 10, leave out ("the Minister") and insert ("arbitration").—(The Earl of Selkirk.)

LORD LUCAS OF CHILWORTH

I think the noble Earl forgets that it is between an undertaker and a highway authority, and that two Ministers are to determine the issue—not one. It is not only the Minister of Transport, but the Minister of Transport and the Minister of the Crown in charge of the Department which is concerned with the purposes for which the power to break up or open is conferred, acting jointly. It will be a joint affair.

THE EARL OF SELKIRK

With great, respect, it states in subsection (3): … with the consent of the highway authority and a consent for the purposes of this subsection shall not be unreasonably withheld. Is that not relevant?

LORD LUCAS OF CHILWORTH

No. It says "shall not be unreasonably with-held." If the aggrieved party thinks consent has been unreasonably withheld the matter then goes to appeal, the appeal tribunal being the Minister of Transport acting jointly with the other Minister of the 'Crown responsible to the Government for the exercise of the legislation which gives the appellant a statutory right to do the work he wants to do.

THE EARL OF SELKIRK

With great respect, the party to give consent in the first place is the highway authority. There is then this appeal against the refusal of the highway authority to give consent. The highway authority is not content to leave it to the Minister of the Crown concerned, because the Minister of the Crown, the Minister of Transport, is interested in only some of the roads—the classified roads. There may be roads in which he is not interested. It appears to me that the Minister of Fuel and Power is not content to leave this to the Minister of Transport; he wants to be put alongside the Minister of Transport and be part of the arbitration tribunal. If he were content to leave it to the Minister of Transport, then, so far as I am concerned, the Bill need not be amended. However, I am not going to press my Amendment. I agree with Lord Llewellin that the Amendments of which Lord Lucas has been speaking collectively effect a marked improvement in the Bill, but I do not think that the question of arbitration in this instance is left in an entirely satisfactory position. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD LUCAS OF CHILWORTH

I beg to move the next Amendment.

Amendment moved—

Page 40, line 10, at end insert: ("and the Minister of the Crown in charge of the Department concerned with the purposes for which the power to break up or open is conferred acting jointly (any question which is the Department so concerned being determined by the Treasury), and a determination of the said Ministers shall not be impugned on the ground that either of them is himself the highway authority or the authority by whom the power is exercisable.") —(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH

I beg to move the next Amendment.

Amendment moved—

Page 40, line 22, at end insert: (6) In so far as any failure of undertakers to satisfy an obligation to which they are subject by virtue of any enactment is attributable to the prohibition by this section of breaking up or opening for which the undertakers have duly sought the consent of the highway authority and for which consent has been withheld and has been determined to have been reasonably withheld, the failure shall not be treated as a contravention of that enactment."—(Lord Lucas of Chilworth.)

On Question, Amendment agreed to.

Clause 28, as amended, agreed to.

Clauses 29 to 33 agreed to.

House resumed.