HL Deb 07 April 1970 vol 309 cc87-96

6.37 p.m.

LORD HUGHES

My Lords, I beg to move that the Report be now received.

Moved, That the Report be now received.—(Lord Hughes.)

On Question, Motion agreed to.

LORD HUGHES moved Amendment No. 1:

Page 13, line 12, leave out subsection (7), and insert— ("(7) As soon as may be after the necessity for work under this section arises on a tree which is subject to a tree preservation order made under section 26(1) of the Town and Country Planning (Scotland) Act 1947 and before any such work is commenced, the highway authority shall give notice of the proposed work to the local planning authority within the meaning of section 2 of the said Act of 1947: Provided that if in the opinion of the high-way authority there is imminent danger from the tree falling on the road, they may dispense with the giving of such notice.")

The noble Lord said: My Lords, when the Bill was in Committee the noble Lord, Lord Ferrier, tabled an Amendment which would have required the planning authority to be consulted, except in case of emergency, where a tree was to be felled or lopped under Clause 19. He was good enough to withdraw the Amendment on my undertaking to put down another which would accomplish the same object. The Amendment which I now move requires the highway authority to give advance notice to the planning authority before work is begun, under Clause 19 of the Bill, to lop or fell a tree which is likely to create danger or obstruction on a highway. I would point out that the obligation to give notice is laid on the highway authority, and not on any other person who is required by them to lop or fell a tree. If in the opinion of the highway authority there is imminent danger from the tree falling on the road, they need not give notice. That is in keeping with the noble Lord's own Amendment. I think I should point out that there is nothing here which conflicts with Section 26 of the Town and Country Planning (Scotland) Act 1947, which provides for the making of tree preservation orders. The proviso to subsection (6) of Section 26 says that nothing in a tree preservation order shall prohibit the felling or lopping of any tree if such felling or lopping is urgently necessary in the interests of safety, or is necessary for the prevention or abatement of a nuisance, so long as notice of the proposed operations is given to the local planning authority as soon as may be after they become necessary. Section 26 also provides that a tree preservation order is overriden by a statutory obligation to fell or lop the tree, such as Clause 19 of the Bill would impose. In that case it would appear that no notice need be given to the planning authority, but I think it is only reasonable that they should have such notice, and my Amendment provides accordingly. I beg to move.

LORD FERRIER

My Lords, I appreciate the action of the noble Lord in this matter, and I assure him that his Amendment fully meets the point which I raised.

On Question, Amendment agreed to.

Clause 21 [Deposit of mud or liquid from vehicles on roads]:

LORD HUGHES moved Amendment No. 2:

Page 14, line 14, at end insert— ("(4) In this section, 'vehicle' includes anything towed or pushed by a vehicle and any appliance.")

The noble Lord said: My Lords, when the Bill was in Committee I promised to consider the point made by my noble friend Lord Kilbracken that Clause 21 might not cover mud dropped from a trailer or from equipment drawn by a vehicle. A trailer is covered by the clause as it stands, but it is possible that some kinds of farm implements or contractors' equipment would not come within the definition of a vehicle. The Amendment therefore makes it clear that the word " vehicle" includes anything drawn or pushed by a vehicle, and any appliance. I am grateful to my noble friend for bringing this to my attention. I beg to move.

On Question, Amendment agreed to.

LORD HUGHES moved Amendment No. 3:

After Clause 36, insert the following new clause:

Power to obtain road-making materials

"(1) The highway authority may enter any land to search for, dig and carry away materials for the purpose of making or repairing a highway and may carry such materials through the land of any person.

(2) Before carrying out any operations under this section, the highway authority shall serve notice of their intention on the owner and the occupier of the land concerned together with a description of the proposed operations and of the right to object thereto within 28 days after the service of the notice.

(3) Where the highway authority is a local highway authority and within the said period of 28 days the owner or the occupier objects to the proposed operations, and that objection is not withdrawn, the local highway authority shall not proceed to execute the operations without consent after mentioned but may refer the matter for the determination of the Secretary of State who may grant consent to the proposed operations either unconditionally or subject to such terms and conditions as he thinks just, or who may withhold his consent, and the decision of the Secretary of State on the matter shall be final.

(4) The highway authority shall pay compensation to the owner or occupier of the land for any damage done thereto by reason of the exercise of their powers under this section and for the value of materials carried away by them.

(5) Where an excavation is made by the highway authority in the exercise of their powers under this section, the authority shall—

  1. (a) while the work is in progress, and there-after so long as the excavation remains open, keep the excavation sufficiently fenced to prevent accidents to persons or animals,
  2. (b) as soon as is reasonably practicable after the completion of the work, fill up the excavation or slope it down and fence it off, if the owner or occupier so requires, and thereafter keep it so fenced,
  3. (c) so far is reasonably practicable, when filling up the excavation, make good and level the ground."

The noble Lord said: My Lords, Amendment No. 3 is the principal Amendment, and Amendments Nos. 4 to 8 are all consequential upon it. When the Bill was in Committee, the noble Viscount, Lord Massereene and Ferrard, tabled an Amendment to repeal Section LXXX of the General Turnpike Act 1831, which appears as Schedule C to the Roads and Bridges (Scotland) Act 1878. I accepted his Amendment, and indicated that I would at a later stage put down Amendments which would re-enact the main substance of the repealed provisions, but in more modern terms and divested of certain features which cannot be justified in modern conditions. Subsection (1) of the new clause contains the substantive powers enabling highway authorities to search for, dig and carry away materials from any land, and to carry them over any land. This power, which essentially re-enacts the basic power in the General Turnpike Act, is still necessary, because there are places, especially remote areas, where the cost of buying road-making materials commercially is uneconomic, as compared with the excavation of a small quarry near the road by the highway authority. We have all seen small workings of this kind, and most of them do little harm to the land on which they are situated. Subsections (2) and (3) deal with notice to owners and occupiers of land and objections. Before exercising their powers under the new clause, the highway authority must give notice to the owner and occupier of any land concerned, who has a right to object within 28 days. If a local highway authority is concerned, any unresolved objections must be referred to The Secretary of State for his decision. I think this represents a distinct advance: on the provisions of the General Turnpike Act. They distinguish between unenclosed land and enclosed land, and require notice to be given to the proprietors only where the land has been enclosed, in which case they receive 14 days' notice and can lodge an objection with the sheriff. Where the land is unenclosed, no notice and no right of objection is given. The new clause provides for notice and a right of objection in all cases, and provides for longer notice.

Subsection (4) of the new clause requires the highway authority to compensate the owner or occupier of land for any damage done by the exercise of their powers under it, and for the value of the materials that they remove. Again, this represents a rather more satisfactory arrangement than is provided under Section LXXX of the 1831 Act. That section originally provided that where materials were taken from unenclosed land compensation should be paid only for stone used for building. There was to be no compensation for surface damage, or for the removal of any other materials. Where the land was enclosed, compensation was to be paid for stone to be used for building and for surface damage. Section 123 of the Roads and Bridges (Scotland) Act 1878 added to this a provision saying that compensation was to be paid for any materials which were obtained outside the highway authority's area, or were carried more than three miles from the place where they were got. I am not sure what was the justification for those rather odd provisions, but we could hardly defend them in the light of modern notions about compensation. I am quite certain that if this Government attempted to introduce such legislation in this year noble Lords opposite would find many reasons for opposing it. The new clause provides for compensation to be paid for damage done and materials taken, irrespective of the type of land from which they were taken and the distance for which they were carried. Finally, subsection (5) of the new clause requires the highway authority to fence excavations while work is going on and, when it is completed, either to fence excavations or to fill them in and make good the ground surface. In the General Turnpike Act there are rather similar requirements in relation to un-enclosed land, but not, strangely enough, in relation to enclosed land. I beg to move.

6.46 p.m.

LORD DRUMALBYN

My Lords, on behalf of my noble friend, Viscount Massereene and Ferrard, I should like to thank the noble Lord for the Amendment that he has proposed. My noble friend regrets very much that he is un-able to be here to thank him in person. I understand from my noble friend that the Amendment the noble Lord has moved meets his point in a very satisfactory way. There is one question I should like to ask; it is a question to which no doubt I ought to know the answer, but perhaps the noble Lord can give me the information. When the word "compensation" is used, does it always follow that in the event of differences as to what the compensation should be there is recourse to arbitration? Under the existing law, for example, if stone is taken from outside the highway authority's area, or carried for more than three miles, who decides what the amount of compensation for the value of the stone, or for any damage done, is; and is that final?

LORD FERRIER

My Lords, at the Committee stage the noble Lord chid me for complaining that the stage had come so soon after the Second Reading that it had not given much time for Amendments to reach interested Peers. I feel it is only right that I should put it on record that although I had given notice to the Printed Paper Office that I wanted these Amendments sent to me, and they dealt with them accordingly, I have just telephoned my home and I learn that they actually arrived in my home to-day, as did the Bill as amended. However, I received copies in the Printed Paper Office this morning. I think it is fair to indicate that although the Easter holidays must have had something to do with it, the postal service is not quite as quick as it used to be, although my local post office is extremely efficient. The fact is that I did not get this Amendment. The noble Lord was good enough to send me Amendment No. 1, to which he has already referred. I did not get either the Bill or the Amendments until to-day.

I agree with the noble Lord, Lord Drumalbyn, that this Amendment goes a very long way to meet the point made by the noble Viscount, Lord Massereene and Ferrard, at the Committee stage, when moving his Amendment to which incidentally I also put my name. I say, " goes a very long way ", but there is one point which I feel inclined to mention, and that is that the matter of amenity has not been referred to, nor, arising out of that, the matter of planning. However, this Amendment rep-resents a great advance on previous conditions. My friends the Land Owners' Federation in Edinburgh suggested to me that the question whether conditions in this proposed clause run in accordance with the Tribunals and Inquiries Act 1963 might be worth looking into. How-ever, I have reason to believe that they do not clash in any way.

LORD BURTON

My Lords, I also should like to take this opportunity of thanking the noble Lord, Lord Hughes, not only for this Amendment but for the way he has met us on so many points in this Bill. I should like to back up my noble friend Lord Ferrier on the question of amenity. I feel that not only on this point but throughout the Bill there is a tendency in regard to any road works to ignore the planning and amenity side. I hope the noble Lord, Lord Hughes, will have a look at this point.

VISCOUNT STONEHAVEN

My Lords, on this matter I am not yet quite clear that this Amendment covers road-making materials. The old Acts covered stone used in the actual pitching of the road or the surface of the road. " Road making materials " can be construed, I think, to cover fill and embankments. If that is so, does this clause cover borrow pits? Another point that arises is this. When you are building a road you frequently have to dump surplus or unsuitable materials. Your first efforts are to balance your cut and fill. One does that to the best of one's ability, but sometimes it is quite impossible to accomplish and one has to make quite large excavations in order to get other material. This is generally called a " borrow pit". In other cases one has to dump material unsuitable for road-making, and on occasions both these things can be very unsightly. It may be that such cases are not covered 'by this provision; I do not know.

Subsection (5)(c) says: so far as is reasonably practicable, when filling up the excavation, make good and level the ground. The point I should like to make is that in these circumstances topsoil is not required to be spread. That is a point which ought to be considered. I am not suggesting that it is a big point, because I think that this legislation is better than the former legislation; but if we are doing something about these matters now, these points should be covered, or at least considered.

6.52 p.m.

LORD HUGHES

My Lords, may I deal with the points in the order in which they have been raised? The noble Lord, Lord Drumalbyn, asked about compensation and how, if there were any dispute, this would be resolved. Clause 39 of the Bill applies to disputes about compensation, and they do go to arbitration. I am not certain whether the noble Lord, Lord Ferrier, was anxious; to pursue a point on the Bill or had to " have a go " at the Printed Paper Office. But I do not think it was really either of these: I think that, having discovered that the word could be used either as "chid" or "chided ", he was very anxious to get the word "chid" into the Record. I discussed this point with my advisers, and they are of the opinion that he is perfectly correct, although they thought his meaning might have been quite clear to everybody concerned, without explanation, if he had used the word "rebuked".

The operations under the new clause would be subject to the normal operations of the Town and Country Planning (Scotland) Acts. Broadly speaking, that means that planning permission would have to be obtained by the highway authority, except in certain specified cases. These are where development is carried out by a highway authority who are themselves the planning authority and the cost does not exceed £5,000. This is permitted development. In general, there-fore, I think the noble Lord's point about the protection of amenity (and in this he was supported by the noble Lord, Lord Burton) is covered by the Planning Acts.

The final points were those raised by the noble Viscount, Lord Stonehaven. The old provision concerned fill as well as stone. The new clause does not cover dumping of waste material. The spread of topsoil is covered by subsection (5). I hope that in my reply I have covered all the points that have been made.

LORD FERRIER

My Lords, before the noble Lord sits down I should like to emphasise that I did not criticise the Printed Paper Office; I drew attention to the postal service. I am informed that this Amendment was tabled on April 1; and that was in fact the case. This was printed on the 2nd, and posted on the 2nd or the 3rd; but it did not reach my address until the 7th. That was the point I wanted to make.

LORD HUGHES

My Lords, I still think that the main object was to get that unusual word into the debate.

On Question, Amendment agreed to.

Clause 38 [Powers of entry]:

LORD HUGHES

My Lords, I beg to move Amendment No. 4.

Amendment moved— Page 22, line 40, leave out ("and 10") and insert (" 10 and—(Power to obtain road-making materials) ")—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 39 [Determination of disputes as to compensation]:

LORD HUGHES

My Lords, I beg to move Amendment No. 5.

Amendment moved— Page 23, line 44, after (" 15") insert ("—(Power to obtain road-making materials)"). —(Lord Hughes.)

On Question, Amendment agreed to.

Schedule 1 [Minor and Consequential Amendments]:

LORD HUGHES

My Lords, I beg to move Amendment No. 6.

Amendment moved—

Page 29, line 17, at end insert—

("The Roads and Bridges (Scotland) Amendment Act 1892 (c. 12)

2. In section 5 (preservation of lands from injury), for the words from the beginning to ' extended to' there shall be substituted the words ' Nothing in section (power to obtain road-making materials) of the Roads (Scotland) Act 1970 shall empower the highway authority to search for, dig and carry away materials from.'

The Local Government (Scotland) Act 1908 (c. 62)

3. In section 26 (Use of machinery in quarries)—

  1. (a) for the words from ' a county council' where they first occur to ' 1878' there shall be substituted the words ' the highway authority under section (power to obtain road-making materials) of the Roads (Scotland) Act 1970';
  2. (b) for the words ' a county council' where they subsequently occur there shall be substituted the words ' the highway authority';
  3. (c) the words from ' to show cause' to the end shall cease to have effect.

4. In section 27 (fencing of quarries), for the words from ' the Roads' to ' therewith' there shall be substituted the words ' section (power to obtain road-making materials) of the Roads (Scotland) Act 1970'.")—(Lord Hughes.)

LORD FERRIER

My Lords, I am encouraged by what the noble Lord, Lord Burton, said to refer again to the question of amenity under this Amendment. The section concerned in the Act of 1892 is going to conclude with the words: desirable to preserve intact on the ground of national or public interest or historical association. I wonder whether the word " amenity " was being used in 1892 with the particular meaning that we attach to it to-day. I would ask the noble Lord whether he will look into this point, and to consider whether it would not be wise to add some reference to the word " amenity " at the end of Section 5 of the Act of 1892.

LORD HUGHES

My Lords, I have accepted the advice of my officials that it is not necessary to do so, in view of the references I have already made to the Town and Country Planning Acts, which cover the point. But I will have a look at the point to find out whether there is any need to do so. I must say that I do not like Third Reading Amendments, but if it should be absolutely necessary then I will undertake to bring one forward.

LORD FERRIER

My Lords, I am obliged to the noble Lord.

On Question, Amendment agreed to.

Schedule 2 [Enactments Repealed]:

LORD HUGHES

My Lords, I beg to move Amendment No. 7.

Amendment moved—

Page 30, line 25, column 3, at end insert— ("In section 123, the word 'eighty' and the proviso.").—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES

My Lords, I beg to move Amendment No. 8.

Amendment moved—

Page 31, line 14, at end insert—

(" 8 Edw. 7. c.62. The Local Government (Scotland) Act 1908. In section 26, the words from "to show cause" to the end.)"
—(Lord Hughes.)

On Question, Amendment agreed to.