HL Deb 24 January 1961 vol 227 cc1107-84

2.58 p.m.

Order of the Day for the House to be put into Committee read.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 1 [Construction]:

THE MINISTER OF STATE FOR WELSH AFFAIRS (LORD BRECON)

I beg to move Amendment No. 1, which is a Government Amendment. Clause 1 of the Bill emphasises the continuity of public health legislation by indicating the links between this Bill and earlier Statutes. Parts II, III and V of the Bill, dealing with sanitation and buildings, with the prevention, notification of disease and with trade effluents, are to be construed as one with provision of earlier Public Health Acts on the same subjects. Parts IV and VI of the Bill, although they contain clauses on matters touched on in previous Public Health Acts, are not so closely associated with public health legislation. For this reason they are not integrated with the Public Health Act, 1936, but have applied to them only those sections of that Act as are set out in the table which forms part of subsection (4) of Clause 1.

The purpose of this Amendment is to add Section 341 of the Public Health Act, 1936, to that table and to the sections of that Act which apply to Parts IV and VI of the Bill. As this section already applies to other parts, the effect is that, with the rest of those listed in the table, it will apply to all the operative provi- sions of the Bill. Section 341 of the Public Health Act, 1936, provides that the provisions of that Act—and of this Bill if the Amendment is accepted—shall apply to Crown property if the authority in charge of that property agrees. I beg to move.

Amendment moved—

Page 2, line 15, at end insert— ("341 Power to apply provisions of Act to Crown property").—(Lord Brecon.)

On Question Amendment agreed to.

Clause 1, as amended, agreed to

Clauses 2 to 7 agreed to.

Clause 8 [Advertisement of proposal to relax building regulations]:

THE EARL OF GAINSBOROUGHmoved in subsection (1), after "publish" to insert "at the expense of the applicant". The noble Earl said: The object of this Amendment is to enable a local authority to recover the cost of advertising the application of an applicant who wishes to obtain a relaxation of the bylaws to his benefit. It may be said that the cost would not be high, but in these days the cost of advertising in two or three papers may well amount to not less than five or ten guineas per application, and in a year when these national regulations are more known about and applicants are familiar with the procedure it is thought that the cost may easily amount to £100 or more. It is for that reason that the local authority association of which I have the honour to be a member suggest that this Amendment might be considered by Her Majesty's Government.

Amendment moved—

Page 5, line 28, after "publish" insert "at the expense of the applicant".—(The Earl of Gainsborough.)

LORD SILKIN

I have no objection in principle to this Amendment, but I can conceive cases where it would not be proper to charge the cost of advertising to the applicant. The application may be a perfectly reasonable and proper one, and it may be in the interests of the general public that there should be a relaxation of the by-laws. I fail to see why there should be an absolute rule that in all cases the cost should fall on the applicant. If the mover of the Amendment were willing, I should be perfectly prepared to accept that there should be a discretion on the part of the local authority to recoup the costs of advertising in proper cases, but my own view is that we should not go beyond that and make it an absolute provision.

LORD DERWENT

While I agree with what the noble Lord, Lord Silkin has said. I wonder whether if a discretion were given to the local authority, they would ever find against themselves.

THE EARL OF GAINSBOROUGH

In spite of what the noble Lord who spoke last has said, as a member of a local authority I know that in fact discretion is exercised on many occasions, and I think there would be little objection, if Her Majesty's Government were prepared to consider the Amendment, to its being drafted in those terms. I should be glad to hear the noble Lord's comments.

LORD BRECON

I think I had better explain that at present Section 63 of the Public Health Act, 1936, leaves it wholly to the local authority to decide whether to apply for the Minister's consent to a relaxation, and no expenses of advertising are incurred until the local authority have applied for his consent. The section does not require the developer to reimburse the local authority for the expenses of advertisement. Perhaps that was because the expenses could be incurred only as the result of a positive initiative taken by the local authority themselves.

The Bill repeals Section 63, and under Clause 6 it will in future be for the developer to set the wheels in motion by applying to the local authority if he thinks there are grounds for a relaxation in a particular case. This may lead to expenses on advertisement being incurred under Clause 8 without the local authority having taken the initiative, and in these changed circumstances it seems reasonable that these expenses should fall on the developer. It is, after all, the developer who will benefit if the requirements of the building regulations are eventually relaxed in his favour.

Having heard what has been said, I think I can say that the Government find the Amendment acceptable in principle. After what other noble Lords have said, I am prepared to have another look at it, if the noble Earl, Lord Gainsborough, is willing to withdraw it now, to see whether we can find suitable words to meet his views and those of other noble Lords.

THE EARL OF GAINSBOROUGH

I am much obliged, and in view of what the noble Lord has said I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 agreed to.

Clause 10 [Minor Amendments]:

LORD AMULREE moved, in subsection (2), to leave out five weeks "and insert "two months". The noble Lord said: Subsection (2) of Clause 10 provides that there shall be an overall period of at least five weeks in which a local authority must come to a decision on the passing or rejecting of plans. Under the earlier Act the period was four weeks. The purpose of the Amendment is to extend the period of five weeks to two months, and the reason for that is that in the majority of cases where plans are submitted on building by-laws simultaneous application is made for planning approval under the Town and Country Planning Act, 1947. Under this Act a period of two months is prescribed for the rejection or approval of the application, and I suggest that it would be both sensible and realistic to make the periods the same for both statutory codes.

In addition to the conformity this would bring to the methods of dealing with the two types of application which must be made jointly, the Amendment would enable local authorities dealing with applications for the approval of plans tinder the building regulations to give some complicated applications really proper scrutiny. Straightforward applications would be dealt with in the usual way as a simple application for planning permission and in such cases no additional delay need be expected. The overall effect of the Amendment would be to remove what appears to many lay members of the public an anomaly for which no reasonable explanation can be given. I trust that the Government will take a favourable view of the Amendment. I beg to move.

Amendment moved—

Page 6, line 39, leave out ("five weeks") and insert ("two months").—(Lord Amulree.)

LORD BRECON

I appreciate very much what the noble Lord seeks to do by this Amendment, but Section 64 (4) of the Public Health Act, 1936, provides that the prescribed statutory period within which local authorities are required to give notice of the passing or rejection of building by-law plans shall he one month, with a possible extension to five weeks in the case of plans submitted less than three days before the meeting of an authority that meets only once a month. Clause 10 (2) is to be read with the repeal, effected by Clause 79 (3) and Part I of the Fourth Schedule, of Section 64 (4). The effect is to prescribe a maximum period of five weeks in every case.

The reason for this change is a technical one. Variations in the prescribed period are acceptable when they are expressly incorporated in building bylaws made locally by the local authorities concerned, but it would not be admissible for the prescribed period within which action must be taken under centrally made regulations to vary in accordance with the changing administrative practice of local authorities. The solution adopted in the Bill is to specify a period of five weeks as the maximum in all cases, since it would not, of course, be practicable to require local authorities to meet oftener than once a month.

The Amendment seeks to extend the period to eight weeks in all cases. The Minister has no evidence that the present four-week period (five weeks in some cases) has caused any general difficulty, although it may well be that when complicated and detailed calculations of steel or ferro-concrete work, for example, have to be checked there may be some difficulty in getting the work done in time in local authority offices. A general extension to eight weeks would, on the other hand, inevitably have some tendency to slow down the rate at which architects, engineers and builders could get going on the site. This would be a substantial disadvantage and would need very careful consideration. The scope of those provisions of the Bill relating to building control is limited to the replacement of building by-laws by building regulations, alterations in the relaxation procedure and amendments directly consequential thereon. The extension of the period to five weeks in all cases is, as already explained, a necessary technical consequential of the replacement of by-laws by regulations. To go further and to substitute a period of eight weeks would, quite apart from the practical difficulties that might be caused, be amending the present system of building control in a matter falling outside the restricted objectives of the building provisions of the Bill. For those reasons, I am afraid that the Government are unable to accept this Amendment.

LORD AMULREE

I should like to thank the noble Lord for his full reply to my Amendment. I quite appreciate the point of view of the Government, and I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 agreed to.

3.12 p.m.

LORD BRECON moved, after Clause 11 to insert the following new clause:

Contribution to cost of sewering highway

"—(1) Where a local authority—

  1. (a) resolve to construct a sewer in a street or part of a street which is a highway maintainable at the public expense, and
  2. (b) include in the resolution a declaration that the construction of the sewer will, in the opinion of the local authority, increase the value of premises fronting the street or that part of the street,
the provisions of this section shall have effect as respects the recovery by the local authority of payments from the owners of those premises in respect of the construction of the sewer.

(2) A notice of any such resolution shall be published by the local authority in a local newspaper circulating in their district; and the resolution shall come into operation for the purposes of this section on the date of the publication.

(3) This section shall not authorise the recovery of any payment in respect of any sewer if the construction of the sewer is not complete at the expiration of the period of two years beginning with the date on which the resolution concerning the sewer comes into operation.

(4) This section shall not apply to any street or part of a street if at any time before the construction of the sewer there was in that street or part of a street a public sewer into which foul water could he discharged by virtue of section thirty-four of the Public Health Act, 1936 (which relates to the connection of premises with public sewers).

(5) Subject to the provisions of this section, a payment shall be recoverable in respect of any premises fronting the street or part of the street in which the sewer is constructed—

  1. (a) if a building is erected on those premises after the date on which the resolution comes into operation, and
  2. (b) if that building is connected with the sewer for the purpose of discharging foul water.

(6) Subject to the provisions of this section, the amount of the payment in respect of any premises shall be one-half of —

  1. (a) the actual cost per yard of the sewer constructed in the street or part of the street, or
  2. (b) the estimated cost per yard of a sewer having an internal diameter of nine inches constructed in the street or part of the street at a depth of seven feet.
whichever is the less, multiplied by the extent in yards of the frontage to the street or part of the street of those premises.

(7) If a payment has become recoverable under this section by reference to any length of frontage, no further payment shall be recoverable by reference to that length of frontage.

(8) The local authority may, on the application of the owner of any premises in respect of which a payment is recoverable under this section, remit any part of that payment on the ground that by reason of the extent of the frontage of those premises the amount of the payment is disproportionate to the benefit received by those premises from the construction of the sewer; and if the owner if dissatisfied with the decision of the local authority upon his application, or if the local authority do not within one month of his application give him notice of their decision, he may appeal to a magistrates' court, and that court may direct that any part of the payment be remitted on the said ground.

(9) Where any part of a payment has been remitted under the last foregoing subsection in respect of any premises, subsection (7) of this section shall not apply, but any further payment which may be recoverable by reference to the frontage of those premises shall not exceed the amount remitted, and, for the purposes of this subsection, that amount shall be treated as distributed proportionately over the length of that frontage.

(10) This section shall apply to a sewer whether or not the sewer is constructed in the district of the local authority, but shall not authorise the recovery of any payment in respect of any premises situated outside that district.

(11) If a local authority have entered into any agreement (whether before or after the date on which this section comes into force) for the construction of a sewer for the benefit of any premises, this section shall have effect as respects the recovery of any payment in respect of those premises subject to the terms of that agreement.

(12) The provisions of the Schedule (Supplementary provisions concerning sewerage contributions) to this Act shall have effect in relation to this section"

The noble Lord said: This proposed new clause and the two which follow, together with the new Schedule, are linked, and it would perhaps be for the convenience of your Lordships that we should consider them together. They appear to be both complicated and obscure, but the main principles are neither. As with the case of other clauses in the Bill, they are well precedented. Some 300 authorities have powers on the lines of the first new clause (which deals with sewers laid in streets which are repairable at public expense) and nearly 400 have powers on the lines of the second new clause (which deals with sewers laid across land which is later made into a street).

The background to the clauses is this. Under Section 14 of the Public Health Act, 1936, each local authority is under an obligation to provide such public sewers as are needed for the effectual drainage of its district. This duty is related to the existing buildings—the local authority has no duty to lay sewers in anticipation of future development. When an authority lays a sewer, therefore, for the benefit of new development, it usually does so by arrangement with the developer who pays a contribution towards the cost. Contributions may be recovered by the local authority in another type of case also. If the council lays a sewer in a private street which is being made up, the properties fronting on that street may be required to contribute, under provisions affecting private street works which go back to the Public Health Act, 1848, and which are now incorporated in the Highways Act, 1959.

It is not unreasonable that contributions should be obtained in these circumstances. Once a public sewer is available property owners will have the right to connect their premises without charge. Alternative ways of drainage—by cesspool, for instance—will become unnecessary and property values will be increased. But there are other circumstances in which these benefits are reaped by property owners without any obligation to contribute towards the cost of the sewer. No contributions cart he recovered under the general law as it now stands in connection with sewers laid in a street which is a highway maintainable at the public expense or across land which although later made into a street, is not a street at the time the sewer is constructed.

It was to remove this anomalous situation that certain clauses were first incorporated in the Romford Urban District Council Act, 1931. I believe that Romford is now a borough council. The originators of these clauses have achieved a kind of immortality because, in Private Bill circles, these clauses are habitually referred to as "the Romford clauses", though they do not appear in the Model Clauses Handbook in exactly the form in which they first appeared in 1931. Criticisms of the clauses as they first appeared led to their examination by a Joint Committee of the two Houses which sat under the chairmanship of the noble Earl, the late Lord Onslow. Their Report was published in 1936 under the somewhat forbidding title of The Report of the Joint Committee on Public Sewers (Contributions by Frontagers).

That Committee were satisfied that it was reasonable to expect contributions from those who would benefit from the laying of a sewer by a local authority, but went on to say that it was almost impossible to frame a code which would satisfactorily reconcile all interests. They thought that rough justice would have to be the aim. They did not draft clauses to replace the then existing provisions, but laid down certain principles which they thought should be followed. Only three of these need be mentioned here. They suggested, first, that the basis of the apportionment on each frontager should be the extent of his frontage on the highway; secondly, that the cost to be apportioned should not exceed the average cost per lineal yard in the district of providing sewers in private streets, and thirdly, that payments should be recovered only when land is actually developed so that no contributions would be required from the owners of existing buildings. These principles were embodied in subsequent versions of the Romford clauses and on the basis of the new clauses now under discussion, though these clauses have been re-worded to meet the needs of general legislation.

The first new clause—that is, contributions to cost of sewering a highway—deals with the position where a local authority proposes to lay a sewer in a public high-way. It outlines the circumstances in which the recovery provisions are to apply, how the payments are to be calculated and the procedure for recovering them. It will be seen that the provisions dealing with the recovery of contributions apply only where the local authority considers that the construction of the sewer will increase the value of properties and specifically resolves to apply the provision. The sewer must then be laid within two years of the resolution, otherwise no contributions will be payable. Payments are recoverable only as and when new development takes place. Owners of existing buildings will still be able to ask the local authority to remit part of the amount claimed on the ground that it is disproportionate to the benefit he receives; in default of agreement with the local authority he may then appeal to the local magistrates' court. Subsection (6) of this new clause deals with the amount which the property can be called upon to pay. It will be seen that the amount is to be calculated by reference to the lesser of two amounts: that is to say, the actual cost per yard of the sewer laid by the authority, and the estimated cast per yard of a 9-in. sewer at a depth of 7 ft. in the street concerned. This subsection is slightly different from the model clause on this particular aspect, but it will probably not be thought desirable to elaborate on the difference at this stage or to explain the further details contained in the proposed new Schedule. The Schedule provides a right of appeal against the council's assessment of these amounts.

The second new clause applies very similar provisions to the case where a local authority has constructed a sewer in land which subsequently becomes a street. Again the local authority must pass a resolution declaring that the construction of the sewer has enhanced the value of land fronting the street. The recovery provisions of the first clause will then apply and there will be the same rights of appeal both against the local authority's assessments of cost and against their refusal to remit part of the amount otherwise payable as and when frontages are developed.

Finally there is the third new clause. For purposes of general legislation this has been based more on Section 209 of the Highways Act, 1959, than on the model clause, but the aim is identical: to prevent property owners from avoiding the payment of a contribution by selling a narrow strip of frontage. The clause empowers a magistrates' court to make an order where it is satisfied that this manœuvre has been carried out in order to evade liability. I beg to move.

Amendment moved—

After Clause 11 insert the said new clause. —(Lord Brecon.)

LORD SILKIN

I find myself in some difficulty about this new clause, as I imagine will many other noble Lords in the Committee. My difficulty is that I saw this new clause for the first time only last night. It may be my fault. I do not know when it was circulated, but I have been abroad and came back only last night in time for to-day's sitting. While I have no objection in principle to the three new clauses on the Marshalled List, I have considerable apprehensions about the details and should have liked to consider putting down a number of Amendments to them. Perhaps the most satisfactory course would have been for these clauses to be recommitted so as to make it possible to put down Amendments to them. I am not very familiar with the procedure, but I am sure that that would have been more satisfactory to the Committe, than having to deal with them to-day in a very broad way.

Having said that, I should like now to outline some of the difficulties that I see on a first reading of the new clauses. The first is that everything turns on the declaration by the local authority that in their opinion the value of the premises forming the street, or that part of the street on which it is proposed to provide a sewer, will be enhanced. That is purely a matter of opinion and valuation. In most cases the local authority, naturally, will take the view that the sewer would enhance the value of the property, although that is not necessarily the case. It may be that many properties are to-day functioning quite happily with cesspools, their occupants being almost unaware of the existence of the cesspools. I myself live in such a house in the country, and I have no inconvenience from it. I have not even the knowledge that there is a cesspool there unless I go and look at it.

For all practical purposes, I cannot believe that if a sewer were provided where I am now living in the country—and this position applies to many other people—it would to any extent enhance the value of my premises. I do not believe that it would, but I can quite understand a local authority thinking that it would, and taking action on that basis. There is, of course, no appeal against that decision. I speak subject to correction: it may be that somewhere, tucked away under some provision of the 1936 Act, which I have not been able to study, there is some provision for an appeal. But I doubt it. The local authority have merely to pass a resolution that the value of a person's property will be enhanced by the provision of this sewer and thereupon, automatically, the owner of the property is called upon to make a contribution. I feel that there ought to be some provision by which an owner can challenge the decision of the local authority, the ipse dixit that his property will be enhanced by the provision of the sewer. Moreover, there is nothing in the Bill which deals with the extent of the enhancement. Supposing the value of the property is enhanced by £100 but the cost which is to be levied on the owner will be £500 (I take hypothetical figures), would it not be unreasonable to expect the owner to pay that amount, or even one-half of it, as the Bill provides? These are points which I am sure, merit further consideration in this new clause.

There is one other point. I found the noble Lord's explanation of the Bill a little difficult. That was not his fault, because it is a complicated subject; but I understood him to say that this did not apply to existing property. If he will look at the beginning of the first new clause he will see that it appears implicit that the premises are not in existence because the local authority have to: include in the resolution a declaration that the construction of the sewer will, in the opinion of the local authority, increase the value of premises fronting the street or that part of the street, Thereupon they are entitled to make a levy. But if the provision does not apply to existing premises how is it possible for a local authority to make a levy based on the frontage, as the clause later provides? Moreover, subsection (8) of the new clause provides that the local authority may remit any part of the amount simply "by reason of the extent of the frontage" of the premises. I find it a little difficult to make out what that means. Would that apply because there is a big frontage, or because there is a small one? On what grounds would the local authority have power to remit the charge against the owner of the premises who, according to the statement of the noble Lord in explaining the Bill, is not going to be liable at all?

I do not want to weary the Committee by going through this clause, which is a very long one; and the same applies to the next two clauses. If the noble Lord could devise some machinery by which we could discuss these clauses and put down Amendments to them, not on the Report stage but in some other way, I believe that would be generally more convenient to the Committee than merely trying to discuss these provisions to-day and passing them, leaving Amendments to be put down at the Report stage.

3.27 p.m.

LORD MESTON

May I ask the noble Lord, Lord Brecon, whether he can give any indication of the cost per yard of making a sewer? I ask that question advisedly, because Parliament passes these Acts of Parliament while having no conception of the terrific burden that is being cast upon owners and occupiers of property. Take, for example, the cost of making up of streets under the Codes of 1892 or 1875, as contained in Part IX of the Highways Act, 1959. That may be £5 per foot. I know of somebody living near me who is faced with a probable bill of £400. I know somebody in Marlow—and I expect all your Lordships know beautiful Marlow—who is faced with a bill of £1,200 in respect of making up the street in front of his property. I understand that the laying of a sewer is an improvement and not a repair. Someone told me that one could get round the difficulty by calling it "rehabilitation", but I am not sure whether the Inland Revenue accept that term. As this is an improvement and not a repair, I presume that one can make no claim for relief under Schedule A in respect of the cost of laying a sewer fronting one's premises. While your Lordships' House has no concern with financial matters, I would ask the noble Lord, Lord Brecon, if he would consult his right honourable and learned friend the Chancellor of the Exchequer on this point and ascertain whether any kind of relief can be given to owners of property who have to pay what undoubtedly will be a very heavy charge.

EARL WINTERTON

I find myself in considerable sympathy with the noble Lord on the front Opposition Bench, who, incidentally, is a neighbour of mine. I am in the same position as him, with this exception: that as my house does not front a main road I shall not come under the clause. And, like him, I have my own arrangements for dealing with sewage. I think he has raised, as the noble Lord sitting on this side of the House has, a very important point. I hope that it will not be considered outside the ambit of this Amendment if I say (and I think that probably my view is shared by other noble Lords) that I am always hesitant about legislation which places greater powers in the hands of local authorities, for this reason. Without saying anything against rural district councils, for example, the fact is that they are burdened with an amount of authority over the general public which they have not the expert knowledge for their clerk properly to exercise. Every Bill increases their powers. I would ask that full consideration should be given to the points raised by the two noble Lords.

LORD BRECON

I should like to explain that these new clauses were available before Christmas. But I agree with the noble Lord, Lord Silkin, that they are difficult clauses, and I am sorry that they were not included in the Bill originally. But there were particular reasons why my right honourable friend was unable to put them in at that time.

LORD SILKIN

The noble Lord says that they were available and I would not dispute it. But available to whom, and how?

LORD BRECON

They were in the Printed Paper Office.

LORD SILKIN

They certainly were not available to me before I left this country on, I think, January 6. I found them when I got back. I daresay that other noble Lords were in the same position—we take holidays sometimes. They were certainly not available to me before that date.

LORD BRECON

I understand that they were available in the Printed Paper Office before Christmas. I agree that people go away, but that does not help us in our position here at the moment. However, I think it can be regarded that if a sewer is put into a particular area it increases the value of the property. One may argue about how much that value may be. Like the noble Lord, I have a cesspool which I never have to worry about at all; and I believe that cesspools are extremely good under certain conditions. On the other hand, I think one must admit that if a sewer is put in there is an increase in the value of the property.

A NOBLE LORD

Not if it is rent-restricted.

LORD BRECON

It may be restricted; it may be restricted in that way. The noble Lord, Lord Silkin, asked about the existing property. No charge can be made upon existing property; it is only new buildings that are affected. The difficulty is that very often sewers are put across fields to a new development where an agreement is made with a new developer to share the cost of the sewer. Somebody develops that line of sewer because it is there, and starts to build houses on either side and makes the site into a street. I think it is fair and proper that he should pay some reasonable cost for that development. I was asked by the noble Lord, Lord Meston, the cost per yard. I understand that if one digs to lay a drain 7 feet deep and puts in a 9-inch pipe it will cost between 20s. and 30s. per foot, say £3 a yard. So on a 30-foot frontage the cost would be £30. If houses are built on either side that cost is divided between the two houses, aid it would work out at approximately £1,5 a house, which I think is a reasonable sum to pay to have a sewer in the road immediately outside one's new building; and it is certainly much cheaper than having to build a septic tank.

I think there are safeguards so that there can be appeals against the local authority. I said that the recovery provisions of the first clause will apply, and there will be the same rights of appeal both against local authorities' assessments of costs and against their refusal to admit part of the amount otherwise payable. I hope that the Committee will accept these clauses. If there are particular points that noble Lords would like me to look at for the Report stage, I shall be happy to do so.

THE MARQUESS OF AILSA

I wonder whether the noble Lord who is speaking for the Government could satisfy me on one point. I am faced with the situation that a sewer is to be driven through a private street which I own, in front of existing houses that have been erected, to connect with development. Under this clause would those people whose houses are at present there be liable to pay a contribution towards that sewer or would it be done only in an area of development?

LORD BRECON

It is difficult to give a quick answer to a particular case like this, but if the noble Marquess will let me have the details I will certainly look into the matter and let him have an answer. I should not like to give one "off the cuff".

LORD SILKIN

I should like to return to procedure. I feel, in all the circumstances, that the Committee ought to have an opportunity of having a Committee stage on these clauses, which really constitute a fundamental alteration or, rather, an extension of the Bill. I think it is just not good enough to pass these clauses and to rely upon the opportunity of putting clown Amendments on the Report stage. If these clauses had been in the original Bill, of course we could have considered them carefully and put down our Amendments. We have been deprived of that opportunity. I should be grateful if the noble Lord would sympathetically consider it. I do not know whether the Lord Chairman could help us on this point, but I am sure that there is some machinery by which we could have a Committee stage on these new clauses. That is what I ask the noble Lord to arrange for, if it is within the Order of Procedure of this House.

LORD KILLEARN

I do not often intrude on matters of this kind, but it happens that like many other noble Lords, I have an interest in this particular question, and I should like warmly to support what the noble Lord, Lord Silkin, has just asked for. Many of us would have to look at this matter with some care, including myself.

THE CHAIRMAN OF COMMITTEES

Perhaps it would be convenient if I said at this stage that after the Committee stage it is possible for a Bill to be re-committed or, in the alternative, it is possible for a group of clauses to be re-committed. It is not, of course, for me to say whether that procedure should be adopted or otherwise. I am merely informing the House that it is possible for that to be done.

LORD SILKIN

I am sure that the Committee will be most grateful for that statement; it is very helpful. If the noble Lord, Lord Brecon, could give us an assurance that these particular clauses, and any other new clauses that are controversial, will be re-committed, speaking for myself I should be quite prepared to let them go at this stage.

LORD BRECON

I shall be quite happy to suggest that these matters are considered through the usual channels. But I should like to point out that this particular clause was published on December 20. However, perhaps in the meantime if I give an undertaking that I shall ask the noble Viscount the Leader of the House to have the usual consultations to see whether some such arrangement can be arrived at, that will be satisfactory.

On Question, Amendment agreed to.

LORD BRECON

I beg to move the second new clause.

Amendment moved—

After Clause 11, insert the following new clause:

Contribution to cost of sewer in land subsequently laid out as street

(".—(1) Where a local authority—

  1. (a) have, after the commencement of this Act, constructed a sewer in any land which has after the construction of the sewer been laid out as a street or as part of a street, and
  2. (b) pass a resolution declaring that the construction of the sewer has, in the opinion of the local authority, increased the value 1124 of premises fronting the street or that part of the street,
the provisions of subsections (5) to (9) of the last foregoing section shall have effect as respects the recovery by the local authority of payments from the owners of those premises in respect of the construction of the sewer.

(2) A notice of any such resolution shall be published by the local authority in a local newspaper circulating in their district: and the resolution shall come into operation for the purposes of this section on the date of publication.

(3) Where compensation due to the owner of any land under section two hundred and seventy-eight of the Public Health Act. 1936, in respect of damage sustained by reason of the construction therein of the sewer has been diminished by setting off any sum on account of the enhancement in value of the land by reason aforesaid, no payment shall be recoverable by virtue of this section in respect of any premises forming part of that land.

(4) Subsections (10), (11) and (12) of the last foregoing section shall apply to this section.")—(Lord Brecon.)

LORD HAWKE

May I ask the noble Lord in the Chair at what stage a Motion for the recommittal of these two new clauses has to be moved?

THE CHAIRMAN OF COMMITTEES

In my opinion, not to-day. The procedure, I think, is that the Committee stage to-day proceeds in the normal way. At a later stage, a Motion may be moved in your Lordships' House, that either the whole Bill or one or more clauses be recommitted to a Committee of the Whole House.

LORD SILKIN

May I ask, to clarify the point, whether such a Motion can be moved by any Member of the House?

THE CHAIRMAN OF COMMITTEES

Yes.

On Question, Amendment agreed to.

LORD BRECON

I beg to move this Amendment.

Amendment moved—

After Clause 11, insert the following new clause:

Evasion of liability to contribute under two last foregoing sections

(".—(1) If on a complaint by a local authority it is shown to the satisfaction of a magistrates' court—

  1. (a) that any premises which do not front a street or part of a street have by reason of any transfer of land been severed from any other premises which do so front (whether at the time of the transfer or subsequently), and
    2. 1125
  2. (b) that but for the transfer a payment under either of the two last foregoing sections would be recoverable in respect of the premises so severed, and
  3. (c) that the transfer was intended for the purposes of evading liability to make any such payment,
the court may make an order under this section.

(2) An order under this section may direct that the premises so severed shall be deemed for the purposes of those sections to have a frontage to the street or part of the street of such extent in yards as may be specified in the order.

(3) In this section "transfer" includes any disposal of land whether by way of sale lease, exchange, gift or otherwise; and references to premises and to fronting shall be construed in the same manner as in the two last foregoing sections.")—(Lord Brecon.)

On Question, Amendment agreed to.

Clause 12:

Recovery of cost of maintaining public sewers

12. In the proviso to subsection (1) of section twenty-four of the Public Health Act, 1936 (under which a local authority must. unless in their opinion immediate action is necessary, to give seven days' notice of any work for the maintenance of a sewer which is chargeable to owners of premises served by the sewer), for the words unless in the opinion of the local authority immediate action is necessary, they there shall he substituted the words unless the medical officer of health or public health inspector certifies in writing to the local authority that immediate action is necessary, the local authority".

3.42 p.m.

LORD BURDEN moved, in the new words proposed to be inserted to omit "to the local authority". The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. This Amendment and others in ray name have been put down after a detailed consideration of the Bill by the Association of Public Health Inspectors. In addition, the Association of Municipal Corporations, with the exception of one Amendment, support those which I have put down.

Dealing with the first Amendment, Section 24 of the Public Health Act, 1936, empowers a local authority who have carried out maintenance work on certain lengths of sewer to recover the cost of this work from the owners of the premises served by the sewer. They are, however, required to give the owners seven days' notice of their inten- tion to carry out the work, to quote the words of the 1936 Act, unless in the opinion of the local authority immediate action is necessary". Clause 12 of this Bill, however, proposes to substitute the following: unless the medical officer of health or public health inspector certifies…to the local authority that immediate action is necessary, the local authority", and so on. Undoubtedly, this Amendment to Section 24 of the Public Health Act, 1936, is designed to expedite the execution of urgent works which are necessary and to do away with the necessity for a meeting of the local authority or, if power has been delegated to a committee (say the public health committee), for a meeting of that committee. I take it that that is the intention of the clause, and I think the Minister will agree.

However, there is some doubt as to whether the words as they stand in this Bill might be held to imply that a meeting of the local authority or committee with delegated powers will still be necessary before action can be taken: and it is with the object of clearing up that point, so that, when necessary, immediate action can be taken without having to wait for a meeting of the local authority or committee, that I have put down this Amendment. I know that it is probably somewhat daring to challenge the wording of Parliamentary draftsmen, hut, as a layman looking at the clause as it stands, I must say that doubt exists in my mind. I should be quite happy if the Minister can give us an assurance either that my interpretation or reading is incorrect, or, if he feels that there is some doubt, that the matter will be looked at again. I beg to move.

Amendment moved—

Page 7, line 36, leave out from ("writing") to ("that").—(Lord Burden.)

LORD BRECON

I think that if I read what I have here it will give the answer to the points that the noble Lord, Lord Burden, has raised. It says that this clause is based on model Clause No. 43, which dispenses with the need to give seven days' notice of the work proposed to be done where in the opinion of the medical officer of health or the public health inspector immediate action is necessary. When the Bill was being drafted, it seemed desirable to ensure that this opinion of the medical officer or of the public health inspector should be put into some permanent form, so that it would be available as a record in case of future dispute —

LORD BURDEN

That I can see.

LORD BRECON

—as the cost of the works in these cases may be recovered by the local authority from the owners of the properties served by the sewers which have been repaired. For this reason, Clause 12 in the Bill requires the medical officer or the public health inspector to certify in writing that immediate action is necessary, and the certificate is to be to the local authority, because the only effect of the certificate is to alter the local authority's powers; but this does not mean that action has to wait until the council or committee next meet. Once the certificate has been made and handed to the town clerk or clerk of the council, the requirements of the clause will have been met. Without this certificate they would be able to recover the cost only if advance notice had been given to the property owners under Section 24 of the Public Health Act, 1936. For these reasons, I hope that the noble Lord will withdraw his Amendment.

LORD BURDEN

If the Minister's advisers are quite clear that the legal interpretation is that delivery of a certificate on the lines suggested to the town clerk, or to whoever might be the appropriate officer, will be taken as advising the local authority, then I am quite happy in regard to the matter, and beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14:

Summary power to remedy stopped-up

drains

14.—(I) If it appears to the medical officer of health or public health inspector that on any premises a drain, private sewer, water-closet or soil pipe is stopped up, he may by notice in writing require the owner or occupier of the premises to remedy the defect within forty-eight hours from the service of the notice.

3.49 p.m.

LORD BURDEN moved, in subsection (1), to leave out "forty-eight" and insert "twenty-four". The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. It will be seen that my Amendment seeks to substitute twenty-four hours for forty-eight hours as the period from the service of a notice requiring an owner or occupier to remedy a drain, private sewer, water-closet or soil pipes which are stopped up. I will make two points in connection with this Amendment. The first is that some local authorities have already embodied in local Acts the period of twenty-four hours as that within which action must be taken. The second point is that a period of forty-eight hours is too long when one takes into account the fact that a drain, et cetera, may have been stopped up for some time before it came under the notice of the medical officer of health or the public health inspector. My information is that local authorities who have power to take action after twenty-four hours have in practice found no difficulty at all arising from that period. A longer period seems, in those circumstances, to be a danger to public health, and I suggest that for other sanitary reasons 24 hours might reasonably be adopted as the national standard, seeing the manner in which progressive local authorities have led the way in adopting the 24 hours' period. I beg to move.

Amendment moved—

Page 8, line 5, leave out ("forty-eight") and insert ("twenty-four").—(Lord Burden.)

LORD DYNEVOR

May I say one word on this proposed Amendment? The noble Lord, Lord Burden, proposes his Amendments with such a benevolent air that one hardly likes to question anything he says, but in these days it is often not possible for a private owner to get anybody on a Saturday or a Sunday. We are finding, that the five-day week is being widely introduced, and 48 hours, I should have thought, should be the period stipulated in the Bill. It must be recognised that a stopped-up drain should be remedied as quickly as possible; nevertheless, with the best will in the world, if the drain becomes stopped up at the week-end, it may not be possible to remedy it within 24 hours.

LORD BURDEN

May I answer the noble Lord on that point, after thanking him for his kindly reference? Local authorities are obviously aware of difficulties of that kind, and they are not so overbearing as to want people to go out on a Sunday, let alone the sacred Saturday. In those circumstances, I am sure there is no real difficulty in mind.

LORD SILKIN

I also think that 24 hours is quite unreasonable—I might as well say it about this provision, because I am going to say it later on. The mere fact that it is included in certain Private Bill legislation does not convince me at all. A good many things have slipped through of which I myself would not approve. I think that 24 hours is quite unreasonable, for the reasons given by the noble Lord, Lord Dynevor. If you are going to confer power upon a local authority to take action in default at the expiration of 24 hours, you might as well give them the power to do the job straight away. There is very little one can do within 24 hours. If, as the noble Lord has said, you cannot get a workman, there is nothing very much you can do, especially at week-ends. I think the Bill is better left as it is.

LORD BRECON

The object of Clause 14 is to provide a more expeditious procedure than that already contained in the Public Health Act, 1936, for dealing with cases where a drain, private sewer, water closet or soil pipe is stopped up and urgent action is called for. The clause enables the medical officer of health or the public health inspector to serve a notice on the owner or occupier of the premises requiring him to remedy the defect within 48 hours. If the notice is not complied with, the local authority will themselves be able, under subsection (2) of the clause, to do the necessary work and recover their reasonable expenses. The point at issue is whether the owner or occupier should have as long as 48 hours or whether he should be required to remedy the defect within 24 hours.

This clause is based on model clause No. 46, which allows the owner or occupier 48 hours, and most local Act precedents allow this period rather than 24 hours. It seems unreasonable to prescribe the shorter period because, in effect, it means that the owner or occupier who receives a notice from the local authority must get a builder to come and carry out the necessary works that very day. It is very difficult indeed to believe that this will always be practicable, but it is not unreasonable to expect the owner or occupier to be able to find someone by the following day. I hope that the noble Lord, Lord Burden, will withdraw his Amendment and allow the 48 hours' period to stand.

LORD BURDEN

It is difficult for me to oppose my noble friend Lord Silkin, but I may have to oppose him a little later on, so I am glad he has set the precedent in opposing me this afternoon. Be that as it may, I can see the point so far as shortage of labour is concerned; I can see the point so far as country districts are concerned; but, of course, there is the problem of the towns. However, as the model clause has been quoted, and as the Minister is not prepared to accept my Amendment, I have no alternative, having ventilated what is the considered view of the people concerned, to ask the leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15:

Power to repair drains and private sewers

15.—(1) If it appears to a local authority that a drain or private sewer—

  1. (a) is not sufficiently maintained and kept in good repair, and
  2. (b) can be sufficiently repaired at a cost not exceeding fifty pounds,
the local authority may, after giving not less than seven days' notice to the person or persons concerned, cause the drain or sewer to be repaired, and, subject to the next following subsection, recover the expenses reasonably incurred in so doing, so far as they do not exceed fifty pounds, from the person or pee-sons concerned, in such proportions, if there is more than one such person, as the surveyor may determine:

3.58 p.m.

LORD BURDEN moved, in subsection, (1) after "surveyor" to insert "or public health inspector". The noble Lord said: My reason for moving this Amendment is that the public health inspector is frequently concerned with drainage work, and he should therefore be authorised to stipulate the point where drains should be disconnected. Of course, local authorities generally delegate powers to a committee. Many councils have delegated powers to the public health committee, and when this Bill becomes an Act they will undoubtedly delegate powers to their public health committee.

Taking the dictionary definition of a "surveyor", one might argue that the public health inspector comes within that definition, as he, in the nature of things, would be surveying if the work were allocated to him by his Committee. But the noble Lord, Lord Brecon, will appreciate, and knows as well as I do, that in local government nomenclature a surveyor usually has the connotation "borough engineer and surveyor"; therefore, I cannot depend on the dictionary definition of the word "surveyor". I would respectfully submit that when work has been carried out under the direction of one department—say, the public health department—under the direction and supervision of a public health inspector, it is fair and reasonable that the department should apportion the expenses. There may be instances where, on the initiative of the public health department, the borough engineer carries out the work, and in those circumstances there would obviously be every reason for him to apportion the expenses incurred.

Let me say, here and now, that, so far as the public health inspectors are concerned—and here I apologise to my noble friend Lord Silkin—they have carried out this work where certain powers have been given to local authorities under local Acts. I am sure my noble friend is conversant with the long and detailed training which public health inspectors undergo in the work of the Public Health Examinations Board. They are fully competent to carry out this work. Moreover, the Amendment has the support of the Association of Municipal Corporations who, I need hardly say, are fully conversant with the detailed work of local authorities.

Is it really necessary to put councils in such leading strings and determine by Act of Parliament what particular department should do what is, after all, a matter of routine business? Surely local authorities, so far as their organisation is concerned, must have power to function in what they deem to be the best possible way. In this Amendment I submit no exclusive claim for the public health inspector. Both officers may have a part to play. And if the noble Lord, Lord Brecon, feels difficulty in regard to this Amendment, why not leave it to the local authority to determine? Why not let the local authority make their choice of whether it be the public health inspector or the borough surveyor? I should be quite happy. I make no claim for prior treatment for one or the other. I would not do that, because many borough engineers are close personal friends of mine, and I know their worth. I should be the last to say anything derogatory about their services. But surely, when a particular branch of local government service has undergone long and expensive training and are conversant with what is involved, it is quite wrong to shut them out from doing this work, if the council should desire them to do so. I beg to move.

Amendment moved—

Page 9, line 3, after ("surveyor") insert ("or public health inspector").—(Lord Burden.)

LORD SILKIN

This is not an important Amendment and I do not mind very much if the noble Lord feels inclined to accept it. I should, however, like to point out what my noble friend is asking for. This clause provides that a person in the employ of a local authority should have power to apportion expenses as between one owner and another. That is clearly the function of a surveyor. In my view, it is not within the normal competence of a public health inspector. It involves some knowledge of the cost of providing services, land values and so on, which one would expect a surveyor to have, though not a public health inspector. While I have no objection to having these words in, I think it makes nonsense to require a public health inspector to survey as to the apportionment of charges between one owner and another in respect of any work done by a local authority. Incidentally, the same would apply to my noble friend's next Amendment. I think that in both cases it is quite inappropriate to add the public health inspector. We might just as well add the officer in charge of lunacy, because neither of them would necessarily have any particular knowledge of values.

LORD BURDEN

All I can say to my noble friend is that my experience of local government has been quite as extensive as his, and from my experience I think that it is nonsensical and a bit of lunacy to ask a department to come in and assess work when they have no experience, in any shape or form, of how it has been carried out and would have to go to another department to get all the details. What officer can determine the cost of anything when presented with a completed job? When the work has been carried out under the supervision of one department, they know all that is involved and then it is purely a matter of arithmetic, which does not require a master of lunacy to do: even an office boy could do it.

THE EARL OF GAINSBOROUGH

I do not want to enter into the private argument between noble Lords on my left.

LORD SILKIN

As a matter of correction, it is not a private argument; it is a public one.

THE EARL OF GAINSBOROUGH

I am much obliged to the noble Lord. I want only to say that some local authorities would much prefer that officers were not mentioned, but simply the local authority, because they are the body who have to decide in the end.

LORD BURDEN

May say that I have already indicated that I should be quite happy with a solution of that kind? Let the local authorities determine between my noble friend Lord Silkin and myself as to the officer who would be appropriate to carry out this work. Surely we can trust our local authorities to do their work efficiently without an Act of Parliament to say that Mr. A, and not Mr. B or Mr. C, is to do the job.

LORD BRECON

Perhaps what I have to say will bring agreement to the public disagreement on the other side of the Committee. Clause 15, to which this particular Amendment relates, is designed to supplement Section 39 of the Public Health Act, 1936. The Amendment of the noble Lord, Lord Burden, is the first of a number of Amendments much on the same lines, and perhaps he will bear that in mind while I am giving this reply. The clause enables a local authority to carry out comparatively small jobs of repair work on a defective drain or private sewer and recover the cost without going through the rather elaborate procedure of the Public Health Act, 1936. Where more than one person is concerned, the clause provides that the cost can be recovered from them in such proportions as the surveyor may determine. The noble Lord's Amendment would enable the apportionment to be made by either the surveyor or the public health inspector.

Parliament has always been reluctant in the past to confer powers or place responsibilities upon individual officers of local authorities, on the general grounds that so far as possible the responsibility for any action which is the concern of the authority ought to rest with the elected body itself The Government support that principle and the consequence that follows from it—that individual officers should not be placed in a special statutory position unless there are urgent and inescapable reasons for giving powers to them and not to the authority.

The noble Lord's Amendments to Clauses 15, 16, 23, 26, 31 and 35 all involve a consideration of this principle and the Government feel that there are other clauses in the Bill where the same issue arises and which ought perhaps to be reconsidered in the light of his proposals. In these circumstances, may I ask whether the noble Lord, Lord Burden, would withdraw those Amendments for the time being? If he can agree to do so, then the Government would undertake to examine all those provisions in the Bill which seek to confer powers on named officers, to ensure that all those provisions are necessary and that the right officers have been named.

The Government fully recognise the importance of the work of the public health inspectors and the contribution which they have to make to efficient local government, but it does not follow that they, or, for that matter, any other local authority officer, should be charged with responsibilities that ought properly to rest with the elected local authority. This is an important question, which needs to be gone into with some care, and I hope that the noble Lord, Lord Burden, will feel able to withdraw his Amendment for the moment to enable further consideration to be given to it.

LORD BURDEN

I am obliged and indebted to the noble Lord for that statement. In my closing remarks I indicated that I should be happy if there could be a reconsideration of the point. The noble Lord has given a substantial reason for a re-examination of the matter, and with that assurance I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 15 shall be agreed to?

LORD BURDEN

I should like to put two points to the noble Lord, Lord Brecon, on the Question that this clause stand part. As I read it, the clause gives power to recover the cost where the estimated cost does not exceed £50. It may be that, after the work has been started, unforeseen snags crop up which it would cost more than £50 to rectify. Do I take it that, if that should happen, all that the local authority could recover would be the £50? The second point is this. If there are urgent works which ought to be carried out that would cost over £50, do I take it that the local authority would have power to proceed under Section 39 of the Public Health Act, 1936? I ought to have given the noble Lord notice of these questions, and as he probably has not the answers available now, I should be obliged if he would let me know in regard to them at some later stage.

LORD BRECON

I shall be pleased to let the noble Lord have answers to the questions he has raised on this clause.

Clause 15 agreed to.

Clause 16:

Disconnection of drains

16.— (l) Where any person—

(a) reconstructs in the same or a new position a drain which communicates with a sewer or another drain, or

he shall cause any drains or parts of drains thereby becoming disused or unnecessary to be disconnected and sealed at such points as the surveyor may reasonably require.

(5) This section shall not apply in relation to anything done in the course of the demolition of a building, or of an external part of a building.

4.13 p.m.

LORD BROUGHSHANE moved to add to subsection (1): on or within the boundaries of the premises served thereby.

The noble Lord said: the object of this Amendment is to ensure that no one may be required, for the purpose of sealing all the drains in the circumstances detailed in the clause, to do any work outside the boundaries of his own property. This is in accordance with model clause No. 48 on which this clause is based. With regard to subsection (2) of the clause, it does seem that in certain circumstances the surveyor may still require that a street be broken open outside the boundaries of the owner's property for the purpose of sealing off a drain. This might well involve an owner in heavy expense and he would have no appeal against the surveyor's requirements: indeed, he would incur a penalty in the event of non-compliance. If it be suggested that in some cases it might be difficult to seal off a drain elsewhere than outside the boundaries of a property, it should be said that there is no provision for this in model clause, No. 48, which, so far as I know, has worked satisfactorily and has given rise to no practical difficulties. I beg to move.

LORD HAWKE

Before the noble Lord sits down, could he tell us what model clause No. 48 is?

LORD BROUGHSHANE

I am afraid I have not got it with me.

Amendment moved—

Page 10, line 3, after ("require") insert the said words.—(.Lord Broughshane.)

LORD BRECON

I have not the model clauses here, nor have I had time to look them up. So far as this Amendment is concerned, the object of this clause is to prevent disused and abandoned drains from becoming prejudicial to health. It requires the person who carried out work which results in a drain being put out of use to disconnect and to seal up any disused drain or portion of a drain at such points as the local authority surveyor may reasonably require. The model clause (No. 48) on which this clause is based says that the drain shall be disconnected and sealed at such points on or within the boundaries of the premises served as the surveyor may reasonably require, and the noble Lord seeks to have these words inserted in the Bill. Their purpose is to prevent an owner from being placed under an obligation to carry out works on another person's land, where he may be a trespasser.

The clause of the Bill, as drafted, makes a slight variation in the model clause, though without departing from the intention of the words the noble Lord has in mind. The clause does not require the point of disconnection to be on the owner's own premises; there may be a much more suitable place further along the line of the pipe. If a dead end of a drain is not to become a breeding ground for rats, then it should be sealed off at the point where it joins the sewer from which the rats might otherwise gain access. Subsection (2), however, which the noble Lord, Lord Broughshane, would omit, says that no one shall be required to carry out any work in land outside the premises served by the drain if he has no right to carry out that work. If the best point for this purpose is outside the premises, and if the owner has the right to do the work there, it seems desirable that the drain should be disconnected and sealed there. It is suggested that the Bill achieves the object of the precedents in a more satisfactory way.

I would add that subsection (2) contemplates that a property owner might be required to break open streets in order to seal a disused drain at the point where it connects to the sewer. This could be more expensive than carrying out work within the curtilage of his own land, but the point might be made here that when a property is first connected to the sewer the cost of the work falls on the owner, so prima facie it is not unreasonable that the cost of disconnection should fall on the owner also. For the reasons I have given, I am afraid the Government cannot accept this Amendment.