§ 7.23 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 Molson.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF BUCKINGHAMSHIRE in the Chair.]
§ Clauses 1 to 3 agreed to.
§ LORD CHORLEY moved, after Clause 3 to insert the following new clause:
§ Rights of certain councils to maintain county roads
§ ". In subsection (2) of section forty-five of the principal Act (which precludes the council of a non-county borough or urban district council who failed to make a claim under section thirty-two of the Local Government Act, 1929 from making such a claim under section forty-live of the principal Act) the words ' not being a county road with respect to which they might have made such a claim under section thirty-two of the Local Government Act, 1929, but failed to do so within the time limited by that section' shall be omitted and in paragraph 1 of Part I of the Eighth Schedule to the principal Act (which prescribes the period within which claims may be made by the councils of non-county boroughs and urban districts under the provisions of section forty-five of that Act to maintain county roads) the words 'for the first time' be omitted."
The noble Lord said: In rising to move the Amendment standing in my name, I regret that this is rather a technical matter and I shall not be able to put the case before your Lordships in quite the same snappy way that the noble Viscount, Lord Simon, has been familiarising your Lordships with in connection with the last Bill. This Amendment involves Section 45 (2) of the Highways Act, 1959, and in order to explain it I feel that I must remind your Lordships of the provisions of that subsection. It says:
Where a non-county borough or urban district has a population exceeding twenty thousand, the council of the borough or district may, within the period specified in that behalf in Part I of the Eighth Schedule to this Act, claim to undertake the maintenance of any county road within the borough or district, not being a county road with respect to which they might have made such a claim under section thirty-two of the Local Government
Act, 1929, but failed to do so within the time limited by that section.
Your Lordships will observe that by the words of that subsection
… not being a county road with respect to which they might have made such a claim under section thirty-two of the Local Government Act, 1929, but failed to do so within the time limited by that section",
the non-county borough or the urban district council who failed to claim under Section 32 of the Local Government Act, 1929, is precluded from making such a claim under Section 45 of the 1959 Act. Further, paragraph 1 of Part I of the Eighth Schedule to the 1959 Act specifies the period within which that claim under the provisions of Section 45 of that Act may be made by the council, again of a non-county borough or urban district, to maintain county roads within their districts, in the following words:
In a case where the population of the non-county borough or urban district is found by the Registrar-General's preliminary report on any census taken after the commencement of this Act Ito exceed for the first time"—
I ask your Lordships to note those words—
twenty thousand and the road is a county road at the, date of the publication of that report, the claim may be made within twelve months from that date.
There are 23 urban district councils (and I should say that this Amendment and the others down in my name are being moved on behalf of the interests of the urban districts) which for a variety of reasons either failed to exercise the right to make such a claim under Section 32 of the 1929 Act on the occasion when the population of the district was first reported to have attained the qualifying number or, as an alternative, accepted responsibility for the maintenance of county roads under agreements delegating such powers from the county council or under agreements by which the district council acts as agent to the county council.
§ By reason of the limitation of the opportunity afforded to make a claim as of right to exercise the functions of maintenance of county roads these councils have lost, apparently for all time—at any rate, subject to some new Act of Parliament—irrespective of how much the population may be in excess of 20,000, the right to exercise the functions of maintenance of county roads within their districts. Of these 23 urban 235 district councils, no fewer than 12, I understand, have expressed a keen desire to have the further opportunity to claim to exercise the functions of maintenance of county roads as of right within their districts. According to the Registrar-General's Preliminary Report on the recent census, a further 28 urban districts have for the first time attained a population exceeding the 20,000 mark, and there is no doubt that many of these councils will be exercising their rights under the Statute to maintain county roads within their districts.
It is not the desire of these urban districts, so I am informed, that such councils shall be permitted to exercise the right of claiming to maintain these highways at any time after the attainment of a population of 20,000, but that they be empowered to exercise the right after each census and within a period of twelve months after the publication of the Registrar-General's Preliminary Report on the census, and not be limited to the first occasion when the Registrar-General's Preliminary Report on the census reveals a population exceeding 20,000. These limitations, I suggest, are altogether cramping. It is obviously very easy to miss the chance, so to speak, and then, apparently, one misses it for all time. It is quite simple to put this right by the deletion from subsection (2) of Section 45 the words
…not being a county road with respect to which they might have made such a claim under section thirty-two of the Local Government Act, 1929, but failed to do so within the time limited by that section.
and from paragraph 1 of Part I of the Eighth Schedule to the Highways Act, 1959, the words,
for the first time".
If these words were taken out the whole situation would be righted. I hope your Lordships will agree that this would be a reasonable thing to do and that this is a convenient opportunity for taking this course. I beg to move.
After Clause 3, insert the said new clause. —(Lord Chorley.)
§ 7.30 p.m.
§ LORD CHESHAM
I think I should point out to your Lordships that the form the noble Lord's Amendment takes is to move a completely new clause into the 236 Bill. He has told us he does this with the support, or at the instigation, of the Urban District Councils Association. I think that is what he said. What worries me about this, in the circumstances, is that they are not the only authority involved. I do not think I need follow the noble Lord into a great deal of technical detail about which he told us in moving the Amendment because of the rather important matters of principle which are involved.
If this Amendment should be accepted, the urban district councils would receive certain powers, and those functions would be taken away from the county councils. Obviously, therefore, it involves material alteration to the present situation in technical, financial and administrative responsibilities as they are at present divided between the two kinds of highway authority. I feel the noble Lord will understand, and not think that I am being unfriendly, when I say that the matter which is the subject of his Amendment is one that has not hitherto entered into our proceedings. It did not come up on Second Reading, and his Amendment was put down only yesterday. I think it would be wrong to accept an Amendment of this kind without full consultations having taken place between the authorities involved. I understand that that has not been done, but my noble friend Lord Molson will no doubt confirm that or otherwise.
What interests me a little more is that, so far as my right honourable friend's Department is concerned, there are some important questions of principle involved as to whether the efficient and economical maintenance of the highways will be promoted by this measure. Frankly, 24 hours is quite an inadequate time to consider such a matter. As I say, I do not wish to be unfriendly to the noble Lord—I merely mention that as a fact. Having regard to the factors I have mentioned, that there have not been full discussions between the various authority associations, and certainly not time for us to consider whether this would be beneficial for road maintenance, I must advise that this Amendment be not accepted.
§ LORD MOLSON
It was only at a few minutes to four yesterday afternoon that I learned from the noble Lord, Lord Chorley, that he was intending to put down this Amendment. Your Lordships 237 will have listened to his exposition of the extremely technical and difficult problem which is raised by this Amendment, and clearly there has not been time enough for this matter to be fully considered during that time. After all, there was ample opportunity for this matter to be raised in another place. I have managed to get in touch with the County Councils Association who were responsible for the drafting of this Bill, and I have asked their views upon this Amendment. It appears that the Urban District Councils Association have not been in touch with the County Councils Association upon the matter. It was briefly discussed last winter, but there is no agreement between the local authorities upon the subject.
There may be many occasions when it is necessary for this House to decide between the conflicting interests of local authorities, but I venture to suggest to your Lordships that it would be most unwise for us to come to any conclusion upon so complicated a matter as this at such very short notice, when there has been no proper discussion between the two associations concerned. For that reason, I hope the noble Lord will be willing to withdraw the Amendment, but in any case I hope your Lordships will not accept it.
§ LORD CHORLEY
I am much obliged to the noble Lord who represents the Ministry of Transport, and to the noble Lord, Lord Molson, for what they have said. I should like to explain that I was told that the Committee stage of this Bill would not be until the middle of next week. I have been away at quarter sessions, and I have not had time to turn round. I quite appreciate that this Amendment was put down very late in the day, but if the Government will give us so little time, it is more their fault than anybody else's. However, I appreciate that this is a matter in which the county councils have an interest, and as they have not had time to consider the matter and to consult with the other local authorities concerned I would ask your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 4 and 5 agreed to.
§ Clause 6 [Power to fill in roadside ditches, etc.]:238
§ 7.37 p.m.
LORD BURDEN moved, after subsection (3) to insert:
() Before exercising any of the powers of subsection (1) of this section in relation to a ditch within the area of a river board (not being a ditch to which section three hundred and eight of the principal Act is applied by the last foregoing subsection) the highway authority shall consult with the river board.
() Nothing in this section or done there-under shall prejudice or affect the operation of the Rivers (Prevention of Pollution) Act, 1951, or permit the doing of any act which would have been unlawful by virtue of the provisions of the said Act of 1951 if this section had not been enacted or no works thereunder had been executed, and accordingly every pipe substituted under the powers of subsection (1) of this section for a stream within the meaning of the said Act of 1951 shall, for the purposes of that Act, be deemed to be a stream within the meaning of that Act.
§ The noble Lord said: I appreciate that this Amendment is also a late arrival on the Marshalled List, but I think that in this instance there have been discussions between interested parties and the Ministry. The Ministry is not unaware of the points involved in this Amendment—at least, I am so advised. At the outset, I have to say that this Amendment has been put down at the request of the River Boards Association, and in those circumstances I have to declare an interest. Like some other noble Lords, I have the honour to be one of the Vice Presidents of that Association. River boards are concerned with the works to be carried out under Clause 6 of this Bill from two standpoints: first, land drainage and, secondly, pollution. The position so far as the first is concerned, as I readily agree, has been to some extent met by the applying of Section 308 of the Highways Act, 1959, bringing in that section by subsection (3) of Clause 6. But it will be noticed that Section 308 of the Highways Act, 1959, applies only to main rivers as being the only watercourses under their jurisdiction.
§ The problem with which this Amendment seeks to deal is this. Few, if any, of the ditches within the scope of Clause 6 of the Bill would be of sufficient size and importance to justify being designated as main rivers. Therefore, as the Bill stands, unless this clause is amended, the river boards would have no control at all over the operations of the highway authorities. Without in any way 239 reflecting on the admirable work of local authorities and highway authorities, I am advised that experience has shown the necessity for some measure of control, because in the past highway authorities have used pipes of insufficient capacity, resulting in flooding of the surrounding land. The Association believe that it would be in the interest of both parties for consultation between the highway authority and the river boards to take place. All that is asked for is consultation. Obviously the last word will have to rest with the highway authority if they take action against the advice of the highway authority.
§ There it is. There is nothing which the river board can do in the matter. But surely it is not too much to ask that, before action is taken which may result in damage and loss to very valuable agricultural lands, perhaps owing to inexperience in the problems involved, the river boards' wealth of experience should be placed at the disposal of the highway authorities. I should emphasise that it is consultation only that we are asking for in this Amendment.
§ So far as the second part of the Amendment is concerned the interest of river boards from the pollution angle is to ensure that no polluting effluent is discharged into the substituted pipe which from there finds its way into a water course. A highway ditch is of course a water course for the purpose of the Rivers (Prevention of Pollution) Act, 1951, but a substituted pipe for a water course would not be a water course, as I am advised. That means that the situation which the river boards particularly wish to guard against is this. No connection is made to the pipe which is substituted for the water course by another pipe draining the adjoining land. As matters now stand such a connection if made to a water course would require the consent of a river board. In other words, this clause, as it stands, by converting a water course into a piped method of disposal lessens the powers of authority of the river boards and there would be no opportunity of taking action under Section 7 of the 1951 Act if anyone discharged polluting matter into a drain, if I may use that term, which ultimately found its way into a river.240
§ It seems somewhat strange that the Bill which we were discussing before dealing with this Bill is one for the prevention of pollution to rivers and the case which I have endeavoured to submit to your Lordships is that this Bill as it stands now without the Amendments which I beg to submit to your Lordships will actually provide opportunities for the increase of pollution to rivers. Or, to put it in another way, this Bill as it stands withdraws or lessens the powers of authority of river boards to prevent pollution. That is the case which I venture to submit to your Lordships and I sincerely trust that, if it cannot be accepted now, there may be some opportunity between the Committee stage and Report stage to see whether some measure of accommodation can be reached. I beg to move.
Page 5, line 43, at end insert the said subsections.—(Lord Burden.)
§ LORD MOLSON
I hope to persuade your Lordships that this Amendment, which falls into two separate parts, is really based upon a misapprehension. I am quite sure that we are all extremely anxious to ensure that this Bill does not in any way impinge upon the provisions of the Bill which has just passed through its Committee stage, and we are all most anxious to make certain that there is no pollution of the waters.
The first point I would make is this. Clause 6 widens the powers of the highway authorities only in order to enable them to do in the interests of road safety what they have always been able to do since the passing of the Act of 1959 (which, in this matter, re-enacted a provision of the Act of 1835) for drainage purposes. Therefore it is important to consider whether it is desirable to introduce special provisions in respect of this very minor extension of the existing powers when those safeguards do not exist in the case of the major exercise of those powers. So far as I am aware—and I have made inquiries about this—there has been no ground for complaint in regard to the operation of Section 308, which, as I say, has in its present form been in operation since 1835. Therefore I very much doubt whether there is any need for a provision of this kind.
241 As regards the matter of pollution, I am advised that it would not be the case, after a ditch had been enclosed and the flowing water was passing through a pipe, that it could then be argued, or at any rate that the courts would uphold the contention, that the authority which had done so, or the landowner, was entitled to do through a pipe what he had not been entitled to do at the time when it was an open ditch. In any case, there is nothing in this Bill which affects the operation of Section 2 of the Rivers (Prevention of Pollution) Act, 1951, which reads as follows:Subject to this Act a person commits an offence punishable under this Section—(a) if he causes or knowingly permits to enter a stream any poisonous, noxious or polluting matter…Now it is not, I am advised, the case that, because the ditch is replaced, is filled in, and a pipe is inserted to carry the water, that will have any effect upon that general provision. And that being so I submit to the noble Lord that there is no need for this Amendment.
As regards the matter of consultation, that is at the present time normally the rule and the practice. Again I am told that there has been no complaint on this score in the past, and I venture to suggest therefore that there is no need to provide for it. I would also point out that this clause does not give any right of entry, so that it would be necessary to obtain either the consent of the landowner or an order from a court; and therefore I think that this matter is abundantly covered. I hope that, with that explanation of what I am advised is the present law, the noble Lord will not press his twofold Amendment.
§ THE EARL OF ALBEMARLE
I wish to rise in support of the River Boards Association's desires. I therefore declare my interest, like the noble Lord, Lord Burden. I am not convinced by the noble Lord, Lord Molson, because I feel that unless this Amendment is added we, the river boards, will be prejudiced in our action, because we can deal only with main rivers: this pipe put us out of court, and we must have the power to track down the various flows of water down which the pollution is seen to have come. Therefore, I am afraid I must strongly support the Amendment so well moved by the noble Lord, Lord Burden.
§ 7.52 p.m.
§ LORD CHESHAM
I think I ought to intervene at this stage, because there is another aspect of this Amendment to which I should draw your Lordships' attention. That is, if we were to accept the Amendment of the noble Lord, Lord Burden, we should be creating an anomaly in the legal position. It is not a very big one, but it is an anomaly none the less; and I am sure that noble and learned Lords, and noble Lords generally, will agree that anomalies in the law are undesirable. The noble Lord, Lord Burden, explained Section 103 of the Highways Act and drew our attention to the effect of Section 308. But one must regard the provisions of Clause 6 of the Bill as being only a very minor extension of the powers of Section 103. If we did what the noble Lord asks, and this Amendment were accepted, the protective provisions over the minor extension would be greater and wider than they are over the major powers already contained in Section 103. I hope I have made that clear. On that ground alone it is undesirable that this Amendment should be accepted. That applies, of course, to the Amendment as a whole.
Perhaps I may, as the noble Lord did, divide it into consultation and pollution—that point, of course, applies to the consultation. But I should like the noble Lord to think of this: that it would be a matter of normal sensible day-to-day administration for the highway authority to consult the appropriate river board as a matter of common sense, even if they need not do so. They would have everything to gain by doing so. if they do not, and if their efforts should cause flooding—which is really the fear in this case—the floods will do one of two things: they will either damage the adjoining land, in which case the authority will run the risk of a claim for compensation from the landowner; or they will damage the highway and they will have to put that right themselves. So they have everything to gain by consulting as a normal sensible process. It is the intention of my right honourable friend's Department, if this Bill becomes law, to issue an explanatory memorandum to highway authorities, which is a thing we always do when there is new legislation concerning highways; and among other things we propose to emphasise the great desirability of prior 243 consultation with river boards before such work is undertaken. I hope that the noble Lord will accept that from me as sufficient safeguard in the case of consultation.
On the question of pollution, I do not want to go into the technicalities. I listened very carefully to what my noble friend Lord Molson said about this, and I am bound to say that I, too, am advised that, broadly speaking, the fears of the river boards on this are not well-founded. I am advised that in point of fact the legal argument advanced by the noble Lord is not quite right. So far as I can see, it is extremely doubtful how any pollution that took place, even through a pipe, could avoid the penalty for an offence under Clause 2. The noble Lord mentioned Clause 7 as well, and I would go so far as to say that there may be (perhaps I might call it) the shadow of a point in this. But in any case it seems to me that prosecution could still take place under this clause, since it would be a question of a pipe having been put in the ditch and the landowner having put another pipe into the ditch pipe. If it was not possible to prosecute him when it came out of the first pipe, it would be when it came out of the other—if I may put it like that. The argument the noble Lord has put forward is not quite correct, I think, and I hope that he will not press his Amendment.
§ LORD BURDEN
I am bound to say I am still absolutely unconvinced. The noble Lord, Lord Molson, said that no complaints have been made. But against that I put the statements of the River Boards Association—and those statements are made as a result of meetings and correspondence, and so on, from responsible officials of river boards—that flooding and other damage has taken place as a result of faulty small pipes being connected by highway authorities without prior consultation. I understand that these points have been put to the Ministry. The noble Lord, Lord Chesham, says that it is only a minor extension of the powers of highway authorities under this Bill. Why not give a minor extension to the powers of the river boards? What anomaly is created there?
There is the consultation in regard to main rivers; the noble Lord will agree 244 with that—that is provided for. Why not provide for this consultation when similar work is going on? The noble Lord is quite illogical in regard to it, giving a minor extension of powers, on the one hand, but saying, "Oh, no, you create a legal anomaly if you give it to somebody else." That is the noble Lord's position.
§ LORD MOLSON
May I intervene? The noble Lord's Amendment will not in any way affect the powers exercised under Section 103 of the principal Act.
§ LORD BURDEN
I agree. The point is this. I was dealing with the expansion of the powers of highway authorities which is admittedly taking place. That is a minor extension under this Bill. The noble Lord has told us about that one extension. What the river boards are saying is, "All right, but at the same time as that minor expansion takes place, and not because we want work, we say it is in the public interest to safeguard agricultural and other land", and so on.
Look at the position in which landowners and farmers are put! Supposing there is a small faulty pipe and the farmer gets his land flooded and there is loss as a result. Look at the consequences to the farmer! The highway authority and local authority have to be prosecuted; he has to prove his case. If there had been time, some of us would have gone to the Ministry of Agriculture and asked them to say, "We have to safeguard the production of corn and other things in the national interest, and not stand on a sticky point about improving minor powers, expanding them to one and taking them away from the other."
The next point concerns a section of the 1951 Act which was read by the noble Lord, Lord Molson. He pointed out that action can be taken against a person who causes polluted matter to run into a river. The inference from that was that, if polluted matter flows from a pipe into a river, action can be taken—if it can be proved that it is polluted matter that is flowing in. From the noble Lord's remarks I draw the clear inference that my contention in regard to pipes and so on is not valid. I could not say that it would not "hold water", because we are talking about it holding something other than water. Supposing the highway authority connects a pipe 245 which allows polluted matter to flow into the main pipe. Is the river board to take action against the local authority?
That is the sort of dilemma with which one is faced. As I say, I am absolutely unconvinced in regard to this matter. If there were more time to look at it in conjunction with the Ministry of Agriculture, whose responsibility it is to safeguard agriculture, I am sure they would say that these two Amendments are put forward by responsible people, knowing what is necessary in order to safeguard the interests which are entrusted to their care. I do not withdraw the Amendment.
§ On Question, Amendment negatived.
§ Clause 6 agreed to.
§ Clauses 7 and 8 agreed to.
§ Clause 9 [Supplementary provisions as to removal of obstructions from highways]:
§ 8.3 p.m.
THE DEPUTY CHAIRMAN OF COMMITTEES
On Clause 9 there are three manuscript Amendments in the name of the noble Lord, Lord Amherst of Hackney.
LORD AMHERST OF HACKNEY moved, in subsection (1) (c), to leave out
except where the obstruction was caused by some other person".
The noble Lord said: I must first apologise to your Lordships for putting down a manuscript Amendment at such short notice. This was due to certain misunderstandings. There are three manuscript Amendments and, with your Lordships' permission, I will take all three together. As there are not many copies, I think I should read out the Amendments. They are to Clause 9, at page 7, line 17, to leave out from the beginning to "recover" in line 18; in line 19, after "caused" insert "or contributed to"; and in line 24 to insert at the end
, so however that no such expenses shall be recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction.
The effect of these Amendments is that paragraph (c) will read:
recover from the owner of the thing which caused or contributed to the obstruction"—
and so on to the end of the paragraph—
conferred by this subsection, so however that no such expenses shall be recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction.
§ The Amendments raise a small but I think not unimportant point. It was a point which was referred to on Second Reading by the noble Lord, Lord Silkin. Clause 9 deals with the question of the obstruction of highways, and paragraph (c) deals with the recovery of the cost of removing the thing which obstructs the highway—it may be a tree or a fall of earth or a dry stone wall, or something of that kind. Under the Bill as it stands, if a tree falls, or there is a cloudburst and a lot of earth is brought down on to the road, or some motorist knocks down a wall and the stones are in the highway, and the highway authority decides to recover the cost of removal, the owner has no defence unless he can put the blame directly on to some other person. Therefore he may be liable to pay for something for which he is in no way responsible. I feel that this is contrary to the general principles of Common Law and equity.
§ These Amendments seek to ensure that if the highway authority seeks to recover the cost of removing the thing, the owner of whatever causes the obstruction will not be liable if he can prove—and he has to prove it—that he took reasonable care to secure that the thing in question did not cause or contribute 'to the obstruction. In fact, if what happens could not have been foreseen or was caused by circumstances outside the owner's control, then that would be a defence to the owner against a claim by the 'highway authority for the cost of removal. I shave tried to make myself clear. It is a rather complicated point. I beg to move the first of my manuscript Amendments.
Page 7, line 17, leave out from beginning to ("recover") in line 18.—(Lord Amherst of Hackney.)
§ LORD MOLSON
I think the noble Lord, Lord Amherst of Hackney, has made out a strong case for the acceptance of this Amendment. It was one of the points raised by the noble Lord, Lord Silkin, on Second Reading. At that time 1 was inclined to doubt whether it was in accordance with the existing principles of the law. And I believe that 247 with a Bill of this kind we ought, so far as possible, to try to maintain the general principles of the law that applies as regards accidents of all kinds. I am now satisfied that this Amendment is generally in line with the existing law. I feel that it would be a hardship upon an individual, where he has taken all reasonable care to ensure that an accident does not happen, and what could not have been reasonably foreseen happens; and I see no reason why he should be penalised in that way. I hope your Lordships will accept the Amendment which has been moved by my noble friend.
§ LORD SILKIN
I do not think it is necessary for me to speak on this, because this is the very point I advocated on Second Reading, and I am very glad that the noble Lord, Lard Molson, has had the good sense to accept it.
§ THE EARL OF IDDESLEIGH
I must declare an interest in this matter as I have trees on the verge of a road. I am in favour of the Amendment: it seems to me very sound. But as a matter of precedent, it appears to me that a manuscript Amendment of this very considerable importance moved in Committee requires some explanation. Surely we could have had some notice of the Amendment, since it was mentioned in a Second Reading speech, and if that was impossible it could have been put down for the Report stage. As something of a stickler for precedent, I must criticise the fact that we are faced with a manuscript Amendment in this matter, and I hope that we may receive some explanation.
§ LORD MOLSON
Many of us have protested this afternoon at the short time we have had for our Amendments. I do not know where the blame lies. If any attaches to me I will gladly accept it, but we have had to do a good deal of rapid thinking. There has been consultation between the people concerned. I have certainly been willing to be convinced by what I believe to be sound reasoning. I apologise to my noble friend Lord Iddesleigh. I entirely agree that the moving of manuscript Amendments is extremely undesirable, but in view of the fact that an Amendment of this kind had been advocated by the noble Lord, the Deputy Leader of the 248 Opposition; that it had been pressed by the Central Land Owners' Association; that it proved to be acceptable to the Government, and that I was convinced that it was just—for all those reasons it seemed to me to be a case where we should use both the flexibility of our minds and of the procedure of this House and accept the Amendment.
§ On Question, Amendment agreed to.
Page 7, line 19, after ("caused") insert ("or contributed to").—(Lord Amherst of Hackney.)
§ On Question, Amendment agreed to.
Page 7, line 24, at end insert, ("so however that no such expenses shall be recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction.").—(Lord Amherst of Hackney.)
§ On Question, Amendment agreed to.
§ Clause 9, as amended, agreed to.
§ Clause 10 agreed to.
§ 8.15 p.m.
§ LORD CHORLEY moved, after Clause 10 to insert the following new clause:
§ Adoption of private street after execution of street works
". The proviso to subsection (1) of section two hundred and two of the principal Act as hereby repealed and the following subsection shall be inserted after subsection (1):—
(1A) If within the period aforesaid the owner of the street or, if more than one, the majority in number of the owners thereof by notice to the authority object to the street being declared a highway maintainable at the public expense, and the objection is not withdrawn, the street works authority may, after the expiration of that period, apply to a magistrates' court to appoint a time for hearing and determining the objection so made within that period and shall serve on the objector or objectors notice of the time and place so appointed. The costs of any proceedings before a magistrates' court in relation to such objection shall be in the discretion of the court.
The noble Lord said: The object of this Amendment is really to alter the proviso to Section 202 (1) of the Highways Act of 1959. This subsection is in these words:
When any street works have been executed in a private street, the street works authority
may, by notice displayed in a prominent position in the street, declare the street to be a highway which for the purposes of this Act is a highway maintainable at the public expense, and on the expiration of the period of one month from the day on which the notice was first so displayed the street shall become such a highway provided"—
and this is the proviso which I suggest we should amend—
that the street shall not become such a highway by virtue of this subsection if, within the said period, the owner of the street, or, if more than one, the majority in number of the owners thereof, by notice to the authority object.
Your Lordships will observe that by the proviso a street works authority can, by the mere formality of the service of a notice of objection by the owner of the street, or, if there are more than one, a majority of their number, be precluded from adopting a private street as a highway maintainable at the public expense. The Urban District Councils Association take the view that arbitrary action of this kind should not in fact be available and that a measure of independent adjudication should be provided to determine any such objection. They suggest—and this is what, in effect, appears in the Amendment—that the appropriate body to determine such an objection is a magistrates' court who, by Section 178 of this Act, are authorised to determine objections made by owners of premises to proposals of a street works authority to carry out private street works, and therefore appear to be the right authority to determine a dispute of this kind. I hope your Lordships will make this reasonable Amendment to the Bill and on that basis I beg to move.
After Clause 10, insert the said new clause. —(Lord Chorley.)
§ LORD CHESHAM
I wonder whether I may be allowed to step slightly out of order and ask your Lordships' leave to say something on this Amendment and say it only once, because it is the same as I was proposing to say on the next Amendment, as and when the noble Lord comes to move it. Of course, I could say the same as I said earlier about the noble Lord's first Amendment on the Paper appearing rather late, but I do pot do so because fortunately this Amendment does not raise the same kind of rather important point of principle as was raised by his first Amendment. 250 All I have to say is that I believe your Lordships consider this Amendment is acceptable and that the provision which it makes is probably quite useful, even if not to the extent that I greet it with the most tremendous enthusiasm. But certainly I do not know of any reason for not accepting this Amendment, although I am sorry I must say that if your Lordships do see fit to accept it then the drafting, I think, will require a little attention. It is a little suspect. It may be necessary to consult with the noble Lord about putting down a redrafted Amendment if your Lordships accept it at a later stage, but for drafting reasons only.
§ LORD MOLSON
With some difficulty because of the shortness of the notice, I have consulted the County Councils Association about this Amendment, and although they show no great enthusiasm for it and doubt whether there is any great need for it, they have no strong objection to it. Therefore I am happy to accept this Amendment moved by the noble Lord, Lord Chorley, and I hope it will prove acceptable to your Lordships.
§ LORD CHORLEY
I am very grateful for the reception which this Amendment has received. If not enthusiastic, it is at any rate sufficient to carry it through. I need hardly say, in respect of the drafting, that if there is anything wrong with it I shall be very happy indeed to accept the advice of the Government's draftsmen. May I ask whether it would be better to withdraw it now and put it down at the next stage, or should it be accepted now?
§ LORD CHESHAM
I think the more customary procedure is to withdraw it, on the undertaking that the drafting will be looked at, and to put it down more or less formally at a later stage.
§ Amendment, by leave, withdrawn.
§ 8.22 p.m.
§ LORD CHORLEY moved, after Clause 10 to insert the following new clause:
§ Contribution by street works authority to expenses of street works
§ ". In subsection (2) of section two hundred and ten of the principal Act (which empowers the street works authority to bear the whole or a portion of the expenses of any street works 251 which would otherwise be apportioned on or to the owner of any premises of which only the rear or a flank fronts the street) the word 'only' shall be omitted."
The noble Lord said: This is really an Amendment which I put down some time ago to another Bill but which the Government spokesman felt would be more appropriate in this Bill, which was known to be coming along. Therefore, on the basis that it would be acceptable later, I withdrew it then. The point concerns the contribution by street works authorities to expenses incurred in street works. Subsection (2) of Section 210 of the Highways Act, 1959, is in these terms:
Without prejudice to their powers under the foregoing subsection, a street works authority may at any time resolve to bear the whole or a portion of the expenses of any street works in their area under the code of 1892 or the code of 1875 or under a provision in a local Act relating to such works, being expenses which would otherwise be apportioned on, or to the owner of, any premises of which only the rear or a flank fronts the street, and where an authority so resolve the liability of the owner of those premises in respect of those expenses shall be treated as discharged or reduced accordingly".
§ Your Lordships will observe that, as at present enacted, the power of a street works authority to contribute to the expenses of an owner of premises fronting a street under this provision is restricted to the expenses of an owner having only either a rear frontage or a flank frontage. There is a good deal of experience which has shown that, by reason of the direction of the boundary line of a street, an owner of premises liable to apportionment and street works charges may have both a front and flank frontage to a street, but by reason of the limitation of the provisions to which I have referred—that contributions may be made towards 'the expenses of an owner of premises having a flank frontage only—no contribution can be made to an owner in such circumstances towards the expenses of his flank frontage; and it is desirable, it seems, that a contribution towards the flank frontage may in these circumstances be made at the discretion of the street works authority. This could also be achieved by the slight amendment of deleting the word "only" from the provisions of subsection (2) of Section 210 of the 1959 Act. I beg to move.252
After Clause 10, insert the said new clause.—(Lord Chorley.)
§ LORD MOLSON
There is an expression in colloquial conversation, "climbing on to the bandwagon". I have never quite known what a bandwagon is. I do not know whether it is a wagon which contains or carries a band; and, if so, I do not know why people should want to climb on to it. But anything in the nature of a Miscellaneous Provisions Bill tends to' be treated in both Houses as a bandwagon, and I am very glad indeed to think that the noble Lord, who has had this Amendment in mind for a long time and who was unable to get it incorporated in another Bill, should have been, as I hope he will be, more fortunate in the case of my Highways (Miscellaneous Provisions) Bill. I am very anxious indeed to provide transport for all good passengers, and I shall be very pleased if your Lordships will agree to the addition of the new clause moved by the noble Lord.
§ On Question, Amendment agreed to.
§ Remaining clauses agreed to.
§ House resumed.