HL Deb 19 March 1970 vol 308 cc1253-98

4.0 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Procedure in schemes and orders for special roads and trunk roads]:

On Question, Whether Clause 1 shall stand part of the Bill?


If I may raise a point on Clause 1(3), I wonder whether the Minister could explain the rather contentious matter in relation to the 50 metres deviation. The Bill does not appear to contain any right of appeal against this deviation, and deviating 50 metres could even remove a house. If there are no grounds for appeal, I think that we should put down an Amendment at the next stage of the Bill.


I am afraid that without taking a little too long I could not answer the noble Lord's question at the moment, but I will take the opportunity later on, with the permission of the Committee, to interpolate an answer to that.

Clause 1 agreed to.

Clause 2 and 3 agreed to.

Clause 4 [Power of local authority to contribute to street works]:

LORD BURTON moved Amendment No. 1:

Page 4, line 6, at end insert— ("() The local authority may. if they think fit. at any time contribute the whole or a portion of the expenses incurred by a person in connection with the improvement, after the passing of this Act, of any such road as may be regarded as a Public Way.")

The noble Lord said: I mentioned this point on the Second Reading of the Bill. Since then our county council has discussed this question and it is most anxious that something should be done along these lines. I am not at all certain whether my wording is correct, but as the clause is framed it would appear that streets can be improved but so far as rural roads are concerned it seems that the wretched district council, probably with very little funds, would have to bring up a road to what I believe are called "county standards" before it could be taken over. I appreciate that probably this will be changed once the Wheatley report is implemented, or something on those lines, but I hope that the Minister will be able to give us a satisfactory answer. I beg to move.


This Amendment would enable county councils to contribute towards the improvement of "public ways" by district councils. I would suggest that there is a material difference between the works which are referred to in Clause 4(1) of the Bill and works done under Section 29 of the Local Government (Scotland) Act 1894 by district councils. The private street works to which a local authority may contribute under Clause 4 are works on private streets and private footways which local authorities may compel frontagers to carry out. This enables local authorities to impose a heavy financial burden on private persons, who may be unable to afford it, and this has always been the main reason for allowing local authorities to contribute. Secondly, before taking over a private street—and adding it to the list of streets which are publicly maintained—a town council may require frontagers, under Section 134 of the Burgh Police (Scotland) Act 1892, to make it up: the council cannot simply decide to take over the street as it stands. Thirdly, the local authority, under the powers listed in Clause 4, can ensure that private streets and footways continue to be maintained to a proper standard.

In relation to public ways, however, the position is quite different. The district council cannot be obliged by the county council to bring such a road up to any particular standard, or even to do any work on it. Moreover, the county council already have ample powers to take over such a road as it stands and add it to the list of highways. The remedy for the problem to which the noble Lord, Lord Burton, refers is therefore to press the county council to take over a road, which may have become busier, and not to encourage them to try to put the burden of repair on a district council. If the road is important enough to warrant a high standard of maintenance, it should be taken over by the county council: if it is not important enough to warrant a high standard of maintenance there is no reason why they should be involved. For these reasons, I hope that the noble Lord will take advantage of the remedies to which I have drawn his attention, if he is interested in any particular case. I would invite him to withdraw the Amendment.


I thank the Minister for his reply, which makes it amply clear. It was a very different reply from that which I received from the county clerk. I rather think there must be some misunderstanding here, but in view of what the noble Lord has said (and no doubt on good advice), I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Power to divert waters when constructing or improving highway]:

4.6 p.m.


moved a manuscript Amendment:

Page 4, line 31, at end insert excepting such waters as are designated as waters for salmon or trout fishing by the Secretary of State for Scotland.

The noble Lord said: I apologise for imposing a manuscript Amendment upon your Lordships in Committee. I will explain in a moment why I had to follow this procedure. The Amendment refers to the very wide powers contained in Clause 7, which we debated upon the Second Reading of the Bill, and which in fact give local authorities a blank cheque to divert waters or to carry out any works they consider necessary on inland waters, if such works are necessary for the construction or improvement or protection of a highway.

On the Second Reading of the Bill I was so bold as to point out that the Bill as drafted gives powers to the local authorities which, if used in the extreme, could divert the main rivers of Scotland —the Tay, the Tweed, the Dee, the Spey —which are valuable to Scotland's economy beyond any figure that I would hazard to submit to your Lordships, both in terms of money and employment. The noble Lord, Lord Hughes, replied to my point by saying, in effect, that it was the old excuse which we all know so well—"it is only a little one". The noble Lord said: This is a new power which is being given to local authorities. He then said that he thought I was looking on this as something much vaster than the purpose for which it was intended. He went on: The local authorities have asked for this power, because, for instance, they may find that in having to build a bridge over a fairly narrow stream, the existing course of the water may mean that the bridge will have to be built at an angle—a skew bridge, which becomes a nuisance…"—[OFFICIAL REPORT, 5/3/70, col. 509.]

I entirely accept what the noble Lord, Lord Hughes, said as regards the intention of using the powers, but I have a grave constitutional distaste, which I think is shared by Members on all sides of the Committee, of giving the Executive, whether it be the central Government or local government, wide powers—far wider than are required—and then having to rest on an assurance that such powers will not be used.

After the Second Reading of the Bill, I had the benefit of some conversation with the noble Lord, Lord Hughes. I suggested that I should put down an Amendment, but he said that he would look at the matter and would write and let me know if he could do anything. He suggested that I could then table an agreed Amendment. A very admirable procedure. It is fourteen days since the Second Reading. I have looked at each post as it has arrived at my house, or at your Lordships' House, with anxiety and with hope. Day by day I have waited for the noble Lord to come forward with a constructive suggestion such as he gave me to understand might come about. But I have had nothing. That is the reason I am forced now to put forward this manuscript Amendment, which I think meets Lord Hughes' point that the powers are expected to be used, and only required, for small works. My Amendment would exclude waters designated as waters for salmon or trout fishing by the Secretary of State for Scotland. It would in fact protect these valuable economic units about which I have spoken and would protect trout fishing, a simple pleasure enjoyed by very many who support all Parties in this House. I hope that my Amendment will meet with the approval of the noble Lord, Lord Hughes, and if the wording is imperfect I shall be very glad to withdraw it if he will undertake to put forward better words at Report stage. I beg to move.


I am sorry if I raised the noble Lord's hopes too high but, if I remember rightly, the quotation he attributes to me was that if I could find an Amendment which he might put down, or I might put down, I would let him know. As I did not find one, and I did not find the need for one, there was nothing that I could let him know. I expected that he would raise the matter on the Question, That the clause stand part, in order to have an opportunity of ventilating it further. However, he has chosen this way of doing it, and I find it an equally acceptable way of explaining why the Government do not want any amendment of the clause.

In the first place, the Amendment suggested would be quite unworkable. The Department of Agriculture and Fisheries for Scotland has no existing powers, so far as we have been able to find out, to designate waters as being waters for salmon and trout fishing. I take it that what the noble Lord has in mind is that waters which are salmon or trout fisheries should be exempt from the provisions of Clause 7. It depends what one means by waters which are trout or salmon fisheries. The rivers which the noble Lord has named quite obviously fall into that category, but there are many other rivers in Scotland in which there is trout fishing; in fact it is very difficult to think of any rivers in Scotland which could not be regarded as trout fishery rivers. So that if we accepted the Amendment as it stands, or anything which attempted to convey the sense of the Amendment, we should completely frustrate the operation, because there would hardly be a river in Scotland where the power would be capable of being exercised by the local authority.

The noble Lord said that what I had done was to advance the usual excuse that this is only a little thing and not in fact intended to be used for any major purpose. Obviously, it is at least theoretically possible that we could use Clause 7 to divert the course of the River Forth, the Clyde, the Tweed or Dee. But remember what the purpose of the clause is: it is to enable authorities to make a road safer in an economical way, and very often the most economical way would be to have a minor diversion of a stream to enable a bridge to be carried out in a straighter, and probably therefore simpler and cheaper, manner. If a major diversion of a river or a diversion of a major river were being contemplated, the cost would be so fantastic that it could not possibly come into the category for which the clause is being laid down.

The noble Lord objected on Second Reading to the Secretary of State's being the judge in his own cause, and referred to the special procedure under which a water scheme, the Cabrach river scheme, was in fact rejected after the Secretary of State had indicated his intention to approve it. If there were to be a scheme, a diversion of the type which the noble Lord has in mind, I suggest that it is really stretching imagination far beyond any reasonable limit to expect that such a diversion would be on a minor road; it would obviously be worth while to do something of a major nature only on a motorway or trunk road. The noble Lord will be relieved to know that the procedure to which he refers as being protection against the Secretary of State's being the sole judge in his own cause is in fact the procedure which would operate on a trunk road or motorway, because the Act lays down at the present time that in such schemes the Special Procedure can be resorted to. So that if, contrary to the expectations of everybody concerned with the seeking and framing of these powers, a major operation of this kind should ever be required, the Special Parliamentary Procedure, which the noble Lord has invoked as providing the right safeguard, would come into operation. I hope, that with the assurance that his major point is bound to be covered in exactly the way in which he put it forward, as the best possible safeguard, he will find it possible to withdraw his Amendment.

4.17 p.m.


I do not think the noble Lord quite appreciates the points he himself made on the Second Reading. In the first place, this is an entirely new power and, that being so, the Government have to justify it up to the hilt. Secondly, the noble Lord said that this power is more than will be required. I think this is quite true. He said on Second Reading that these powers extend beyond what are ever likely to be used. Further, there is laid down here a very foreshortened procedure for examination. The noble Lord talks about stretching imagination. But we are not dealing with imagination: we are dealing with what will be an Act of Parliament. We are perfectly happy to give the Government powers for the sort of small schemes the noble Lord has in mind, but this power is very much wider: as the wording stands it covers a very much wider sphere. It seems to me that the noble Lord ought to try to bring it in line with the sort of situation he has just mentioned.

The only restricting words here—and I do not know what they mean—are that the "highway authority may divert", and so on. I do not know whether in certain cases the Ministry of Transport is the highway authority, or whether this wording inevitably confines the diversion to secondclass or thirdclass roads. Otherwise, it would cover any road anywhere. The noble Lord said that this procedure would come into operation, but I am not clear how he makes that out. Here we have a separate power being given, and I am not entirely clear why the fuller procedure should not come into operation, or how he can say that it will come into operation here. I have in mind that a big scheme may go forward, and something may be pushed on with a very foreshortened procedure. I do not think we should give any Government power to do that.


I am sorry if I have not persuaded the noble Earl. In the first instance, the highway authority may be the local authority or it may be the Secretary of State. The Secretary of State is the highway authority for special roads, motorways and trunk roads, and the appropriate local authority is the highway authority for principal and nonprincipal roads. The simplest way in which they can be distinguished is to look at the type of road on which the proposed work will be carried out. I have pointed out that for motorways and trunk roads the Special Parliamentary Procedure applies. The Special Parliamentary Procedure is complicated; indeed, during the discussion of this Bill in another place a principal Opposition spokesman on this matter criticised the Special Parliamentary Procedure as being unduly cumbersome, and did not want to see it invoked. Nevertheless, the Special Parliamentary Procedure applies.

There is no way in which we can lay down in an Act of Parliament that certain types of operation would be regarded as minor operations which would go under the procedure in Clause 7, and that other types of operation should be regarded as operations to which the Special Parliamentary Procedure would apply; because inevitably a point is reached where there is doubt as to whether an operation goes under one side or the other. The obvious remedy, therefore, is either to confine the Special Parliamentary Procedure to that narrow scale of important roads to which it presently applies or to apply it over the whole field. Obviously, to apply the Special Parliamentary Procedure to the whole field, sometimes in an operation which would be so minor in its nature that it would be an absolute farce, rules out the extension of the Special Parliamentary Procedure to the whole operation. It would be a complete waste of time. But in fact the opportunity exists in regard to any river where a diversion formed part of a trunk road scheme or a motorway scheme.

This can take place in addition to the public inquiry. The Secretary of State will undoubtedly cause a public inquiry to be held even in regard to a small scheme to which there is opposition. It may be argued that a public inquiry is not a suitable method of dealing with these minor schemes to which there may be objection, because the Secretary of State in the end is going to be the judge. I would remind your Lordships that in most of these cases he is not in fact being the judge in his own cause, because he will be adjudicating finally on roads which are principal or nonprincipal roads for which he is not the highway authority. So he is a proper appellant authority there. Lord Balfour of Inchrye's objection was to his being the final judge in a case where he would be the principal interested party—where the Secretary of State is the highway authority. I have pointed out, possibly ad nauseam, the fact that Parliament has provided a remedy against the Secretary of State's doing this. I cannot possibly go beyond this. To attempt to do anything else would mean that the clause was a complete waste of time and that authorities would have to carry on doing the job in the wrong way because Parliament had declined to give them the opportunity of doing it in the right way.


May I make one suggestion to the noble Lord? I think that what he was seeking to do was to draw a distinction. Would it not do to say something of this sort: that the highway authority may divert in cases where the Special Procedure does not apply? So far as that is concerned, I should be perfectly happy. I have no objection to the Secretary of State's deciding in minor cases; it is only of the major cases that I am speaking. I do not think we are far apart. It is only a question of wording and making it quite clear that in major cases this procedure could not be applied. There may be Secretaries of State less well disposed to the world than is the present one, and one has to provide in Parliament for that stale of affairs.


I must admit the possibility that there may be Secretaries of State less well disposed than the present one. That is obvious. Therefore it is difficult for me to resist completely a plea based on that ground. I doubt whether the answer which the noble Earl has suggested is the right one, but I should not like to reject it at this stage, because, obviously, I have made my case on the fact that this is a distinction. If what is suggested can be done without its appearing to the draftsman and to similar people to be a legal nonsense, then I should be happy to look at it; and on this occasion, as I am being invited to look at an Amendment along a particular line, I will undertake specifically to write to the noble Lord, Lord Balfour of Inchrye, and to the noble Earl, Lord Selkirk, before the Report stage, telling them whether I will put down an Amendment or whether I would oppose such an Amendment if it were put down by them. I hope that with that assurance the noble Lord, Lord Balfour of Inchrye, will withdraw his Amendment.


Before the noble Lord withdraws his Amendment, if that is his intention, may I say that the problem which he raised at the end of his speech really arises because the Committee stage is following so soon after the Second Reading. I had expected to see an Amendment to this clause, and I am only too glad that the noble Lord in charge of the Bill says that he will think again over the matter. After all, this is the first time we have had this subject debated in Committee terms. From something that the noble Lord, Lord Hughes, said, I think that it might be well to include in the first line of Clause 7(1) the words "temporarily or otherwise". In bridge building often the diversion of a stream need be only temporary if the alignment of the bridgework is going to be altered. Perhaps that might be given consideration when this matter is thought of again.


I should like to thank the noble Lord, Lord Hughes, for his kindness in replying, although I cannot thank him for the substance of his reply to me. I am glad that my noble friend Lord Selkirk advanced a possibility which the noble Lord, Lord Hughes, has been good enough to say he will consider. Had the noble Earl not made his suggestions, and had the noble Lord not responded to it, I think I would have persisted in my Amendment, even to the point of dividing the Committee, on the broad principle that I dislike the Executive's having wide powers which, we are told, they never use. I do not think that we should have to rest on such an assurance. On that ground, I would have divided the Committee. But the noble Lord has been good enough to say that he will look again at this matter. Let us hope that at a later stage we shall find some accommodation. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8 agreed to.

Clause 9 [Further powers of highway authorities to construct highways over or under navigable waters]:

LORD HUGHES moved Amendment No. 2:

Page 6, line 17, at end insert— (" (3) Any work authorised to be done by a scheme made by a highway authority under this section shall, for the purposes of section 7 of the Telegraph Act 1878 (provisions as to work which involves alteration in telegraphic line), be deemed to be work proposed to be done in the execution of an undertaking authorised by an Act of Parliament and the highway authority carrying out the work shall be deemed to be the undertakers.")

The noble Lord said: This Amendment gives the Post Office protection under Section 7 of the Telegraph Act 1878 where a scheme is made by a highway authority for the provision of a bridge over, or a tunnel under, navigable waters. Section 7 of the 1878 Act provides that where works carried out by undertakers would involve altering a telegraphic line, the Post Office must be notified and given an opportunity either to carry out the alterations themselves or to supervise them, in either case at the expense of the undertakers carrying out the works. Section 7 also prescribes penalties for failure to notify the Post Office.

Under Section 20 of the Special Roads Act 1949 the Post Office have similar protection in relation to schemes for bridges and tunnels forming part of special roads. Clause 9 of the Bill is modelled on Section 3 of the Highways (Miscellaneous Provisions) Act 1961, which gives similar powers to highway authorities in England and Wales, and the Postmaster General is safeguarded, in relation to such works, by Section 300 of the Highways Act 1959. The provision proposed by the Amendment is, therefore, precedented in England. The Post Office asked for this Amendment after the Bill had passed through another place. I beg to move.

On Question, Amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Drainage of highways]:

On Question, Whether Clause 10 shall stand part of the Bill?


When this subject was debated on Second Reading, I made some reference to the problem of increased volumes of water being discharged into agricultural land from an enlarged road. In discussing this matter with certain parties interested in the subject, a new point has arisen which I thought it might be your Lordships' pleasure for me to mention at this moment. It is that in areas of the country which have a hard winter a large volume of salt is used in deicing the roads. As a result, the effluent from roads at certain times of the year contains very high concentrations of salt. This point might have some bearing on the considerations dealt with in this clause in regard to drainage from roads into agricultural land.


I must admit that the noble Lord, Lord Ferrier, with his faculty for diving into strange waters, has produced a point which had not previously occurred to me. It is one which I should like to consider. I am fairly certain I shall not be able to find a solution to it, but I may at a later opportunity give the noble Lord, if no more, what he would regard as possibly an unsatisfactory answer.


I am obliged.

Clause 10 agreed to.

Clause 11 agreed to.

4.33 p.m.

LORD BURTON moved Amendment No. 3: After Clause 11, insert the following new clause:

Liability for maintenance etc. of roadside retaining walls

" .—(1) Where the subsoil of any highway or any land adjacent to or contiguous with a highway is supported by a retaining wall the highway authority shall be responsible for the repair, maintenance and renewal of any such retaining wall.

(2) In this section "retaining wall" means, a wall which serves or is intended to serve as a support for earth or other material on one side only."

The noble Lord said: I hope that Amendment No. 3 is quite clear. When a road has been made and has required in its construction a retaining wall, it would seem obvious that that wall should be the responsibility of the highway authority. Until now there appears to have been some dubiety as to who in fact is responsible, whether it is the adjacent proprietor or the road authority. Some authorities have been maintaining these walls, and others have refused to do so. However, I hope that this Amendment makes it quite clear and puts the responsibility fairly and squarely where I feel it should lie. I beg to move.


I should like to support the new clause moved by my noble friend Lord Burton and to put forward as an additional reason the provision of Schedule 2 on page 29 where, among the enactments repealed, is Section 94 of the Act of 1878. This section deals with the responsibilities of the road authority in supporting highway construction, and it seems to me that it might be well worth having another look at the section to be repealed in the light of my noble friend Lord Burton's proposed new clause, which I should like to see in the Bill.


May I deal first with the point which has just been raised by the noble Lord, Lord Ferrier. The section to which he has referred in the 1878 Act which is being repealed is in fact reenacted in a more modern form in Clause 5 of the Bill. The section to which he refers relates to the necessary works being done on the tops of bridges or embankments, and so on, where there is an element of danger. If he will look at Clause 5, he will see that in fewer words and in more modern language we have continued that power.

Coming to the Amendment of the noble Lord, Lord Burton, I am afraid that he has rather oversimplified the matter when he suggests that he places the responsibility where it properly lies, on the highway authorities. This is a matter which has been before the courts on a number of occasions, and one thing which has emerged is that there is in fact no such clear pattern that responsibility will always lie in one particular direction. It is because this Amendment is far too sweeping that I must ask your Lordships not to accept it.

Let us look at what the Amendment would do. It would make the highway authorities entirely responsible for the repair, maintenance and renewal of all retaining walls which support highways or land near highways, without necessarily relating this to benefit to the highway. The question of legal responsibility for such retaining walls is a difficult one to which, as I have said, there is no single answer such as the Amendment proposes. If there is a general rule which is fairly generally recognised, it is that the owner of the land which is supported is normally liable for the upkeep of the retaining walls, and highway authorities are often prepared to maintain walls which support the road. But to this rule there are a number of exceptions. There may be an agreement or a condition in a document such as a feu charter—the noble Lord will delight in reference to a feu charter—which allocates responsibility in some other way. Even where responsibility is not allocated in any such document, the circumstances may be such as to suggest that it would be inequitable for responsibility to rest entirely on the person whose land is supported. A wall may, for instance, serve other purposes, such as screening, as well as retaining land, and the land it screens may not be the land it supports. In such a case it could be arguable that responsibility for a single wall should be divided.

In cases which have come before the courts, they have tended to deal with each case having regard to the particular circumstances of the case and have been reluctant to lay down anything but general guidelines. The Amendment does not take account of these complexities and is, because of the simplicity of its solution, an inequitable solution because it would make the highway authorities responsible for many retaining walls which, in no circumstance of common sense or fair play, could be regarded as their responsibility. A wall which in part supported the adjacent land need not be preventing it from falling on the highway. Even if it served that purpose, it might be that it does so only in part, and that to a larger degree it served the function of a boundary wall.

We have also to consider that a wall supporting contiguous land might be erected at the request of the owner of the land in preference to a cutting, because the cutting would take away a great deal more of his land. In these circumstances, it would be quite unreasonable to expect the highway authorities to undertake responsibility for the maintenance of such a wall. In addition to this, there are many existing agreements between highway authorities and adjoining proprietors about the upkeep of retaining walls near the highway. The proposed Amendment would overrule all these, and it seems wrong that this should happen since agreements take full account of local circumstances.

I did not entirely ignore what the noble Lord said at Second Reading, and as I have found from past experience that a concession to the noble Lord is not bread thrown idly upon the waters, I have tried to do what I can to help him. I have put down an Amendment to Clause 19 which goes part of the way that he asks, and by which we would allow highway authorities to contribute towards costs incurred by others in the repair of retaining walls. In doing so we recognise that circumstances might arise in which, whatever the legal position, such a contribution would be equitable. I think this is as far as we can reasonably go in legislation, and I hope that the noble Lord, Lord Burton, will therefore feel that he has got something out of his Amendment, even although it lands at another part of the Bill, and that he can at least go back home proclaiming that he has got half a loaf although he has not got all the bread.


Before the noble Lord, Lord Burton, withdraws his Amendment, if he has it in mind to do so, another point which occurs to me, which arose out of the discussion on Second Reading, is the problem of injury to retaining walls, fences and the like caused by road accidents. I also made the point, as did other noble Lords, that the enormous increase in heavy traffic on some of the roads in hilly areas causes vibrations which demand in retaining walls a strength which is not really necessary merely for the retaining of an embankment. Perhaps it is proper to point out now a problem which is becoming very serious in the area from which I come, of walls and fences being damaged by vehicles which drive off without trace, when the expense of repair, certainly in the case of fences, falls to the riparian owner.


On the noble Lord's second point, I am sorry that I could not undertake to accept that it is the responsibility of the highway authority to take over a liability which, in more honest circumstances, is accepted by the driver who causes the damage and which in due course is presumably paid for by his insurance company. It all depends on how bad the accident is. If the driver is there long enough to be found out, then the damage would be paid for in that way. If he is able to get away without being detected, presumably he does so.

So far as the former point is concerned, I think that the Amendment that I shall be moving will enable that sort of case to be taken into account. That could be a change of circumstances which, although there is no legal obligation, is just the sort of case where it could be equitable for the local authority to make a contribution towards the cost of repairing a wall. There may well be circumstances in which it is quite obvious that it is the tremendously increased traffic on the road—vibration or something of that kind—which is causing damage to the wall which requires repair. Those are the kind of circumstances where I think it would be very desirable that a power such as I propose in due course to confer should be there, so that the responsibility should not fall entirely on the owner of the wall. I hope, therefore, that when we come to that Amendment the noble Lord will feel that what I shall be doing will meet that point.


I must agree that the Amendment goes a little far at the present time. When I read it, I had it in mind that it referred particularly to the creation of new roads. As I understand it, when a new road is created there is clearly a different situation. At that time, either by an inquiry or by private agreement, the highway authority may well become liable for the maintenance of certain parts of a retaining wall. But beyond that, as I understand it, the noble Lord, Lord Hughes, prefers to stand on the Common Law of Scotland, as interpreted by the courts. He does not want to go very much further than that, except for the Amendment which he has put down, though I presume that the powers under Amendment No. 8 must already to some degree rest with the local authority. Perhaps we shall come to that in due course and I will not press the point. But, as I understand it, at the present time there is no difficulty about compensation so far as new roads are concerned.


I do not think there is any difficulty, and when one looks at the sort of roadworks that are going on one can see the different way in which agreements have been reached. For instance, work is going on at the present time on the Stirling bypass and there is an enormous length of new stone wall being constructed, similar to the one which exists at the present boundary of the estate. Obviously, that is part of the arrangement which has been made in connection with that scheme, and I must agree with the noble Earl that with new roads the problem does not arise.

I think he has also correctly stated my view in relation to existing roads, that we must rest on the position as it stands, improved, as I suggest, by the Amendment to be moved later on. But if it is accepted, and I think I am accepting, that it is inequitable to say that in every circumstance the responsibility should be placed on the owner of the land or the owner of the wall, then it must be equally inequitable to place the responsibility in every case on the highway authority. The truth will vary between those two extremes, and in many cases the answer may well be a joint responsibility, which is what I wish to facilitate in every possible way.


I should like to thank the Minister for his reply, because I think he has strengthened my case much better than I should have been able to do. I think he has pointed out how very diverse the position is. But the fact remains that if you have a hillside and cut a road through it which requires a retaining wall, the road provides the necessity for that retaining wall and therefore the responsibility should surely fall on the roads authority. I quite agree with the noble Lord about the compensation for new roads, but that is a very different matter. I am not talking about compensation. What I am talking about is the responsibility for maintaining these walls.

The noble Lord mentioned a feu charter, but we have been told in the Government's White Paper that this is going to be done away with. This is one of the things I object to. Here we may have a feu charter which is quite firm, which is to be swept away by the Government. That is all the more reason why we should legislate now on a term which may come up later. It is no use merely allowing a highway authority to contribute. I think there is a little doubt about this, and the authority should be told that it must contribute. The noble Lord, Lord Ferrier, pointed this out, and made some very good points. I really cannot see that this Amendment is too sweeping.

On Question, Amendment negatived.

Clauses 12 to 16 agreed to.

Clause 17 [Damage to roads]:

4.48 p.m.

LORD HUGHES moved Amendment No. 4: Page 11, line 23, leave out subsection (2).

The noble Lord said: Amendment No. 4, with which is associated Amendment No. 18, are drafting Amendments, the effect of which is to take the definition of "traffic sign" out of Clause 17 and put it in Clause 49, the interpretation clause. The reason for this is that the words "traffic sign" were inserted in Clause 17(b) and (d) as an Amendment at an earlier stage of the Bill, and a consequential definition was inserted as subsection (2) of Clause 17. However, there is also a reference to a traffic sign in Clause 19(1)(b), and it is therefore more appropriate to define "traffic sign" in the interpretation clause, Clause 49. This Amendment paves the way for the substantive Amendment in Clause 49. I beg to move.

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Removal of accidental obstructions from roads]:

LORD HUGHES moved Amendment No. 5: Page 11, line 37, leave out ("in the removal of the object")

The noble Lord said: Amendments Nos. 5, 6, and 7 go together. These Amendments will enable highway authorities to recover expenses which they have incurred in lighting and guarding an accidental obstruction pending its removal. They can recover expenses either from the owner of the object causing the obstruction, or from the proceeds of disposal of the object.

Clause 18(1) empowers a highway authority themselves to remove an obstruction from a road, and Clause 18(3) enables them to recover the cost of doing so from the owner of the object causing the obstruction. Subsection (2) enables the highway authority to fence and light an obstruction pending its removal, but in this case there is no power to recover the cost of fencing and lighting. There is no reason for different treatment of the cases. The first Amendment extends the power of recovery to all expenses incurred by the highway authority under the subsection, and not only to removal expenses. The second Amendment is consequential. Clause 18 enables a highway authority to sell an unclaimed object and use the proceeds for expenses. The third Amendment ensures that these expenses may include lighting and fencing. I beg to move Amendment No. 5.


I have no objection to this Amendment at all, but I should like to ask a question. How long must the ownership of an object remain in doubt before the local authority can sell it? It may be that it will be sold and that the owner will turn up after a fortnight to claim it back.


I am afraid I could not answer that question offhand, but I am quite certain that there are reasonable provisions on it. In some cases it may well be determined by the nature of the object. In the unlikely event of anyone dropping, for instance, a dead elephant on the road, presumably it would be very difficult to dispose of it, but it could not be kept in custody for any great length of time pending the appearance of the owner. Other things, obviously, could be kept for an unlimited period without any harm. I am quite certain that the authorities responsible will not place themselves in the position of acting too hastily if it is an object which anyone is likely to claim. I should think that in most cases the resale value of the object may be very little. If people have abandoned an obstruction, it is probably because it is not worth very much to them, and probably it will not be worth very much to anyone else, either.


I am a little worried about this Amendment. If the roads authority cut up a tree into unsaleable lengths, it becomes valueless. It is rather important, when a tree falls, that it is cut into the right lengths. I wonder whether this point might be looked at?


I should have thought that if a tree of potential value had fallen and had become an obstruction, it would be quite an easy matter to acquaint the owner of the tree of that fact; and if it was going to be worth more to him cut up than the expense of removing it, the local authority would not be involved in removing the obstruction—he would do it himself. But he is much more likely to abandon it to the local authority if he thinks that the expense is going to be more than the bother is worth.


In other contexts the noble Lord has been very quick to explain to me that it is sometimes very difficult to find the owner. In fact, I think there was another place in this Bill which I mentioned on Second Reading as to which he said that it should be the tenant who should be notified and not the owner because you might not be able to find the owner.


I should have thought that in the case of any land on which a tree grew it was likely not to be difficult to find either the owner of the land or the owner of the tree.

On Question, Amendment agreed to.


I beg to move Amendment No. 6.

Amendment moved— Page 11, line 38, leave ("it's") and insert ("the").—(Lords Hughes.)

On Question, Amendment agreed to.


I beg to move Amendment No. 7.

Amendment moved— Page 12, line 3, leave out ("in the said removal") and insert ("under this section"). —(Lord Hughes.)

On Question, Amendment agreed to.

Clause 18, as amended, agreed to.

Clause 19 [Dangerous vegetation and fences near roads]:

LORD HUGHES moved Amendment No. 8:

Page 13, line 3, at end insert— ("() The highway authority may make such contribution as they think fit towards any expenses reasonably incurred by a person in carrying out necessary work in pursuance of subsection (1) or (2) of this section.")

The noble Lord said: This is the Amendment to which I have already referred. The Scottish Landowners' Federation and the National Farmers' Union made representations that the cost of pruning, lopping or removing trees, or maintaining walls, and so on, in the interests of roadusers could be a burden on many owners or occupiers, and that the highway authority should accept some of the financial responsibility. The Scottish Landowners' Federation based their argument on several grounds. The first was that in many cases the trees or walls were there before the road was built, so that it is the road that is the real cause of the danger. The second ground was that, especially in the case of retaining walls, the damage is caused largely by the vibration of heavy traffic, which should therefore bear the cost; and the third was that since, in the case of retaining walls, the construction or widening of the road interfered with the natural support of the land, the responsibility ought to be that of the highway authority.

I do not want to go over all the ground that we have already covered. I have found out that the argument on the question of who is responsible for retaining walls has been going on for at least a hundred years, with many legal opinions being obtained. The legal position is obscure unless there are records of ownership which assign responsibility for maintenance. With many older retaining walls there are in fact no such records. Difficulties are less likely over walls built in more recent times, because nowadays roads are normally constructed in cuttings or on embankments, and retaining walls are built to support the land above only where there is a special need to save land or to protect property. In such cases, agreements would be negotiated about ownership and future maintenance of the retaining walls; and the noble Lord, Lord Burton, has agreed that the problem does not really arise in connection with new roads.

Where records are lacking or deficient, each case has to be considered on its merits. It is not uncommonly accepted that responsibility for a retaining wall rests with the person whose land is supported, and where the wall supports a road at a higher level than the adjoining land the highway authority will often accept responsibility for full maintenance on the basis that the wall was probably built as part of the road. Even this, however, cannot be taken as the invariable rule; and even where the highway authority accept responsibility for the part of the wall which actually retains the road, there may still be a dispute about any part of the wall which continues above the level of the road.

More difficult cases arise where the wall retains land above the road level. A highway authority would normally be reluctant to accept responsibility in such cases, and there are circumstances in which it would seem inequitable that they should. As I indicated, it might be there because the landowner preferred to have the wall rather than give up more land so that a cutting could be made. Sometimes an estate has continuous walls around it, part of which retain the land above the road; and in urban areas, where roads were originally formed for housing or other development purposes, retaining walls supporting both the road and the land above the road would normally be the developer's responsibility. On the other hand some highway authorities have accepted responsibility for retaining walls supporting adjoining land, usually because of danger to roadusers and the difficulty of getting owners to repair the walls, either because they do not have the money or because they are just being plain awkward.

The Amendment does not attempt to define responsibility for the upkeep of retaining walls; and this, in the light of the variety of circumstances which exist, it would be very difficult to do. It does, however, recognise that there may be circumstances in which the highway authority could reasonably make a contribution towards costs which would normally fall on the owner of property, without prejudicing the question of legal liability. Much of what I have said has been related to retaining walls, but broadly the same considerations apply to trees, fences and so on. As a result of the discussions with the Landowners' Federation and the National Farmers' Union we had discussions with the local authority associations, and they have indicated that they would be prepared to concur in an Amendment along these lines, going part of the way to meet the case which the Landowners' Federation and the National Farmers' Union put forward. For those reasons, I beg to move.


I do not suppose one should object to a ha'porth (or perhaps I should say a pennyworth) of bread rather than no bread at all, but the noble Lord, Lord Hughes, has once more pointed out how this dispute has been going on for over a hundred years, and it seems that this Amendment, although I should not like to object to it, will only further confuse the issue. I hope that he will look further at the whole problem. I feel that there is a legal difficulty which, as the noble Lord himself said, has not been resolved. I hops that on Report stage he may manage to strengthen the position.

On Question, Amendment agreed to.

5.0 p.m.

LORD FERRIER moved Amendment No. 9: Page 13, line 11, at end insert ("after consultation with the local planning authority provided that in the event of the highway authority invoking their powers under the proviso to subsection (2) hereof the highway authority may dispense with consultation with the local authority.")

The noble Lord said: This Amendment arises from something which I said on Second Reading. As your Lordships will see, Clause 19(6) gives untrammelled power to a road authority, without the proprietor, or any party, having recourse to amenity organisation. I agree that power should rest mainly in the hands of the road authority, but the noble Lord, Lord Hughes, on Second Reading, pointed out that occasions may arise when a tree might well be a danger. No one feels more strongly than I do about the importance of road safety, but there is a point at which amenity should be considered regarding a tree, or even trees; because first one tree may be taken down, and then another, until, one by one, quite an important line of trees, or clump of trees, may be destroyed at the sole discretion of the road authority. I think it would be reasonable to include the addition to the clause which I have put forward so as to make it incumbent on the road authority to consult the amenity people before taking down a tree which is covered by an order. I beg to move.


There are two points about this Amendment on which I have some doubt. In the first place, it seems desirable that notice should be given to the planning authority by the highway authority and not, as the Amendment would seem to suggest, by the person ordered to lop or fell a tree. Secondly, on the analogy of Section 26 of the Town and Country Planning (Scotland) Act 1947, I think it would suffice for the highway authority to give notice to the planning authority. In this context the difference between "notice" and "consultation" does not seem significant. The change would keep Clause 19 in line with the basic provision relating to tree preservation orders. Nevertheless, I have a good deal of sympathy with the point of view of the noble Lord, and if he will agree to withdraw his Amendment now, I will undertake to consider, before Report stage, the terms of a Government Amendment which would achieve his purpose.


I thank the noble Lord for his answer. I fully rely on him, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 19, as amended, shall stand part of the Bill?


I have one or two comments to make on Clause 19. I am inclined to welcome the Amendment of the noble Lord, Lord Hughes, in regard to the general acceptance of liability on the part of the road authority for a share in the cost of retaining walls. The noble Lord, Lord Balfour of Inchrye, made a rather bitter complaint about Amendments not being received in time, and the same applies in my own case in respect of this clause.

Noble Lords will recall that on Second Reading I drew attention to subsection (2) of the clause where the authority can require an occupier to carry out work on a wall in 10 days. I pointed out that this is not always possible. The noble Lord agreed that there was something in what I had said, and I had hoped to see an Amendment put forward. But with the Committee stage coming so quickly after the Second Reading it has meant that, because the post was so "tricky", I did not see any of the Amendments— except my own—until yesterday: I was travelling South when they were going North. For that reason I put forward no Amendment to subsection (2) over the question of the period of time.

The noble Lord, Lord Hughes, in supporting his Amendment, pointed out that the legal position is obscure. The point I want to make about this clause, and about the Bill generally, is that the expression "obscure" is perhaps not quite the right term. It might be "not yet determined". There are problems, which have been mentioned today, regarding the additional weight of traffic, the vibration caused by heavy traffic, and also the damage caused to road boundaries by impact in the case of accidents. I should like, to develop, in view of what the noble Lord, Lord Hughes, said a few minutes ago, the point. The real trouble comes from accidents involving big vehicles which can do damage and which are driven off and cannot be identified. Such accidents are a cause of serious loss to riparian owners. This is a matter which at least should go on the Record.

I hope that the noble Lord, Lord Hughes, will be able to say something about the matter of the 10day period to carry out the work on a wall. Winter weather, holidays and the like might make that period insufficient in respect of a wall, though it might be adequate in the case of the removal of a tree or hedge. If the period is not lengthened it may necessitate a reference to the sheriff, and my object is to save trouble for the sheriff in a case where a period of 10 days would not be sufficient in which to have the work carried out.


The noble Lord, Lord Ferrier, prefaced his remarks about this clause by again referring to the short time between the stages of the Bill. I cannot agree that the time has been short. It is a fortnight since we had the Second Reading, and this is the customary period. So I do not quite understand his reference to the time being short.


It is due to the deteriorating postal service. The noble Lord's Amendments did not reach Edinburgh until Monday. I left home on Tuesday, and I did not get them until I got here on Wednesday. They should have come earlier.


If the noble Lord wishes to have a debate on the postal services, the Committee stage of the Roads (Scotland) Bill is not the right place to have it, even with the latitude of which I shall seek to take advantage in a minute.


I was trying to defend the noble Lord against the criticisms he received from the noble Lord, Lord Balfour of Inchrye.


I am finding strange allies these days. On this question of notice, I indicated to the noble Lord, when he raised the point on Second Reading, that obviously there could not be a lot of argument about whether 10 days was good and 14 days was bad, or 14 days was good and 10 days was bad. But the period of 10 days was applied in Scotland under Section 87 of Schedule C to the 1878 Act. and since that time nobody has complained that it is inadequate. Therefore to alter the period from 10 to 14 days would almost seem to be making a change for the sake of change. I should hate to place the noble Lord, Lord Ferrier, in that sort of position, which would be the complete opposite of the sort of thing that he would normally want to do.

I would point out, too, that in many cases the period of 10 days may be a preliminary. If it was unreasonable, the sheriff would not fix a period of 10 days. He could fix a longer period, and in many cases it might well be a month. Where there is potential danger—not immediate danger, because, as the noble Lord, Lord Ferrier, has pointed out, in such cases action can be taken right away—obviously it ought to be dealt with as quickly as possible. If the nature of the operation means that it will require a month for it to be carried out, the less time spent on the preliminaries the better. In these circumstances, we do not think that even in the case of danger it is reasonable to increase the period beyond the 10 days, which has stood the test of time for nearly 100 years. I do not think that we would be justified in adding four days to the preliminary period, because if it turned out that things went wrong because of the additional four days, we should all be sorry that we did it.

Clause 19, as amended, agreed to.

Clause 20 agreed to.

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

5.11 p.m.

LORD HUGHES moved Amendment No. 10:

Page 13, line 36, leave out subsections (1), (2) and (3) and insert— ("(1) A person who, being in charge of a vehicle on a road, allows such quantity of mud, clay, lime, farmyard manure, or other material from the vehicle, or from anything carried on the vehicle, to drop or be deposited on the carriageway of the road so as to create or be likely to create, a danger or substantial inconvenience to persons using the road and who fails to remove the material as soon as is reasonably practicable thereafter, and in any event before the next occurring sunset, shall be guilty of an offence and shall be liable to a fine not exceeding £20.")

The noble Lord said: This is the first Amendment of substance that stands in my name. I indicated on Second Reading that I should table an Amendment to make Clause 21 more flexible in operation. I would remind your Lordships that the clause as originally drafted made it an offence to take a vehicle on the road without taking all reasonable practical steps to remove mud, and so on, from the vehicle. We have had a number of representations on this matter, and we fully recognise that it might in certain circumstances be difficult to clean a vehicle and would be onerous to do so when vehicles were making repeated journeys. The National Farmers' Union have been very helpful to us on this, and have drawn our attention to local authority bylaws which they think would be effective in keeping mud off the roads. These bylaws take the line that dangerous materials should be removed from the road rather than from the vehicle, as soon as it is reasonably practicable to do so. They also say that where mud is deposited on a road in the course of agricultural operations it will be a defence in any proceedings to show that it has been removed by the next sunset.

The Amendment I am proposing proceeds on broadly similar lines, but the reference to cleaning the road by sunset has been altered a little. First, there is no justification for confining the reference to farmers. Building and roadworks contractors may also be making repeated journeys across or along a road, and on the Second Reading the noble Marquess, Lord Lothian, referred to forestry operations. We also think that sunset of the same day should be the last possible time for removing mud from a road, so that undesirable conditions will not be aggravated by darkness or by a drop in temperature during the night. The new clause will make it possible to require the removal sooner in the case of dangerous conditions—for instance, where a wet substance is dropped on a road during hard frost.

I think it is fair to remind your Lordships that we do not envisage that this clause will be rigorously applied to every single instance of a vehicle dropping mud on the road. At present, highway authorities try to reach agreement on the control of such operations, and this is usually achieved amicably. However, it is necessary to have in reserve powers to ensure compliance in difficult cases. The new subsection (1) refers to operations causing danger or "substantial inconvenience" to persons using the road. The references to inconvenience were criticised in another place, but we have information about a major building scheme where the contractors have deposited mud, clay and other material on the road, footways and garage sites, to the considerable inconvenience of the neighbouring householders. So we have come to the conclusion that it is right that the word "inconvenience" should remain.

It was represented to us that the clause as originally drafted related to the use of the vehicle and, as such, was more appropriate for Construction and Use Regulations under the Road Traffic Acts. The Amendment now proposed relates to the road and not directly to the vehicle, and therefore it is in a form more suited to this Bill. There have been successful prosecutions in Scotland under the Construction and Use Regulations in connection with herring bree spilling on to the road from lorries carrying fish. Subsection (2) therefore appears to be unnecessary and has been dropped. Subsection (3) is omitted, purely as a matter of drafting, because the substance is incorporated in the proposed new subsection (1).

We do not envisage that this power will be applied rigidly all over the country on every strip of road where mud may be left. Obviously, it must be related to the circumstances. In my own area, when I was a member of the local authority we obtained local powers in this connection. We did not apply them in every case, but where the conditions created an obvious nuisance the attention of the contractors was drawn to the bylaw and the city engineer made it clear that the bylaw would be enforced. One would see at 4 o'clock in the afternoon, halfanhour before the men were due to stop work, three or four men with shovels clearing away evidence of the day's operations, and that was perfectly satisfactory. There were other circumstances when the mud created no danger or hardship, where it was left to the tyres on the vehicles to remove all evidence by spreading the mud more generally over the whole area so that there was no danger.

I think that this Amendment provides a satisfactory solution, and I should like to express our gratitude to the organisations who have helped us and have drawn our attention to particularly useful local authority provisions. I beg to move.


I should like to thank the noble Lord for his clear explanation of this Amendment. I must say that I think that this is the right way to tackle this problem; in other words, the emphasis must be on cleaning the roads and not on cleaning the vehicles. The noble Lord has explained clearly how he envisages that this Amendment will work, and I do not have any great quarrel with that. My one worry is what I might call the "sunset" paragraph. I appreciate that it is unwise to allow mud and other obstacles to remain on the roads all night, but I see difficulty, when mud is dropped on the road by a farm vehicle just before sunset and it is physically impossible for the mud to be removed at the time. I take a little heart from the fact that the noble Lord indicated that the authorities would be reasonably flexible in this matter, but I am not certain whether it is right to have so definite a period in the clause. Apart from that, I should like to thank him. It looks as if this problem, which has taken a good deal of Parliamentary time, may at long last be solved.


If I may reply to the point, it is conceivable that circumstances such as the noble Marquess suggests might arise. I think this is a case of exercising reasonable discretion. If a vehicle is going to make a dangerous mess on the road in one single journey, it seems to me that there is an obligation on the operator to consider whether he ought not to defer the journey until next day, if he cannot remove any possible danger that results from it. If he cannot do so, and it is impossible to remove the dangerous material, it means that he has acted wrongly in creating a hazard, I think he must face up to the responsibility for having made the wrong decision. If he must make a journey in these circumstances, then I think there is an obligation on him to do it in a way which will enable him to remove the resulting hazard; and if he cannot remove the resulting hazard, then he should wait until a more suitable time to make the journey. Personally, I should not suspect that a journey of this kind would create a hazard which anybody would worry about. It is the continuing operations over a period that are more likely to cause the problem, and in these circumstances it is reasonable to expect a man to deal with it before sunset.


If the farm vehicle drops something on the road during the hours of darkness, does it mean that the farmer need not clear the object from the road until the next sunset, or does it mean that he has to clear it straight away? After all, summertime is to be continued next year, a great deal of farming has to be done in the dark in the mornings, especially in the northern parts of the country.


I think that the answer is quite simple. The "next occurring sunset" must mean the next sunset. If a fanner starts operations at one sunset, he is governed by the following one.


I think that the Government have made a great improvement to this clause. It is not an easy matter to say when dirt from a farming implement or from a building site becomes a hazard. But having said that, I am a little worried about what the noble Lord said. He said that it is not envisaged that this power will be used up to the limit, but he thinks it is a good thing to have a reserve power. That is all very well with administration. But this is criminal legislation, and one cannot talk about reserve power when dealing with crime. This is not the way to approach the subject. It is quite true that we do not have much private prosecution in Scotland; it has more or less fallen into desuetude nowadays. I do not like that approach very much.

This leads on to the point that it is "likely to create, a danger or substantial inconvenience". We heard yesterday something about being "as clear as a Delphic Oracle". The words "substantial inconvenience" could mean almost anything. If the noble Lord was keen on roller skating down the highway, for instance, pieces of mud would be a substantial inconvenience. I should very much prefer to use something nearer the original word, like "obstruction" or "danger". "Substantial inconvenience" is very vague, and I wonder whether it is not too vague to put in as a ground for criminal prosecution. I should like the noble Lord to look at that suggestion. I know that he has strengthened the clause beyond the word "inconvenience", which of course was too soft, by putting in the word "substantially". We do not know how the courts or those responsible for prosecutions will interpret this. I would suggest that the noble Lord might consider whether those words could be strengthened.


I do not see how we can possibly strengthen these words. Either we make it "inconvenience" purely and simply, or we attempt to qualify the inconvenience; and this is what we have done. In another place they were strongly opposed to the convenience element being removed, because, particularly in the towns, the most objectionable part of this sort of thing does not cause any danger to people, but it can make life exceedingly unpleasant if children or even adults bring the results of these operations into the house on their boots and shoes. To remove convenience from the clause in any form would mean that these people, who have a strong and legitimate grievance, would have to put up with such things in perpetuity if they could not show that there was danger or obstruction being caused. I think that the other place were right in doing this.

The noble Earl has objected to giving a power which is not always going to be used. But not all legislation which is passed by Parliament in which penalties are imposed for doing particular things is passed in the firm belief that every possible infringer is going to be prosecuted. If we were so to operate there would be a real danger of having more policemen than all the rest of the population put together. The powers of the local authorities, which I quoted, are contained in private legislation to which Parliament has given its consent. In giving those powers to local authorities, Parliament did not visualise that the town clerk and the city engineer would be running round the city, making certain that every 100 yards or so of street on which mud was deposited would be the subject of a criminal prosecution.

It has been shown—and this is why we have accepted this proposal—that over a period of years it is a power which has been exercised with discretion. We are conferring the power on all local authorities because of the way in which those who have had the power have exercised it. To suggest, as the noble Earl has, that because we do not expect it to be operated in every conceivable case this is the wrong thing to do is, I feel, a legal objection to which ordinary common sense should not pay much regard.

On the example which the noble Earl gave of the possible difficulties about the term "substantial inconvenience", may I say that if it will ease his mind I will give him a firm assurance that I have no intention of roller skating on roads either covered with mud or totally free of mud. I would go even further and say that I have no intention of roller skating anywhere.


For the sake of the record, I must say that I profoundly disagree with the noble Lord's interpretation of criminal law. If Parliament passes a criminal law, it expects it to be fulfilled. A criminal law is not to be held in terrorem over the citizens of this country and not to be utilised to the full. If the noble Lord thinks lightly of the criminal law, I do not.


May I mention a point? It seems that if anyone who is in control of a vehicle allows mud, and so on, to drop from that vehicle, it is an offence; or if he allows it to drop from anything carried on that vehicle it is an offence. It occurs to me that this provision does not include anything that is dropped from a muckspreader or from the trailer that is drawn by a muckspreader. Very often nuisance of this sort is caused by some farm equipment that is drawn behind a tractor or something of that kind. Therefore it might be advisable if the subsection read, from anything carried on the vehicle or drawn by the vehicle".


I am grateful to my noble friend for that intervention. It is a point that I must consider and, if necessary, come back to on the next stage. If I may have what I hope will be the final word on the disagreement with the noble Earl, it seems to me that common sense is something which it is worth while preserving.


I should like to make one small point. I congratulate the noble Lord, Lord Hughes, upon the customary thoroughness with which he has gone into this matter. It is difficult, and I think he has made his point that the leniency of this Bill lies in whether or not a prosecution is laid. But I agree with the noble Earl that the courts are going to interpret this Bill, when it becomes an Act, as it is written. I do not think we can have any sort of direction to the courts to read it in a lenient way. The leniency must come, surely, from whether or not a prosecution is laid.


Yes, I must accept that. That was the whole tenor of my remarks: that the local authorities would exercise discretion. They want to have powers to deal with a situation which is needlessly unpleasant or dangerous. I do not think they would want to go beyond that.

On Question, Amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Use of builders' skips on road for non-building operations]:

5.30 p.m.

LORD HUGHES moved Amendment No. 11: Page 14, line 19, leave out ("in order to use it") and insert ("to be used")

The noble Lord said: This is a drafting Amendment. Clause 22(1) is intended to ensure that the person who actually deposits a builders' skip on a road must apply for the permission of the highway authority unless the skip is to be used in connection with building operations, when the buildings authority give consent under Section 8 of the Building (Scotland) Act 1959. It is common practice for builders' skips to be hired out by their owners to firms which use them, the owner afterwards removing them. In such a case, Clause 22(1) could be interpreted to suggest that neither the owner nor the hirer need obtain the consent or the highway authority. The owner could contend that since he is not himself going to use the skip he need not obtain the consent: the hirer could contend that since he does not actually deliver the skip he need not obtain permission. The Amendment makes it clear that the person actually depositing the skip is to obtain the necessary consent. He can of course enter into an agreement with a hirer whereby the latter will make himself responsible for the implementation of any conditions attached to the permission and such agreements are recognised in subsection (3). I beg to move.

On Question, Amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 agreed to.

Clause 24 [Obstructions and excavations in roads without consent]:

LORD HUGHES moved Amendment No. 12: Page 15, line 40, at end insert (";and that person shall maintain an excavation filled in by him in pursuance of this subsection for such period, not exceeding 6 months from the completion of the filling in, as may be specified by the highway authority.")

The noble Lord said: Amendments Nos. 12 to 15 are necessary to achieve a single purpose; namely, to ensure that a person who fills in an excavation which he has made in a road will maintain the surface for a further period specified by the highway authority, up to a maximum of six months. The Amendments result from representations by local authorities. After a hole has been filled in, the filling tends to sink, with the result that the surface of the road becomes uneven. When statutory undertakers break the surface of a road they are required, under Section 7(6) of the Public Utilities Street Works Act 1950, to reinstate the surface and to maintain it for six months. Similarly, when Edinburgh, Glasgow or Dundee Town Councils give a person authority to make an excavation, they can require him under local Act powers to reinstate the surface and maintain it for a further period: six months in Edinburgh and Dundee, and three months in Glasgow.

There is a very real practical problem here. It is not at all uncommon to find, a few weeks after a trench has been filled in, that it has subsided, leaving a depression in the road which may be dangerous. It is obviously equitable that the person responsible should make good the damage, especially if the original excavation was made without the consent of the highway authority. The first Amendment provides for a maintenance period of up to six months. The other three Amendments are consequential. I beg to move Amendment No. 12.

On Question, Amendment agreed to.


I beg to move Amendment No. 13.

Amendment moved— Page 15, line 42, leave out ("on being required to do so under") and insert ("or to maintain an excavation which has been filled in by him, as required by")—(Lord Hughes.)

On Question, Amendment agreed to.


I beg to move Amendment No. 14.

Amendment moved— Page 16, line 4, after ("so") insert ("or if he fails to maintain an excavation which has been filled in by him as required by subsection (2) of this section ")—(Lord Hughes.)

On Question, Amendment agreed to.


I beg to move Amendment No. 15.

Amendment moved— Page 16, line 5, after ("in") insert ("or maintain")—(Lord Hughes.)

On Question, Amendment agreed to.

LORD HUGHES moved Amendment No. 16:

Page 16, line 19, leave out subsection (7) and insert— ("(7) This section and subsections (1), (2) and (3) of the next following section shall not apply—

(a) in any circumstances where any of the following enactments applies—

(i) section 29 of the Burgh Police (Scotland) Act 1903 (penalty on unauthorised occupation of street), 1903 c.33.
(ii) section 8 of the Building (Scotland) Act 1959 (occupation of parts of road for deposit of building materials), 1959 c.24.
(iii) section 19 of the Civic Amenities Act 1967 (penalty for unauthorised dumping of motor vehicles etc.), 1967 c.69.
(iv) section 22 or 23 of this Act, or
(b) to any works to which the street works code as contained in the Public Utilities Street Works Act 1950 applies.") 1950 c.39.

The noble Lord said: This is a drafting Amendment to make it clear that Clause 24 and subsections (1) to (3) of Clause 25 will not apply to deposits or excavations which are controlled under the five enactments listed, and that these enactments will continue to apply to these deposits or excavations. The clause, as drafted, could be interpreted as requiring a double control, under Clauses 24 and 25, as well as under the existing enactments. I beg to move.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 to 48 agreed to.

Clause 49 [Interpretation]:

Lord BURTON moved Amendment No. 17: Page 26, line 19, at end insert (""fences" includes: cattle grids; ")

The noble Lord said: I mentioned this Amendment on Second Reading. It seems to me that where a side road comes in on to a trunk road there is no paint in leaving a gap in the fence, because it will require a cattle grid. This has already occurred in at least one instance known to me, where a road comes out on to the A.9 and the trunk roads authority have refused to install a cattle grid, on the ground that it is not part of the road authority's responsibility. I hope that it will be possible in the definition to maintain that the fencing which must be put in for safety reasons will also include cattle grids. I beg to move.


As I understand this Amendment, it is to enable highway authorities responsible for main roads to install cattle grids on side roads from which stock may wander on to the main road. I find it difficult to picture the situation which the noble Lord has described, where a main road is fenced for its whole length, but cattle can wander on to an unfenced side road and then on to the main road. I am sure that in these circumstances the Secretary of State, who is responsible for the main road, would not fence the main road. What is the point of putting a fence on the trunk road if there are no fences on the side road, and the cattle can stray on to the main road in that way? The obvious remedy, if the Secretary of State is going to fence the trunk road, is that the owner of the animals or land must accept responsibility for fencing the side road, otherwise the fencing of the main road serves no useful purpose whatsoever. The noble Lord shakes his head; if he can give me some illumination I shall be happy for him to elaborate further.


I am thinking in particular of where the Shennachie Road conies out on to the A.9, near Moy. It is also quite possible in other cases that I know, where roads meander across hill country for miles. It would be quite unreasonable to ask the owners of the ground to fence the roads. On the other hand, it may be that the road side is fenced. It may be there is a field alongside the road and that the field is fenced, but beyond that the road is open. I think it is essential that the actual mouth of the road is safeguarded in some way. To install a cattle grid is often beyond the pocket of the small owner of ground, particularly in the case of the type of grid required by the local authorities, which are considerably more elaborate than the cattle grids that an ordinary proprietor might consider to be necessary to hold stock.

5.39 p.m.


This is exactly what I thought the noble Lord, Lord Burton, might have in mind. He is saying that it is necessary to keep the cattle off the main road. He envisages that the Secretary of State may accept his responsibility by fencing the main road but says it will not in fact accomplish its object because the owner of the land or cattle cannot face up to his responsibility of fencing the side road and so achieve the object of keeping the cattle off the road. In these circumstances the placing of a grid in the side road is a cheap method for the owner to accomplish perhaps exactly the same purpose as would be accomplished by fencing the road. I can see no reason in these circumstances for placing responsibility for that grid on to the highway authority. It seems to me that if this can be done as a cheap substitute for a fence, then it is an obligation which the owner ought to be prepared to shoulder.

In fact, this is done in various places. I myself use an old farmhouse in an Angus glen where one of the hazards of getting to it is negotiating the cattle grid which the owner has placed on the side road for exactly this purpose. The mile or so of very indifferent road which I then have to travel to the house has not a fence anywhere along it. But by placing this cattle grid a short distance from the main road, and then fencing from there to the main road, he achieves the purpose at comparatively little expense. I can see no reason for placing this responsibility on the shoulders of the highway authority. I am very sorry: I cannot possibly accept this Amendment.


May I elaborate a little further on the probability, or possibility, in this particular case? The side road is a county council road; it is nothing to do with the farmer concerned. He is concerned only with the land on either side of this road. There are other cases which occur like this. The local authority will in fact put up a cattle grid only where there is an existing gate. Whether this is a rule of the local authority or whether it is a general rule, I do not know; but this is the ruling which exists. Here is a case where stock can wander out on to the public road, causing danger to people using the main road; yet it appears that it is impossible to have some fencing erected.


The noble Lord is quite right. He has correctly pictured the circumstances in which the responsibility for providing a grid is placed on the highway authority—that is, to provide a better substitute for the gate which otherwise would have been across the road. In these circumstances it is in the interests of the road that the grid should be provided. But even in the circumstances which the noble Lord envisages, where the side road is a public road and is not the responsibility of the landowner, there is provision in the Act of 1950 for a grid to be placed in such a road, not for the benefit of the highway authority but for the benefit of the livestock.

Section 9 of the Highways (Provision of Cattle Grids) Act 1950 empowers a highway authority to enter into an agreement with anyone having an interest in land whereby that land may be used for the provision of a cattle grid; and Section 10 of the same Act provides for agreements whereby the highway authority can receive financial contributions towards providing cattle grids. I am quite certain that if there were cases of the kind which the noble Lord has in mind, and the owner of the cattle decided that this was a much more economical way of ensuring the continued safety of his livestock than by fencing the whole of the side road, the authority would be quite happy to have such a grid provided, so long as they were reimbursed the expense from the owner to whose advantage it was going to be to have the grid put there.


We must come back to this: that the danger lies on the main road. Therefore, surely it should be the responsibility of the main road authority to safeguard against this danger. This is what the fencing is for. One is allowed to put up fencing to stop children from being endangered when they run out of school. I do not think the obligation is placed on the school; it is placed on the authority. Surely this is the object of the exercise. But because stock can run out, it is being said that the poor farmer must be responsible. It is nothing to do with the farmer. It is safeguarding people on a public road.


Not at all. I am pointing out that if the highway authority, the Secretary of State, in the case of a trunk road, or special road authority, has accepted the responsibility for fencing the trunk road, there the responsibility ends. I have pointed out that he would not fence such a trunk road if there were other means of preventing the animals from getting on to the trunk road. That obviously requires the owner to accept his responsibility other than on the trunk road. If he has not fenced, or if he has not provided a cattle grid, I can assure your Lordships that there will not be a fence on the trunk road.


In the particular case that I have in mind the fencing has been put round arable fields by the farmer himself. He then has a gap on a road which is a county council road. The county council say that it is not their responsibility; it is for safeguarding the public road. There are other cases like this. Therefore I feel it must be the main road authority's responsibility for safeguarding the public.


Did the noble Lord say that the owner has fenced his land?


He has fenced around his fields, yes; and beyond the fields is open countryside. The stock walk down the road and out on to the main road.


He has put his fence in the wrong place. What is the point of putting a fence in one place and the cattle somewhere else?


To keep the stock off his arable ground; but it is not worth his while to fence miles of the old ground beyond.


In that case, if he wants to save money in one direction, he must accept responsibility in the other. After all, the public purse is not there merely as a means of enabling people to avoid their own legitimate responsibilities.


May I put it another way? Will the noble Lord agree that a "fence" includes a gate?


Maybe the noble Earl, Lord Selkirk, is the proper one to answer that question. I am no legal expert. Of one thing I am quite certain, however, and that is that I am not prepared to say that a "fence" includes a cattle grid.


That was the point of my question. This seems to me to be rather a storm in a teacup. If it falls upon a road authority, either in part or in whole, to fence a main road, and there is a side road in which, if it were not a side road there would be a gate, then that gate would be paid for, either in whole or in part, by the highway authority. If that is provided with a subsidy in the form of a cattle grid, then it is only reasonable that it should be paid for in the same way.


May I say that that is a noble effort, but I am not convinced.

On Question, Amendment negatived.


I have already referred to this Amendment, No. 18. I beg to move.

Amendment moved— Page 27, line 22, at end insert ("' traffic sign' has the same meaning as in section 54(1) of the Road Traffic Regulation Act 1967;").—(Lord Hughes.)

On Question, Amendment agreed to.

Clause 49, as amended, agreed to.

Clauses 50 and 51 agreed to.

Schedule 1 agreed to.

Schedule 2 [Enactments repealed]:

VISCOUNT MASSEREENE AND FERRARD moved Amendment No. 19: Page 29, line 26, column 3, after ("sections") insert ("LXXX").

The noble Viscount said: As we have seen, this Bill confers on highway authorities new discretionary powers to carry out work on roads, with consequential powers to acquire land and to pay compensation. My object in putting this Amendment down is to delete Section LXXX in Schedule C of the Roads and Bridges Act 1878 so as to bring everything appertaining to the acquisition and compensation for land or materials acquired for road-making in Scotland into line with modern conditions. I have the requisite Section LXXX from the Act of 1878, but I will not bore your Lordships by reading it because it is rather long.

I should like to mention some of the salient facts which affect us in this Amendment. Section LXXX of the Act of 1878 enables the local authority or the highway authority—they are referred to as "the trustees" in the Act, but that means the local authority or the highway authority—to authorise any person to quarry or mine for any materials necessary for road making, for the building of road bridges, for building a toll house, or for any other work connected with road making. This applies to common or open uncultivated land—in other words hill land. Under this section the authorities are also allowed to deposit mud or rubbish thereon. The extraordinary thing is that under this section the authority does not have to pay any compensation for the surface damage done, or in fact for the materials quarried. The only exception is in regard to stone which is to be used for building.

Where does the Act draw the line? In fact the Act is not explicit, because as I have already pointed out, under Section LXXX stone can be taken for building any bridge or toll house or any other work connected with such road. Does this include building a house for the road surveyor, or perhaps for the foreman, or indeed for any of the workers engaged on the construction of a road? This is not made at all clear. There is no doubt that when this Act was passed in 1878 the hills of Scotland were very wild and lonely places and were of little value. In addition, they had few and small roads. However, the whole position is now changed, and when Parliament passed that Act it could not have envisaged the vast increase in the population of the United Kingdom, with hundreds of thousands of tourists going to the Highlands of Scotland and also to the hill areas in the Lowlands.

There has been a great rise in the value of these hill lands. Today we have roads in the Highlands which are great carriageways. There are motorways and main roads all over the Highlands and the amount of material that is now used in the construction of these roads is far greater than was ever contemplated in 1878 when this Act was passed. The authority can now take away millions of tons of material and under this Act it need pay no compensation. Material can also be dumped on one's land without compensation being paid.

At this point I should declare an interest, because this fact has been brought home forcibly to me recently. The local authority has constructed a new road through a glen of mine and has compulsorily acquired land for quarrying. Hundreds of thousands of tons of gravel and rock have been taken away and no compensation has been paid. Apart from that, of course, it is a great scar on the landscape. It is possible to take away half a hill in the carrying out of these operations.

It seems quite illogical that, whereas the authority pays compensation for any land taken for the actual road, it does not compensate for any land taken for the quarry, or for the material it has taken out of the quarry. There must be something wrong here. Possibly my Amendment is not worded quite correctly to have the effect of deleting this section, but I see in the Bill that the Government are repealing many of the sections under that Schedule. I should have thought that if this section were deleted another clause could then be put into the Bill to ensure that the authority cannot compulsorily take land for quarrying without paying some compensation, though in fact the deletion of Section LXXX would presumably do just that.

Another question which arises is that when these scars have been made on the landscape, under the Act the authority does not have to eradicate them in any way—it does not have to fill in the quarry or to cover it over. This has to be done on enclosed land, but not on hill land. I should have thought that it would be perfectly simple to make compensation under the usual procedures for the payment of compensation for land taken for roads apply to land taken for quarrying and also for the materials taken out of the quarry. I should have thought that compensation for materials taken could have been fixed either under the usual commercial practice or by means of a royalty laid down by Statute. I beg to move.


The noble Viscount, Lord Massereene and Ferrard, will forgive me if I do not follow him through all these highways and byways of compensation law. Perhaps I should be straining the patience of my colleagues a little too much if I were to do so. However, I would say that all that is wrong with this Amendment is that it errs on the side of simplicity: it takes everything out and puts nothing else in its place. My first inclination was to say that I could not accept the Amendment for that reason, but I should like to astound the noble Viscount by saying that I will accept the Amendment, although on the understanding that at Report stage I will put in the substitutes.

The Committee will recollect that when the noble Lord, Lord Ferrier, referred to the deletion of another section of this Act—Section 94—I pointed out that it was reenacted in more modern form in Clause 5 of the Bill. This is what we shall have to do in this connection. In fact we had not overlooked this point, but the advice I had was that this was the sort of thing which could be remedied in the subsequent Consolidation Bill. The main defects are the archaic language in which the section is couched, and we could accomplish our object in consolidation. However, we accept that there are three things which are wrong with Section LXXX of the 1878 Act. The first is that it distinguishes between enclosed and unenclosed land. That seems to us to be neither necessary nor justifiable. The second is that it does not provide for the highway authority to give notice in all cases that they propose to take materials; we think they should. Thirdly, it provides for compensation on a rather odd basis related to the distance the materials are transported from the site. That throws a rather peculiar light on the way in which Parliament thought in 1878: that the question of compensation should be related to whether it was moved more than three miles or less than three miles and that in the one case compensation was paid and in the other it was not.

On reflection, therefore, we think that perhaps these alterations might be considered as alterations of substance and not merely consolidating. I therefore propose to accept the Amendment deleting Section LXXX, and to table Amendments substituting new provisions which will deal more equitably with the three items to which I have referred. I must express gratitude to the noble Viscount for having raised the matter, although I believe I saw the noble Lord, Lord Ferrier, whispering to him shortly after I came in and I thought he had been given an indication that I was going to be helpful, and that therefore he would have been more brief. But I am grateful to him.

May I trespass on the time of the Committee by giving an answer to the noble Lord, Lord Burton, on the point he raised about appeals on the limits of deviation? I intended to give the answer on the last Amendment but I got into such an argument with the noble Lord that he might have thought that the rather favourable nature of the answer was an effort to buy off his opposition. The 50metre deviation is part of the proposals which would be published in a trunk road or special road order, and which could be objected to. The proposals as published would show the limits of deviation which might be claimed in the particular case, and the opportunity to object therefore arises there. There thus is a right of appeal on the general, which would include this item, so there is no need to repeat a special right of appeal. Having said that, may I say that the answer is, briefly, that the man can appeal against a 50metre deviation.


I should like to thank the noble Lord for accepting the Amendment. If this question had not been brought home to me so forcibly in practice, I having had my own rock and gravel taken, I probably should not have thought of it. But I should like to thank the noble Lord very much for his attitude to the Amendment.

On Question, Amendment agreed to.


Amendment No. 20 is consequential on an Amendment made in another place, when Clause 26 was amended to enable highway authorities to control the installation of overhead bridges. This was an extension to all highway authorities of an existing power available to town councils in Section 132 of the Burgh Police (Scotland) Act 1892. The present Amendment repeals the 1892 Act power. I beg to move.

Amendment moved— Page 30, line 2, column 3, at end insert ("In section 132(3) the words "or bridges over", and in the proviso to that section the words "on bridges".").—(Lord Hughes.)

On Question, Amendment agreed to.

Remaining Schedule 2, as amended, agreed to.

House resumed: Bill reported, with Amendments.