§ 4.57 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do resolve itself into Committee.—(Lord Forbes.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF BUCKINGHAMSHIRE in the Chair.]
§ Clause 1:
§ Constitution of buildings authorities:
§ (4) The jurisdiction and functions conferred by this Act on a buildings authority which is a dean of guild court shall be in lieu of any jurisdiction or functions which would be exercisable by the court apart from this Act, whether by custom or by virtue of any enactment, except so far as—
- (a) conferred by the enactments specified in the First Schedule to this Act, or
- (b) relating to matters of private right; and in relation to the area of any such buildings authority the provisions of this Act shall be in lieu of any enactment or rule of law in force immediately before the commencement of this Act making it unlawful to erect, alter, repair or otherwise deal with a building, or occupy a building in any particular way, without the sanction of the dean of guild court for that area.
§ LORD MATHERS moved, in subsection (4), after "any jurisdiction" to insert "corresponding". The noble Lord said: This and the next Amendment go together, and they also work with Amendment No. 18, which proposes that the First Schedule be omitted. I should explain to the Committee that these Amendments originated with my noble friend Lord Greenhill, who unfortunately is unable to be present with your Lordships to-day. I wish he had been here for he is so much more capable than I ant of dealing with any subject concerning this Bill. His long experience in Glasgow Corporation entitles me to say that he would have dealt with these matters much more authoritatively than I can hope to do. My local authority experience was not even in Scotland, so 1154 that I am far from being an authority on matters affecting dean of guild courts and other matters that come under consideration here.
§ The purpose of this and the second Amendment is to amend the provisions of Clause 1 (4) of the Bill and the First Schedule which provides, subject to certain exceptions, for the supersession of the functions and jurisdiction of the dean of guild, which in Edinburgh is the dean of guild court under local Acts and by custom and law. Under Clause 1 (4) and the First Schedule, these functions and the said jurisdiction are dealt with in two different ways. First, the functions and jurisdiction relating to certain matters are left unaffected by the Bill. These matters comprise mainly provisions relating to streets and are detailed in paragraph 4 of the First Schedule. Secondly, all other functions and jurisdiction are repealed or abrogated by the Bill but may, before it comes into operation, be reinstated by order of the Secretary of State.
§ The purpose of the Amendments is to provide that all the powers and jurisdiction of the Dean of Guild in Glasgow or the Dean of Guild in Edinburgh which do not correspond with the provisions of the Bill or the proposed building code shall be dealt with in the same way and left unaffected by the Bill, but with power to the Secretary of State, under Clause 28, to make an order under Clause 28 (3), to deal with anything in any local Act which requires to be amended, any such order being subject to special Parliamentary procedure. The Corporations of Edinburgh and Glasgow see no reason whatever why the functions and jurisdiction of the clean of guild and dean of guild courts should be superseded by the Bill, unless they relate to matters which are dealt with by the Bill or the proposed building code. In Glasgow and, to a lesser extent, in Edinburgh, there are a great many matters on which the dean of guild exercises jurisdiction but which are entirely outside the scope of the Bill, and it seems to be quite Gilbertian to repeal all these provisions and for the Secretary of State to make an order restoring them before the repeal comes into operation. It is the case that all these provisions may be restored by order of the Secretary of State, but why repeal them first and then restore them?
1155§ The fact that this apparently absurd procedure is adopted gives ground for apprehension that there may be a difference between the local authorities and the Secretary of State as to the restoration of these provisions. In the event of any such difference the local authorities would be entirely in the hands of the Secretary of State, who, by refusing to make an order under paragraph 5 of the First Schedule would deprive the local authorities of powers which they wish to retain—powers, indeed, which they may possibly have been at great expense to secure. If, on the other hand, the Amendments are effective, the Secretary of State could make an order repealing whatever he thought should be repealed, but such an order would be subject to special Parliamentary procedure, thereby providing a safeguard for the local authorities.
§ The Corporations fully recognise and accept that in so far as the Bill and proposed building code deal with the same matters as local enactments these local enactments must be superseded. They do not, however, see that there is any justification for repealing, by the Bill, functions and jurisdictions of the dean of guild which in no way correspond with the provisions of the Bill or the building code, and the Amendments are designed to prevent this, while prescribing to the Secretary of State all necessary powers to repeal or amend all local enactments which the provisions of the Bill or the building code render unnecessary or which ought to be repealed or amended consequent thereon.
§ In talking about the powers that the authorities have, I would say that I have here a list of thirty-seven items in local Acts with which Glasgow has authority to deal at the present time. I will not read the thirty-seven items—it would be too much—but I may mention that private streets may be declared public streets by the dean of guild. There are also the questions of paving a private street; the construction and repair of common sewers; the construction and repair of private sewers. These are merely samples of the kind of things that would be repealed where it is considered quite unnecessary to apply that repeal. The City of Glasgow, as I say, possesses these powers and the Corporation would 1156 be placed in jeopardy if this Bill were enacted as presently drafted.
§ Clause 4 (1) of the Bill in its present form is, it is believed, a complete departure from precedent in dealing with local Acts affected by a Public Bill, while the Amendments are in line with precedent as, for example the Police (Scotland) Act, 1956, Section 37.
§ Finally it is urged that if the Government cannot see their way to accept the Amendments in Committee—there has not been much opportunity for considering these representations—they might at least agree to go into the matter again with a view to amending the Bill on Report. I think that is an easy way of enabling the Minister of State (who of course has not quite the power of the Minister in another place), to deal with these matters. Certainly I hope that this Bill will be passed eventually in a form that will not menace the position of these Corporations in the way that it presently does.
§
Amendment moved—
Page 2, line 7, after ("any") insert ("corresponding").—(Lord Mathers.)
VISCOUNT STONEHAVENI want to support this Amendment. My grounds, or my right, for doing so are very slender indeed. I can only claim to have been born in Edinburgh. Glasgow and Edinburgh are not always hand in hand in matters of this sort of thing; there is a certain amount of rivalry; but in this case they have come together and approached certain of us—unfortunately the noble Lord, Lord Greenhill, is not here—to put their point of view. I have a slender connection with Glasgow, but a very important one, in that my forbears originated the family fortunes there, because they were one of the first people to make iron and steel—the name of William Baird and Company is not unknown.
The real point, so far as I see it—and it is extremely difficult for a layman with no knowledge of the law to comprehend these things—is that these cities have gone to great expense and great trouble in promoting provisional orders and all the other necessary machinery to get local enactments established as Acts. Most of us have sat as Commissioners on bodies dealing with these provisional orders and we know the enormous care and trouble that is gone to and the 1157 difficulty of ever getting an Act of that sort. Therefore to those who have got a local Act it is very precious indeed.
I should not like to support anything which I thought was not in the direction of progress or which I thought was retrograde in any shape or form; but in this case, as I understand it, the clearing away in one clean sweep of all these local enactments and then the replacing of them at the behest of the Secretary of State is a laborious procedure. The other point is that a lot of the enactments that are swept away have no bearing whatsoever on the building by-laws and the code of practice dealing with stability of buildings, health matters and suchlike essential things, which I am all in favour of—they have no bearing whatever on them. I may be incorrect, but I think I am right in saying that the sort of provisions that would be swept away might concern the fact, for example, that the Dean of Guild Court in Edinburgh have provisions regulating bonfires lit in the streets. That may seem a peculiar thing to talk about, but it is a time-honoured traditional custom in Edinburgh. It may be reprehensible; nevertheless, only last year, when I spoke on a provisional order, we had a terrific feeling about this matter. Furthermore, it is a tourist attraction. Now that will be swept away. The noble Lord will know, and if I am talking of something which is irrelevant I hope he will stop me, but I do not think I am. That is the type of thing which will be swept away. Now, so far as I understand it, it would not be the subject of a local inquiry whether the Secretary of State should put it back or not: that will probably be decided down here, although I do not know.
It seems to me that there is wasted talent in the Scottish Office. With all this wonderful logic, how on earth can we set up our institutions, with all the necessary clerical staff and individuals and experts, to take all these things out of the Bill, if we see fit, when we have not put them in first? That appears to me to be second-degree logic; but it is logic. If it is not put in a Bill first, you cannot take it out, I agree. I really think that that would be a very suitable thing for a Gilbert and Sullivan Opera—it needs only the tune to be written into the Bill. As it stands, I hope that the noble Lord will consider the matter very 1158 fully, and will see whether he cannot help us a little at a later stage of the Bill.
§ 5.12 p.m.
§ THE MINISTER OF STATE, SCOTTISH OFFICE (LORD FORBES)The subject here is both legal and technical, and as it is extremely complex perhaps your Lordships will bear with me while I go into this matter in some detail. The noble Lord, Lord Mathers, pointed out that at one time we were considering repealing thirty-seven provisions in the Glasgow Corporation Act, I think it was. The noble Lord did not also point out that it is only thirty-seven provisions out of a total of some 255: so I feel that we are probably making hills out of small molehills.
VISCOUNT STONEHAVENMay I ask the noble Lord a question? Either I have understood the point wrongly, or he has not answered quite the right point. The point is that those thirty-seven enactments have nothing whatever to do with the subject of this Bill, and that is why the number is only thirty-seven. Speaking without any actual detailed knowledge, I would point out that there are such matters as the bonfire question. I may have incorrectly quoted it, but that is the type of thing. The thirty-seven are entirely irrelevant to the matter which is the subject of this Bill, but are provisions which have been placed in the local Acts after a great deal of careful consideration and after a lot of expense by the Corporation. That is the point—and the only point, I may say, so far as I am concerned.
§ LORD FORBESYes, the thirty-seven are local provisions which are completely outside this Bill; that is quite true.
There is one consistent principle that runs through the whole of this Bill, and that is that the only effective way of dealing with the confused state of Scottish building legislation is to wipe the slate clean and make a fresh start. This is a principle emphasised more than once by the Guest Committee and accepted by the Government. To retain the existing mass of differing requirements and to consolidate and improve on it would leave us no better off than we were before. The whole point of this Bill is that it has been shown beyond question that the time has come when a fresh start must be made.
1159 The application of this principle in this particular case is that it is desirable that, within the field of building control, the jurisdiction and functions of dean of guild courts should be clearly understood, clearly expressed, and accessible to anyone who wants to know what they are. At present, in addition to their statutory jurisdiction, dean of guild courts possess common law jurisdiction which cannot easily be defined. One of the complaints made to the Guest Committee—and this is a matter on which some of your Lordships may have had some experience—is that the applicant to a dean of guild court for permission to build may find that there is no way of knowing in advance what requirements the court may place upon him by the exercise of their common law jurisdiction. The Bill therefore seeks to put the question beyond any reasonable doubt by stating in terms the limits of the jurisdiction of the court. The obvious jurisdiction will, of course, be the application of the Building Standards Regulations; but over and above that there are other jurisdictions specified in the First Schedule which are not in any way interfered with. In addition (and this, I think, is the point which we are disputing about), the First Schedule enables the Secretary of State to preserve by order additional provisions of local Acts.
The idea behind the Amendment we have under consideration is that, instead of doing things in this way, the Bill, and the regulations made under it, should simply replace what the Amendment calls "corresponding jurisdictions and functions". Everything else will be left in existence, except that the Secretary of State would have the general power conferred by Clause 28, subsection (3), to repeal local Act provisions. But this would not achieve the desired objective. The obscurity which is an objectionable feature of the present situation would, I am quite certain, be perpetuated by doubts about the effect of the word "corresponding". The door would be open to the refusal of warrant on the basis of common law jurisdiction in a case where that jurisdiction could be argued to apply to an aspect of building not dealt with by anything in the Bill or the regulations.
Furthermore, the obligation, if accepted, would mean that the only way of repealing unwanted provisions of local Acts 1160 would be for the Secretary of State to seek them out and repeal them. This, in the Government's view, is wrong. Surely it is appropriate that the case for preserving local Act provisions should be made by the local authorities themselves. They are in a position to know how these local Act provisions fit local conditions. I need hardly say that the local authorities need have no apprehension that they will find the mind of my right honourable friend the Secretary of State already made up, or unreceptive to suggestions. Where a good case can he made out they can be certain it will be listened to sympathetically.
It would, however, in the Government view, be quite wrong to put on the Secretary of State the duty of saying which of the provisions of the local Acts should be repealed, and thus require him to take the whole initiative. Let me make it clear, my Lords, that there is no question whatsoever, as has been suggested in some quarters, that the Bill will automatically repeal local Act provisions which will then have to be painfully recreated by the Secretary of State. The mere passing of this Bill will not, in itself, effect any repeal. Nothing will be repealed until the relevant clauses come into effect at a date appointed; and that cannot be, at the earliest, until the Building Standards Regulations have been drafted and are ready to be put into effect—that is to say, in probably about two years' time. The intention is that full discussions will take place with the local authorities concerned during that period, and that the orders saving all those local Act provisions which ought to be saved will be made during that time.
The position therefore is that where there is a good case for the preservation of the local Act provisions they will not be repealed as a result of anything in this Bill. Let me sum up by saying that the effect of the Bill as drafted is that the charter of every dean of guild court will be clearly defined. The Government are convinced that this is the right course, and I hope, from the assurances I have given, that the noble Lord will see his way to withdraw the Amendment.
§ LORD MATHERSAs I see the position, what the Minister of State is doing, in the refusal he has made to the representations of the local authorities, is building up for himself a great controversy for the future. I am sorry he takes 1161 that line. I am not prepared to withdraw the Amendment. He must take the responsibility—and, along with him, your other Lordships, if you agree with the Minister of State—of defeating the Amendment I have moved.
§ On Question, Amendment negatived.
§ Clause 1 agreed to.
§ Clauses 2 to 5 agreed to.
§ Clause 6 [Application of building standards regulations and building operations regulations to construction or demolition, and to change of use, of buildings]:
§ LORD FORBESI propose, for the convenience of the House, to speak on Amendments 3 and 4 together. As the Bill stands, the procedure in subsections (11) and (12) of Clause 6, enabling permission to be given to deposit materials on roads while building is in progress, is tied up with the granting of a warrant; so this does not cover repair and maintenance work. The new clause will give the buildings authorities permission for the materials being used, not only for maintenance, but for building and demolition, to be deposited on roads. In addition, it gives authority for the buildings authority to delegate their responsibility in this respect to the clerk or master of works. It really comes down to this: if the owner in a landward area does apply for this permission he avoids any possibility of his having his materials moved off the road under the Roads and Bridges (Scotland) Act, 1878. I beg to move.
§ Amendment moved—
§ Page 8, line 12, leave out subsections (11) and (12).—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7 agreed to.
§ LORD FORBESI beg to move.
§ Amendment moved—
§ After Clause 7, insert the following new Clause—
§ Occupation of parts of roads for deposit of materials, etc.
§ (".—(1) A buildings authority, on application made to them, may grant permission in writing to any person conducting operations for the construction, repair, maintenance or demolition of any building to occupy temporarily, for the purpose of depositing materials or otherwise in connection with those operations, such portion of any road, whether public or private, adjoining the building as may be specified in the permission, and 1162 may by such permission authorise the erection of staging or scaffolding so as to project over that portion of the road or such other portion of the road as may be so specified; and notwithstanding anything in any enactment or rule of law, any person who complies with any permission granted under this section (including any conditions to which the permission is subject by virtue of the next following subsection) shall not thereby be guilty of an offence.
§ (2) Any permission granted under this section may be granted either unconditionally or subject to such conditions as may be specified in the permission.
§ (3) A buildings authority may delegate their functions under this section, as respects such cases and subject to such conditions as they may determine,—
- (a) to their clerk, or
- (b) with the consent of the local authority, to the master of works appointed by the local authority:
§ Provided that where by virtue of any regulations made under section two of this Act an application for permission under this section is combined with an application for a warrant the application for permission under this section shall be dealt with by the same authority (whether the buildings authority, the clerk or the master of works), as the application for the warrant.")
§ On Question, Amendment agreed to.
§ Clause 8 [Certificates of completion]:
§ VISCOUNT STONEHAVEN moved, in subsection (6), to leave out "because of exceptional circumstances,". The noble Viscount said: This Amendment is a small one. It really increases an Amendment which was granted in another place. The situation is slightly different now as it can no longer be claimed that owing to Parliamentary time other Amendments cannot be considered. As Amendments have been accepted, the Bill will have to go to another place, in any case. The Amendment I want to move is to leave out in subsection (6) the words "because of exceptional circumstances." Now temporary occupation of buildings, if it appears to the buildings authority reasonable, seems to me very fair indeed; but if you add "because of exceptional circumstances" there are a large number of ways of pleading exceptional circumstances.
§ Very rightly indeed, my noble friend the Minister has stressed that one of the objects of the Bill is to get uniform fairness, and to get everything beyond doubt. I entirely agree with him. It is a very worthy object. But it occurs to me that if he leaves in the words "exceptional circumstances" he is leaving in words 1163 that could give rise to difficulties by different consideration by different people. If, on the other hand, he takes them out, it appears to me, as a layman, that he has all the protection necessary because it has to be a reasonable application, deemed to be reasonable by the local authorities. I think that this additional qualification is unnecessary and—unless he would like to make a snap decision which I do not expect he does—if he could give me an assurance that he would consider it at a later stage I should be happy to withdraw the Amendment.
§ LORD FORBESThe value of the words the Amendment seeks to leave out is as a signpost giving a broad indication to the buildings authorities and to the applicants. A certificate of completion, as your Lordships will appreciate, is an important part of the new and better system of building control for which the Bill provides. It is at the stage of the issue of a certificate of completion that the applicant ends the process he began when he applied for a warrant and satisfies the buildings authority that what he has done is in accordance with the building regulations. It would be wrong to do anything to undermine this. The whole point of enabling temporary permission for occupation to be given is to meet the situation where hardship would result because something unforeseen has happened, such as the early onset of bad weather or failure to obtain some component part of the building. The Government's intention is that this facility should be used only where there are exceptional circumstances, and it seems right and helpful to all concerned that this intention should be expressed in the Statute. However, in view of what my noble friend Lord Stonehaven has said I will certainly undertake to consider this matter further.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clause 9 [Powers in relation to buildings constructed without warrant or in contravention of conditions of warrant, and buildings whose life has expired]:
§ 5.30 p.m.
§ LORD FORBESFor your Lordships' convenience, perhaps I can speak on Amendments Nos. 6, 7, 8 and 10 together. 1164 Amendments Nos. 6, 7 and 8 are purely drafting Amendments preparing the way for the new clause which is introduced by Amendment No. 10. This new clause gathers together a number of supplementary provisions which will in certain circumstances be relevant where the buildings authority or the local authority require work to be carried out under the Bill. Subsection (1) makes these supplementary provisions available in cases of, first of all, a building contravening the conditions of a warrant; secondly, an existing building ordered to be brought up to standard; and thirdly, a dangerous building being made safe. Subsection (2) deals with a building of historic or architectural interest. In this case the provisions of special enactments for these buildings will take precedence over this Bill.
Subsection (3) deals with the case of an owner required to carry out works. It enables him to enter his building for this purpose irrespective of any agreement he may have with a tenant. Subsections (4) and (5) provide that a trustee ordered to carry out works can only be required to pay to the limit of the estate under his control—in other words, limited liability. Subsections (6) and (7) cover the case where the person who is ordered to carry out the work can show that some other person is financially responsible in whole or in part for the work. In this case an apportionment of the payment can be made, and if there is any dispute over this the matter can be taken to the sheriff. I beg to move.
§ Amendment moved—
§ Page 11, line 20, at beginning insert ("Subject to the provisions of section (Supplementary provisions as to works required to be carried out) of this Act,")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 9, as amended, agreed to.
§ Clause 10 [Power of local authorities to require buildings to conform to building standards regulations]:
§ LORD FORBESI beg to move.
§ Amendment moved—
§ Page 13, line 15, at beginning insert ("Subject to the provisions of section (Supplementary provisions as to works required to be carried out) of this Act,")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Clause 11 agreed to.
1165§ Clause 12 [Action to be taken in respect of buildings found to be dangerous]:
§ LORD FORBESI beg to move.
§ Amendment moved—
§ Page 15, line 35, after ("shall") insert (", subject to the provisions of section (Supplementary provisions as to works required to be carried out) of this Act,")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 12, as amended, agreed to.
§ Clauses 13 and 14 agreed to.
§ Clause 15 [Appeals]:
§
VISCOUNT STONEHAVEN moved, in subsection (1), to add to paragraph (c):
or to grant a permission under subsection (6) of section 8,".
§ The noble Viscount said: The purpose of this Amendment is that it seems reasonable, if one has the right of appeal to the sheriff in the case of being aggrieved at the refusal of a completion certificate, that one should also have the right of appeal to the sheriff if one is aggrieved by not being allowed temporary use of the building under Clause 8 (6) The noble Lord, Lord Forbes, said last time that his words might be necessary there as a signpost. I should like to use that same argument here: that a signpost of appeal to the sheriff is a useful thing to have, as it will mean that the decisions of the local authorities are much more seriously considered. If they have the threat of an appeal to the sheriff hanging over them they will make sure that they are right in their decisions. Having this right of appeal would, I think, have no detrimental effect on the Bill; in fact, I think it would have a beneficial effect, even if only a sign-posting effect. I beg to move.
§ Amendment moved—
§ Page 16, line 38, at end insert the said words.—(Viscount Stonehaven.)
§ LORD FORBESUnder Clause 8 (7), as read with Clause 7 (3), applications for permission will in normal circumstances be made to the master of works. If he refuses, the applicant can require the matter to be dealt with by the buildings authority themselves, so that there is, in fact, at least one stage of appeal open to a disappointed applicant. I am sure the noble Viscount will agree with me that the Bill will provide a considerable improvement on the existing law, where 1166 there is at present no right of appeal whatsoever against refusal of permission to occupy a building. While I must say that I have every sympathy with the noble Viscount for wishing to have as wide a right of appeal as possible, I do not think that an appeal to the sheriff in this case would afford any useful purpose to the aggrieved person. After all, an appeal to the sheriff would in some cases, I think, take at least three months, and the permission we are seeking here is only temporary permission for a short time to occupy a building. In those circumstances, I hope the noble Viscount can see his way to withdraw the Amendment.
VISCOUNT STONEHAVENI think it is rather a pity, because under the conditions which the noble Lord quoted when talking of the necessity of having the phrase "in exceptional circumstances" he pointed out the hardship that would arise when a building could not be occupied without temporary permission on the non-delivery of possibly machinery or possibly certain materials. In my experience, that sort of thing can go on far at least a year. Therefore, with respect, I do not really think his argument on the matter of three months—I was sorry to hear it—has much force. I will withdraw the Amendment, but I feel that the noble Lord should look into this matter a little further, because I do not think his argument is well founded. I admit that an actual appeal to the sheriff is most unlikely, because it is expensive, it is cumbersome and, as the noble Lord said, it takes a long time; but it is a fact that the party who is aggrieved would have that behind him to give him the feeling of extra security. If this proposal damaged the Bill in any way—which I do not understand—I would stop at once; but, so far as I know, it does not. I do not think there is any real reason why this Amendment should not be put into the Bill.
§ LORD FORBESI will certainly look into the matter, but I cannot hold out any special hope to the noble Viscount that I shall be able to accept the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.
1167§ LORD FORBESI beg to move.
§ Amendment moved—
§ After Clause 15, insert the following new clause—
§ Supplementary provisions as to works required to be carried out
§ (".—(1) The provisions of this section shall have effect where a person is required by any order or notice under section nine, ten or twelve of this Act (in this section referred to as a "requirement") to demolish, or carry out operations in relation to, a building.
§ (2) If the building is—
- (a) a building in respect of which a notice under subsection (1) of section six of the Ancient Monuments Act, 1931, has been served, or is deemed under subsection (4) of that section to have been served, and which has not ceased to be included in any such list as is mentioned in the said subsection (1),
- (b) subject to a building preservation order under section twenty-seven of the Town and Country Planning (Scotland) Act, 1947,
- (c) included in a list of buildings of special architectural or historic interest, being a list compiled or approved under section twenty-eight of the said Act of 1947, or
- (d) subject to an interim preservation notice under section ten, or a preservation order under section eleven, of the Historic Buildings and Ancient Monuments Act, 1953,
§ (3) If the person is not in occupation of the building he shall nevertheless, on giving to the occupier such notice as is reasonable in the circumstances, be entitled, notwithstanding any term to the contrary in any lease or other contract, to enter on the building, and any land adjacent thereto and held in connection therewith, for the purpose of complying with the requirement.
§ (4) Where, in pursuance of any provision of the said section nine, ten or twelve, the local authority seek to recover from the person any expenses incurred by them in carrying out operations in relation to the building, then, if the person proves—
- (a) that he has no interest in the building except in the capacity of a trustee, tutor, curator, judicial factor or liquidator of a company, and
- (b) that he has not, and since the date of the service on him of a demand for payment of the expenses aforesaid has not had, in his hands in that capacity sufficient funds, rents and other assets to discharge the whole demand of the authority.
§ (5) In the case of a requirement being an order under the said section nine or the said section ten, it shall be a defence to any complaint charging the person with failure to comply with the requirement to prove that at the date of the making of the requirement—
- (a) the person had no interest in the building except in the capacity of a trustee, tutor, curator, judicial factor or liquidator of a company, and
- (b) the amount of the funds, rents and other assets in his possession in that capacity was less than the amount of the expenses which would have been incurred if the requirement had been complied with.
§ (6) If the person alleges that the whole or any part of the expenses incurred or to be incurred in complying with the requirement ought to be borne by any other person having an interest in the building, he may apply to the sheriff, and the sheriff may make such order concerning the expenses or their apportionment as appears to him, having regard to all the circumstances of the case, including the terms of any contract between the parties, to be equitable.
§ (7) The provisions of subsection (3) of the last foregoing section relating to the determination of the sheriff on an appeal under subsection (1) of that section shall apply to the order of the sheriff in an application under the last foregoing subsection as they apply to such a determination, with the substitution for any reference to the appeal under the said subsection (1) of a reference to the application.")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 16 [Inspection and Tests]:
§ 5.41 p.m.
§ LORD FORBESPerhaps I may move Amendments Nos. 11 and 12 together. These two Amendments provide that, where an owner wishes to carry out building with an unusual form of material—something like solidified porridge—the building authority can ask for the material to be tested before granting the warrant. I think your Lordships will agree that provisions such as that are reasonable. I beg to move.
§ Amendments moved—
§ Page 20, line 11, at end insert ("for a warrant in respect of a building, or")
§ line 16, leave out ("being used") and insert ("used or proposed to be used").—(Lord Forbes.)
§ On Question, Amendments agreed to.
§ LORD FORBESThis is a drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 20, line 23, leave out the first ("the") and insert ("their").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 16, as amended, agreed to.
§ Clauses 17 to 26 agreed to.
1169§ Clause 27 [Interpretation]:
§
27.—(1)
building" means any structure or erection of what kind or nature soever, whether temporary or permanent, and every part thereof including any fixture affixed thereto, not being a structure or erection or part thereof consisting of, or ancillary to,—
(e) any large reservoir within the meaning of the Reservoirs (Safety Provisions) Act, 1930; or
§
VISCOUNT STONEHAVEN had given Notice of two Amendments to the definition of "building". The first was after "being" to insert "(1)" and the second to add, after paragraph (e):
or
(2) a structure or erection or part thereof (other than a dwellinghouse) situate upon land used for the purposes of agriculture as defined in section one hundred and eighty-four of the Housing (Scotland) Act, 1950;
§ The noble Viscount said: With your Lordships' permission, I will speak to Amendments Nos. 14 and 15, because they hang together. I find myself in rather an awkward predicament here—I believe it is called being hoist by one's own petard. The Minister undertook to go into the question of the position of the law at the moment regarding agricultural buildings on the landward area. Very courteously, he wrote me a letter explaining the position. In spite of the fact that I am one of the people on the local authority supposed to be administering that Act, I find that, in common with others—I am in good company—I have been breaking the law.
§ It is quite illegal to-day, I understand, to dig a silo pit without a building permit. One does not need planning permission—that is a different thing entirely—but, as the law stands, a building permit is required to dig a silo pit. I have dug five. A little north of me there is the River Don, and there are some farms on Don-side where silage pits have been dug. It has become a general practice, I am afraid, not to hold the law in disrepute but to turn a blind eye to it, and to such an extent that many of us are confused as to the state of the law. I would say that is very common in Scotland to-day which is, I admit, justification for this Bill.
§ The Amendment I have put down probably goes further than I desire. What 1170 I want is to make it practicable, simple and easy for the law to be carried out. The type of building I have in mind is a small structure which I would say almost every farmer in Scotland has put up without building permission—and I would add that, in my opinion, he will continue to do so. If he could obtain permission to build in a small way merely by sending in a sketch on a piece of notepaper, and a few simple dimensions on an application form, then I should be quite happy; but as the law stands he must put in proper application forms and proper drawings. Although one is never held to it, the prints are supposed to be on linen, but locally that has been abolished. That kind of thing could make it a burden.
§ I should like the noble Lord to say that the kind of absurdities which I and others could point out will be excluded by these committees who are going to make these regulations. He has never said they will. He has said that he thinks they may be. I should like him to say that in that type of case they definitely will be. I do not think he ought to have much difficulty in committing himself that far. As the law stands to-day, one is covered, I think I am right in saying, by the Burgh Police (Scotland) Act, 1892. All buildings, including temporary structures, are covered. Technically, you are infringing the law every time you make an electric fence. You cannot clean out a ditch without a permit. You cannot erect a lambing pen when you get bad weather without infringing the law. A water trough, a gate into a field—all those are things you cannot touch. All I want the noble Lord to do is to give me an assurance that things of that sort will definitely be excluded. I do not want him to say that in his opinion they may be; I want him to say they will be. If he will do that, I shall be happy to withdraw the Amendment. I beg to move the first Amendment.
§ Amendment moved—
§ Page 24, line 33, after ("being") insert ("(1)").—(Viscount Stonehaven.)
LORD KINNAIRDI should like, in a word, to support what my noble friend Lord Stonehaven has said. One always dislikes a position when the law is broken. I am afraid that at present in most counties in Scotland, as the Minister will know, the law is broken. I should 1171 not like to feel that we are going to produce a law which will not be carried out because it is too cumbersome. There are two dangers. One is that if you ask small farmers—and I speak particularly for the small farmers, who do not employ architects—to produce plans they will probably delay doing anything, and in many cases will do nothing. That is a danger, because that will interfere with production, which we do not want. The Minister will probably say that this matter will come up on the regulations, and can be provided for then. I trust that the whole group of small buildings will be carefully defined, and will be excluded as a group.
The second danger is that, if they are not excluded as a group, the county councils will be inundated by people making individual applications for warrants and plans. That would be unfortunate, because again it would mean delay. Therefore I hope the Minister will be able to assure us that the subjects which the noble Lord, Lord Stonehaven, has mentioned will be carefully considered as a whole class, and will not require individual warrants.
§ LORD MATHERSIt has surprised me greatly to find my noble friends (as I should prefer to think of them) on the other side of the House, urging such things upon the Minister. It seems to me that, if an extreme view were taken of this, it would be that they were urging the Minister to compound a felony. I would point out, in any case, that if he were to make a concession like that he would be binding only himself and the present Ministers, and one would not expect that future Ministers would consider themselves bound by such flagrant permission to break the law.
§ LORD STRATHCLYDEI often find myself in agreement with the noble Lord who has just spoken, but not on this occasion. I warmly support the considerations put before the House by the two noble Lords who spoke previously. I confess that the Minister may find himself in considerable difficulties in trying to put into the Bill provisions which meet the request which has been made. Nevertheless, it seems to me perfectly ridiculous that, if something is not done—if this is the law at the moment—a farmer who wishes to put a temporary 1172 bridge over a burn in order to get to one of his fields must apply to the local authority for permission. He never will; it does not matter what is put into the law. I have to confess that I may have been in breach of the law; I have dug silage pits, and people will continue to dig silage pits without going to the county council to get permission to do so. You will not get the law complied with unless you make the penalty so heavy as to make the whole situation ridiculous. I would urge the Minister to look at this very seriously, though I confess that I see great difficulty in being able to meet the situation.
§ LORD FORBESFrom what my noble friends, Lord Stonehaven and Lord Kinnaird, have said I think it is extremely fortunate that they are in your Lordships' House this afternoon and not behind bars. Noble Lords have argued that agricultural buildings other than dwelling-houses should be removed altogether from the scope of the Bill and that, in consequence, the building standards regulations should not apply to them. May I say right away that I fully understand the circumstances which have led to this suggestion, and that to a great extent I sympathise with the views that have been expressed.
As your Lordships will be aware, the proposal in the Bill is for exemption to be given by regulations made by the Secretary of State under Clause 3 of the Bill. In addition, certain works which would otherwise come within the very wide scope of the word "building" are excluded by the definition in Clause 27 of the Bill. These exclusions from the definition, however, are not intended to take the place of exemptions; they merely make it clear that the exemptions mentioned are works which, while they fall within the scope of the definition, are not what would normally be regarded as buildings. This arrangement of removing from the definition only the obviously inappropriate structures and leaving the main task of exemption to the regulations is the arrangement which the Government are convinced is the best one.
Let me explain the point a little further. As your Lordships will appreciate, there is a good case for exemption in many fields of activity other than agriculture. Statutory undertakers, such as Electricity and Gas Boards, industrialists and others, 1173 are all concerned with structures to which, for special reasons, the building standards regulations may well be inappropriate. We simply cannot put the line of demarcation into the Bill, because it is impossible to say where it should fall until it has been decided just what provisions should go into the building standards regulations. Surely the only practical and fair way of proceeding is to enter into discussion with the interests involved and arrive at a satisfactory list of exemptions. I hope that what I have said will give a certain amount of relief to a good many noble Lords about this subject. There will, of course, be ample time for such discussions. Indeed, it is hoped that in many ways the new system of building control will be less irksome than the old one.
I should like especially to make it clear that the Government understand very well the special circumstances of building works on farms, and we have every intention of ensuring that undue formalities are avoided. I should think it probable that there will be many classes of agricultural buildings that will be exempted outright; others will be classed as requiring only a minor warrant. When the time comes for procedural regulations to be made, we intend that, wherever possible, in the case of agricultural works the simplest of administrative arrangements should be made. The preparation and production of plans, for example, will be reduced to the minimum; and, in particular, care will be taken that no unnecessary work will be demanded that might embarrass or impede the farmer who wishes to get on with the job. Regarding the minor warrant, this will probably cover all small agricultural buildings, and in the case of minor warrants it is quite reasonable to expect that only sketch plans would be required. Therefore, there is no question of expensive and complicated plans having to be submitted for any small works on a farm.
Noble Lords seem apprehensive that the provisions of this Bill are designed to hurt or to be vexatious to the landowner or the farmer. Quite frankly, nothing could be further from the truth. If there are any teething troubles—and personally I do not foresee any—noble Lords and others should make their representations about this and other matters when the draft building standards 1174 regulations are drawn up, not now. If they are still not satisfied at that stage they can then demand a public inquiry. I can assure noble Lords that if they adopt this procedure they will certainly, unlike the Russians, prevent any possible teething trouble from developing into toothache. I can assure noble Lords that we have no intention whatsoever of creating difficulties for anyone, least of all the farmers. With this assurance, I hope that the noble Viscount will not press his Amendment.
VISCOUNT STONEHAVENI have no intention of pressing my Amendment, but perhaps I did not make myself quite clear on one point. What I did say to begin with was that I recognised that my Amendment went much too far, but I used it as a peg to hang my hat on, so to speak, to discuss the general problem, and to get, as we have done, a fairly satisfactory statement from the Minister. But I am very sorry indeed that my noble friend opposite thinks that I ought to be in gaol. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.0 p.m.
§ LORD FORBESThis Amendment expands the definition of the word "road". The Amendment does not in any way change the intention of the original definition, but it puts it beyond doubt that the definition is as wide as it should be—including pavement, footpath, drain, ditch or verge at the side of a road or street. I beg to move.
§ Amendment moved—
§ Page 26, line 6, at end insert ("and any pavement, footpath, drain, ditch or verge at the side of a road or street:")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ LORD FORBESThis is a technical drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 26, line 34, after ("amended") insert ("applied").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Clause 27, as amended, agreed to.
§ Clauses 28 to 30 agreed to.
§ First Schedule [Enactments relating to dean of guild court functions]:
§ LORD MATHERSNoble Lords know that I included this Amendment in the remarks that I made previously. I 1175 formally move that the First Schedule be omitted.
§ Amendment moved—
§ Leave out the First Schedule.—(Lord Mathers.)
§ LORD FORBESFor the reasons I gave at the beginning of this Committee stage, I cannot accept this Amendment.
§ On Question, Amendment negatived.
§ First Schedule agreed to.
§ Second and Third Schedules agreed to.
§ Fourth Schedule [Matters in regard to which building standards regulations may be made]:
§ LORD FORBESThe Fourth Schedule to the Bill gives a broad indication of the matters which will in due course be covered in detail by the building standards regulations. This Amendment adds to the Fourth Schedule a specific reference to gas and electricity installations, since it is the Government's intention to be able to include in the regulations provisions designed to secure the fullest measure of safety in gas and electricity installations. I beg to move.
§ Amendment moved—
§ Page 32, line 18, after ("including") insert ("services, installations and ancillary equipment for the supply or use of gas or electricity and").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Fourth Schedule, as amended, agreed to.
§ Fifth Schedule agreed to.
§ Sixth Schedule [Recovery of expenses by charging order]:
§ LORD FORBESThis is a drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 33, line 32, leave out first ("and").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Sixth Schedule, as amended, agreed to.
§ Seventh Schedule agreed to.
§ Eighth Schedule [Transitional provisions]:
§ LORD FORBESThis Amendment provides for inspection and tests to be carried out on buildings which have been begun before the coming into effect of the Bill. I beg to move.
§ Amendment moved—
§ Page 35, line 3, leave out ("section six and section nine") and insert ("sections six, nine and sixteen").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ LORD FORBESThis is a drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 36, line 11, after ("subsections") insert ("(2)").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Eighth Schedule, as amended, agreed to.
§ Ninth Schedule [Minor and consequential amendments of enactments]:
§ 6.6 p.m.
§ LORD FORBESThis Amendment has the effect of adjusting the existing law in landward areas, which at present enables the local authority to prevent undue obstruction of roads by building materials by empowering them to take the materials away and sell them, but provides that the builder can protect himself by obtaining permission in advance. This adjustment marries up with the new clause which we have already discussed, by providing that permission can be given by the buildings authority under that clause. I beg to move.
§ Amendment moved—
§
Page 37, line 2, at end insert—
("1. In the Turnpike Roads (Scotland) Act, 1831 (as set out in Schedule C to the Roads and Bridges (Scotland) Act, 1878), section eighty-seven shall have effect as if for the proviso to that section there were substituted the following proviso, that is to say,—
'Provided that nothing in this section shall apply to any materials laid or left upon any road or any footpath or side drain or ditch of such road in pursuance of a permission granted under section (Occupation of parts of roads for deposit of materials, etc.) of the Building (Scotland) Act, 1959.' ")—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ LORD FORBESThis is a drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 37, line 13, leave out ("erecting, taking down") and insert ("constructing, extending, demolishing, maintaining").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ LORD FORBESThis is another drafting Amendment. I beg to move.
§ Amendment moved—
§ Page 37, line 15, leave out ("subsection (11) of section six") and insert ("section (Occupa- 1177 tion of parts of roads for deposit of materials, etc.)").—(Lord Forbes.)
§ On Question, Amendment agreed to.
§ Ninth Schedule, as amended, agreed to.
§ Remaining Schedule agreed to.
§ House resumed.