HL Deb 01 August 1961 vol 234 cc79-82

After Clause 10, insert the following new clause:

Overruling of objections to streets becoming maintainable highways

(".—(1) Where by virtue of an objection made in pursuance of section two hundred and two of the principal Act (which provides that where street works have been executed in a private street or part of it. the street works authority may by notice make the street or part of a highway maintainable at the public expense unless the owner or a majority of the owners of the street or part object) a private street within the meaning of that section or a part of such a street is prevented from becoming such a highway, die street works authority may, within two months from the expiration of the period mentioned in subsection (1) of that section, apply to a magistrates' court for an order overruling the objection.

(2) If an order overruling the objection is made in pursuance of the foregoing subsection and no appeal against the order is brought within the time limited for such an appeal, the street or part in question shall become a highway maintainable at the public expense on the expiration of that time; and where such an order is made or refused and an appeal, or an appeal arising out of that appeal, is brought against or arises out of the order or refusal, the street or part shall become such a highway on the final determination of the matter in favour of the authority or on the abandonment of the appeal by the objectors.

(3) Any power, however worded, to enlarge the time for appealing or seeking leave to appeal shall not be exercisable for the purposes of this section.")

The Commons agreed to the above Amendment, but proposed the following Amendment thereto— Line 23, leave out from beginning to ("shall") in line 24 and insert ("Notwithstanding anything in any other enactment or provision, for the purposes of this section the time for bringing or seeking leave for any appeal (including an application for certiorari) shall be two months from the date of the decision or of the conclusion of the proceedings appealed against, unless apart from this subsection the time is less than that period; and any power, however worded, to enlarge any such time").

LORD HAWKE

My Lords, this is a Commons Amendment to an Amendment moved in this House, and the subject is the turning of a private street into a highway. As the law stands at the moment, under the Highways Act, 1959, Section 202, when any works have been done in a private street the highway authority can put up a notice and, after one month, can turn that private street into a highway. But if there is any objection by an owner, or by the majority of owners, if there is more than one, that proposal can be completely blocked. Conversely, if the street works are concluded satisfactorily and application is made by a majority in rateable value of the frontagers within three months, the authority must declare it a highway.

In your Lordships' House a new Clause 11 was inserted in the Bill which had the effect that if the frontagers blocked the turning of the private street into a highway, then the local authority could go to the court for an order overruling this blocking. This procedure was subject to the normal appeal procedure from magistrates' courts. Between leaving here and reaching another place it became clear to the draftsmen that the new clause could produce certain grave practical difficulties, and the Government, by an Amendment in the other place, have sought to put this situation right.

The first difficulty is the general one, that it is essential that there should be some time limit for litigation on the status of a road, for during the period of litigation the owners would have no incentive to repair it and the highway authority would have no legal power to do so. The Amendment moved in the Commons seeks to put this right by imposing a maximum time limit of two months from the date of a decision by a court for any further appeal: in other words, if the objecting party has gone to court and lost his case, unless he appeals within the normal time, or within two months, whichever is the lesser period, then the authority can go forward and turn the street into a highway. This period amply covers the normally expected type of appeal—that is, fourteen days from the magistrates' court to quarter sessions, or by way of a case stated to the High Court, and six weeks to the Court of Appeal.

The other difficulty is the possibility of doubt as to whether an application for a Writ of Certiorari is or is not an appeal. Certiorari is rather beyond my usual ken, but I was rather fortunate in having a lawyer staying in the house over the week-end, and he was able to explain to me something of what it means. I understand that it means that the applicant seeks to show that the court which gave judgment had no jurisdiction in the matter. Apparently, he has six months in which he can put forward this plea. If certiorari is not an appeal within the normal meaning of English, then the proceedings may hang on for six months from a court decision. If it is an appeal, then the two-months limit would cover it. There is some slight doubt about this, though I believe it is generally recognised that this is so. However, it is better to resolve that doubt now by making the time limit cover certiorari and to put it in the Bill.

The only point raised in another place was the question of diminishing the length of time of the starting of certiorari proceedings. I submit that that is not likely to occur. The general public good is to get the status of the street fixed as soon as possible, and I submit that the theoretical variation of the citizen's right is not a high price to pay. We are not in any way denying a right to appeal; we are only suggesting that the appellants make up their minds whether to do so rather more quickly than they might have to do in some cases. I beg to move that this House doth agree with the Commons in their Amendment to the Lords Amendment.

Moved, That this House doth agree with the Commons in their Amendment to the Lords Amendment.—(Lord Hawke.)

On Question, Motion agreed to.