HL Deb 24 October 1984 vol 456 cc225-32

[References are to (Bill 157) as first printed for the Commons.]

1 Clause 1, page 2, line 11, leave out ("thereof) and insert ("of their intention in that regard").

2 line 12, leave out ("thereof) and insert ("of such intention").

3 line 16, after ("representation") insert ("and give notice to the person making it and, with a note or copy of the representation, to the frontagers (or to the other frontagers if it was a representation by a frontager) of the authority's decision as regards whether or not to proceed with the addition or deletion following the representation").

4 line 26, leave out ("persons") and insert ("frontagers").

5 line 27, leave out ("proposed addition or deletion") and insert ("decision following a representation").

6 line 27, leave out ("(a)").

7 line 28, leave out ("if that addition or deletion is subsequently made") and insert ("within 28 days of such notice").

8 leave out lines 31 to 33 and insert ("and, where that decision requires the addition or deletion to be proceeded with, shall be given effect to forthwith by the local roads authority.

(5A) A decision of which notice is given under subsection (4) above shall not be given effect to until the 28 days mentioned in subsection (5) above have expired or, if the matter has been referred under the said subsection (5) to the sheriff, until the summary application has been disposed of or abandoned.").

9 line 36, leave out ("lands and heritages") and insert ("land").

10 line 38, leave out ("include") and insert ("includes").

11 line 39, leave out ("lands and heritages") and insert ("land").

12 line 42, leave out ("front or abut") and insert ("fronts or abuts").

13 line 42, leave out ("have") and insert ("has").

14 line 44, leave out ("lands and heritages") and insert ("land").

15 line 45, leave out ("front or abut") and insert ("fronts or abuts").

16 Page 6, line 22, leave out ("this section to direct that a road shall become a trunk road") and insert ("subsection (2) (a) above").

17 line 24, after ("road") insert (", or a proposed road,").

18 line 25, leave out ("a") and insert ("the").

19 line 26, after ("is") insert ("(or will be)").

20 line 28, at beginning insert ("Subject to subsection (7)(i) below,").

21 line 41, leave out ("such").

22 line 41, after ("order") insert ("under this section").

23 Page 7, line 9, after ("road") insert— ("—(i) is revoked by a subsequent order made at any time before the date on which that road is opened for the purposes of through traffic, Schedules 1 and 2 to this Act shall have no effect as regards the revoking order, but within 28 days of the revoking order's having been made notice of the revocation shall be published by the Secretary of State in the Edinburgh Gazette and in such other manner as he thinks best adapted for informing persons affected; (ii)").

24 line 10, leave out ("time before the date on which that road is opened for the purposes of through traffic") and insert ("such time as aforesaid").

25 line 13, leave out ("this section") and insert ("subsection (6) above").

26 Page 8, line 18, after ("road") insert ("(or proposed road in course of construction)").

27 line 22, after ("road") insert ("(or proposed road in course of construction)").

28 line 39, after ("road") insert ("(or proposed road)").

29 Clause 9, page 9, line 41, after ("road") insert ("(or proposed road in course of construction)").

30 line 43, after second ("road") insert ("(or proposed road)").

31 page 10, line 2, after ("road") insert ("(or proposed road in course of construction)").

32 line 3, after ("route") insert ("and").

33 Clause 11, page 12, line 7, after ("road") insert ("(or proposed road)").

34 line 18, after ("roads") insert ("(or proposed roads)").

35 line 21, after ("road") insert ("(or to a proposed road)").

36 line 22, after ("road") insert ("(or to a proposed road)").

37 Clause 12, page 12, line 25, after ("made") insert ("by the roads authority").

38 line 26, after ("road") insert ("(or proposed public road)").

39 line 27, after ("road") insert ("(or proposed public road which is to be a special road)").

40 line 28, after ("road") insert ("or proposed road").

41 line 29, after ("road") insert ("or proposed road").

42 page 13, line 5, leave out subsection (2).

43 line 9, after ("section") insert ("by the Secretary of State as roads authority").

44 line 13, leave out ("or confirmed").

45 line 28, at beginning insert ("Except in a case to which section 125 of this Act applies,").

46 line 31, at end insert— ("(7) The Secretary of State may by regulations prescribe the procedure to be followed by a local roads authority in making an order under this section; and such regulations may in particular make provision as to the means of public notification of the proposal to make such an order and may make like provision in relation to the local roads authority as is made by subsection (4) above in relation to the Secretary of State. (8) Where a local roads authority propose to make an order under this section, then, before the expiry of 28 days from the date of the first public notification, in accordance with regulations under subsection (7) above, of the proposal to make the order, any person may object to it to the authority, and—

  1. (a) if no such objection is made, or objection is made but withdrawn, they may confirm the order themselves; and
  2. (b) if such objection is made and not withdrawn, the Secretary of State shall determine the matter, and may confirm the order with or without modification or refuse to confirm it.").

47 Clause 13, page 14, line 16, leave out ("they all") and insert ("the requisite number of the frontagers so").

48 line 16, leave out ("their behalf) and insert ("behalf of the frontagers").

49 line 23, at beginning insert ("Without prejudice to section [Power to contribute to, or carry out, work on private roads] of this Act,").

50 line 27, leave out subsection (7).

51 line 33, at end insert— ("(9) In subsection (4) above, "the requisite number" has the same meaning in relation to the private road and the land fronting or abutting the road as it has in section 1(6) of this Act in relation to the road and land mentioned in that section.").

52 After Clause 13, insert the following new clause:

("Power to contribute to, or carry out, work on private roads .—(1) A local roads authority may, if they think fit, pay the whole or any part of any expenditure incurred by a person in making up or maintaining a private road; and may, without prejudice to section 14 of this Act, at their own expense carry out any repair which they consider necessary in relation to a private road after giving such notice as is reasonable in the circumstances. (2) For the avoidance of doubt—

  1. (a) a local roads authority do not incur responsibility for making up or maintenance of the private road by reason only of their acting under subsection (1) above;
  2. (b) the carrying out of work by a local roads authority under subsection (1) above does not create any implication that the private road, on completion of the work, is of a standard satisfactory to the authority for the purposes of section 15(1)(b) of this Act.").

53 Clause 15, page 15, line 6, leave out ("on") and insert ("if).

54 line 6, after ("application") insert ("is made").

55 line 7, after ("shall") insert (", subject to subsection (1C) below, within 12 months of the application").

56 line 8, at end insert— (": Provided that where the requirement mentioned in paragraph (a) above has been fulfilled by the authority under subsection (4) of the said section 13 or the work specified in the notice has been carried out or completed by them under subsection (5) thereof no such application shall be required and the authority shall add the road to the said list forthwith. (1A) If, on completion of a private road constructed in accordance with a construction consent granted under section 20(3) of this Act, the person granted such consent applies, as respects the road, under this subsection to the local roads authority they shall within 12 months of the application add the road to their list of public roads. (1B) Any dispute in relation to—

  1. (a)subsection ( 1 ) above, between the local roads authority and any frontager, or
  2. (b) subsection (lA) above, between that authority and a person applying (or purporting to apply) under that subsection,
shall be determined by arbitration by a single arbiter appointed in default of agreement by the sheriff on the application of either party. (1C) Without prejudice to any addition made under subsection (1) or (1 A) above, the said subsection (1) or as the case may be (1A) does not impose a duty as respects a road which within the period there allowed for such addition deteriorates to a standard below that mentioned in the said subsection (1).").

57 line 9, leave out ("subsection (1) above") and insert ("the foregoing provisions of this section").

58 line 12, leave out ("those lands and heritages as") and insert ("the land fronting or abutting the road as it has").

59 line 13, leave out ("lands and heritages") and insert ("land").

60 Clause 16, page 15, line 22, leave out ("lands and heritages") and insert ("land").

61 line 22, leave out ("front or abut") and insert ("fronts or abuts").

Lord Cameron of Lochbroom

My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 61 en bloc. Should any of your Lordships wish it, I shall be happy to give further specification in regard to any of these amendments.

Moved, That this House doth agree with the Commons in the said amendments.—(Lord Cameron of Lochbroom.)

Lord Ross of Marnock

My Lords, I think that we are very grateful to the Lord Advocate. After all, he inherited this Bill from a previous Lord Advocate. I do not know whether he realises it, but it set out on its parliamentary life on 3rd November last year. It has not exactly been an urgent Government priority. I only regret that they did not take my advice when I suggested that they should lose the Bill between this House and the other place. I call it the "James Mackay Memorial Bill". We could have done quite well without it. I do not know whether the Lord Advocate saw a note that I passed to the Government Whips where I suggested that we really should take these amendments page by page. There are only three or four that are worthy of comment.

Lord Hughes

My Lords, in moving the amendments en bloc, the noble and learned Lord said he would answer questions about any of them. I do not want to object to their being taken in that way. As a matter of fact, I should have been quite happy had he taken the amendments from beginning to end en bloc. They seem to be a draftsman's paradise.

I wanted to ask a question which concerns various parts of the Bill. For instance, in Amendment No. 17 there is reference to, "a proposed road". The phrase "proposed road" is also used in Amendment No. 28, but Amendments Nos. 26 and 27 talk about, proposed road in course of construction". Quite honestly, I do not understand how a proposed road could be in course of construction. As soon as construction starts, it becomes a road.

That would appear to be the position when we get to Clause 144, where Amendment No. 210 says: 'proposed road' means"— and I will leave out the words in brackets which refer only to public roads— a new road in course of construction, or proposed to be constructed, by or on behalf of any person". It seems to me that in its zeal for change the other place has had rather misguided enthusiasm for adding still further to the matter by having these different definitions, when the interpretation appears to make the difference unnecessary. Perhaps the Lord Advocate will elucidate.

Lord Cameron of Lochbroom

My Lords, I am grateful to Lord Ross for the welcome that he gave to the return of the Bill to this House. I am sure that when he referred to my predecessor, the noble and learned Lord, Lord Mackay of Clashfern, he was not intending to suggest that it was not necessary to have him in this House.

However, if I may just deal with the question put to me by the noble Lord, Lord Hughes, with regard to proposed roads, I think that your Lordships may recollect that when the Bill was originally before the House, the definition of "road" included a reference to a proposed road. The result of that was that with such a definition of the word "road"—and of course the word "road" only appeared throughout the Bill as it was then before the House—it could have had somewhat unfortunate consequences in several of the clauses as they were then drafted.

I give but one example to indicate why that should be. There was the offence for an owner letting a child under 16 drive his horse and cart in a road. That would have applied whether the road was in being or whether it was as yet unconstructed—merely a figment of the planner's mind.

So far as the second part of the matter to which Lord Hughes referred—the use in certain circumstances of the term: proposed road in course of construction"— that is because the definition, "proposed road", contemplates not merely a road which is actually in the course of construction but also a road which has as yet merely been planned—that is to say, one which is on the drawing board and has not yet got to the stage of construction. But, of course, there are circumstances in the course of the Bill when it would obviously be inappropriate that clauses should refer simply to a road which is at that point on the draftsman's board and not in the course of construction. I trust that my attempts to allay your Lordships' fears are at least in part successful.

Lord Hughes

My Lords, I thank the noble and learned Lord the Lord Advocate for that explanation. I shall read it with interest because at the moment I do not feel that I have elucidation. However, I wish to assure him that in this matter I have no fear—I lost all that way back about March or April of this year when we were wading through the Bill.

On Question, Motion agreed to.


62 Clause 16, page 16, line 8, leave out ("and") and insert— (" (bb) provide that—

  1. (i) in a case where circumstances mentioned in provisions made under paragraph (c)(vi) below have arisen the local roads authority shall construct the road or, as the case may be, make it up to the standard mentioned in section 15(1) of this Act; and
  2. (ii) subsection (2) of section 19 of this Act shall apply to a road so constructed or made up as that subsection applies to a road constructed under subsection (1) of that section; and")

Lord Cameron of Lochbroom

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 62. This amendment relates to the road bond provision in the Bill. It enables regulations which may be made under Clause 16 to clarify that the local roads authority will complete an unmade-up road for which a road bond has been deposited and take the completed road onto the list of public roads.

Moved, That this House doth agree with the Commons in the said amendment.—(Lord Cameron of Lochbroom.)

Lord Carmichael of Kelvingrove

My Lords, I wonder whether the noble and learned Lord the Lord Advocate could perhaps help me in my interpretation of this amendment. Could he tell me what safeguards the local authority or the road authority would have if there was a very long delay between the starting of a scheme, for example an estate of houses, and the building of a road. A point could be reached in which because of a long delay, there could have been a considerable escalation of cost over what was generally agreed as being a reasonable bond for the local authority to complete the road. However, as I understand it, if the contractor is not able to complete the road, the roads authority must do the work. Therefore, it could take a long time to complete the housing estate, since obviously the roads are only partly completed while the construction traffic is using them. On the other hand, severe difficulties could be encountered when the road was being constructed. It would, perhaps, be beneficial to an unworthy contractor who decided that he would not complete the job and wished the local authority to complete it.

I should like to know this. With regard to Clause 16(4), which provides that any dispute between a local authority can go to an arbiter, would the arbiter be enabled to increase the liability of the contractor for the bond under circumstances such as I have tried to describe, or under some other, I agree hypothetical but frequently quite realisable, circumstances?

Lord Cameron of Lochbroom

My Lords, I think there are two matters which arise. The first matter is in relation to the question of the cost of making up a road in the event that construction consent has been granted. Your Lordships will recollect that this is a requirement first of all under Clause 16 and thereafter by way of application under Clause 20. It is anticipated that Clause 20(4), which provides that it shall be a condition of any construction consent that the construction be completed within such a period as the local roads authority may specify in giving consent, will be the basis upon which the local roads authority would of course determine what is the amount of the road bond to be provided under Clause 16(2).

Obviously they will look forward to the period of time which they give in relation to completion of the road as being one of the factors to which they will look in fixing an appropriate sum. I can simply say that where there is a dispute it would be a dispute between the local roads authority and the particular person in regard to the amount which the local roads authority are intending to fix. It would be within those parameters that an arbiter would operate. So far as I can see, that would seem to be a perfectly sensible way in which to proceed in relation to a security by way of a road bond. Your Lordships are well aware that it is for that purpose that the provisions of road bonds have been brought into Clause 16 of the Bill.

Lord Ross of Marnock

My Lords, I do not think the noble and learned Lord the Lord Advocate quite sees the point. We are not arguing about the bond. We are not arguing about what has been fixed by the local authority and the circumstances in which, and the procedure whereby such a deposit may be applied, and so on. We are talking about the actual fact that the local authority is left with an obligation to complete a road and the bond itself may not be sufficient, for all sorts of circumstances. What happens then?

Remember, it may well be that the builder or the person constructing the road has gone bankrupt, so that it is no use going to him. It is a case of going to whoever would own the houses, who normally and probably would have already paid, in the cost of their houses, their share of the construction of that road. Who is going to come to the relief of the local authority in that case, where the bond is not sufficient to meet the cost?

Lord Cameron of Lochbroom

My Lords, my response to that must be this. In the kind of situation which has been postulated by the noble Lord, some construction has already taken place within the period afforded for the construction of the road. As noble Lords will understand, the bond itself is for the full cost of the road before construction. So, in so far as the road has already been constructed, that is expenditure which the local roads authority would not then have to meet. I should have thought that in general terms the balance would probably be fully met out of the road bond provision.

All I can say is that in the unlikely event that there was an excess over and above the road bond provision, as I understand it in such circumstances it would have to be the local roads authority that would meet the difference. However, my submission to your Lordships is that this would be very unlikely. One would contemplate the situation where there had already been a part making-up of the road, and of course the road bond provision is to cover the whole making up of the road. I hope that I have made my sense plain.

Lord Ross of Marnock

My Lords, the noble and learned Lord the Lord Advocate may have made his position or the Government's position about this clear to others; but I am afraid that it is not very clear to us. He says that this is very unlikely to happen. May I tell him that it has happened? May I also tell him that the bond is surely not purely to cover the local authority's liability but the fact that the person constructing the road may not have paid for those who are constructing it on his behalf. He may not have paid for the materials. There are more than the local authority who have the claim upon that bond. So, the fact that some work has been done does not mean to say that it has been paid for. I am sorry that this matter has not been raised at an earlier stage, but it is not the fault of the noble and learned Lord. This is not the noble and learned Lord's Bill.

On Question, Motion agreed to.