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Clause 48—(Liability For Repair Of New Public Paths)

Volume 467: debated on Tuesday 19 July 1949

The text on this page has been created from Hansard archive content, it may contain typographical errors.

Amendment made: in page 37, line 32, leave out subsection (1).—[ Mr. Silkin.]

I beg to move, in page 37, line 39, after "order," to insert:

"being—
  • (a) an agreement or order made by a local authority who are not the highway authority as respects the path in question, or
  • (b) an order made by the Minister under subsection (3) of section forty of this Act where, in relation to the making of a public path order creating the right of way in question, the appropriate authority for the purposes of the said subsection (3) is such a local authority."
  • It may be convenient to the Committee to consider this Amendment and the next four Amendments together. Their combined effect is to provide more effective machinery for dealing with the procedure by which new paths are made up to the necessary standard before they are taken over by the highway authority for maintenance. In particular they deal with a number of circumstances, a rather complicated one of which is where the highway authority and the local authority are the same. They deal also with the case in which a new path is being created by the direction of the Minister. They are purely machinery points.

    Amendment agreed to.

    Further Amendments made: In page 37, line 43, leave out from second "the," to end of line 44, and insert:

    "local authority mentioned in paragraph (a) or (b) of this subsection, as the case may be."

    In page 38, line 15, leave out from first "the," to "to," in line 17, and insert "path shall not be required."

    In Page 38, In line 20, leave out from "the," to "to," in line 21, and insert "path shall not be required."—[ Mr. Silkin.]

    I beg to move, in page 38, line 25, to leave out from the beginning, to "may," in line 26, and to insert:

    "it shall be the duty of the highway authority to carry out any work specified in a certificate under subsection (1) thereof; and where the authority have carried out the work they."

    The hon. Member could not have heard the Minister suggest that this and the previous four Amendments should be taken together. I heard no words of dissent from the Opposition and I took it that that was agreed. Therefore, there is no further opportunity for discussion at this stage.

    Amendment agreed to.

    Further Amendment made: In page 38, line 27, leave out from "authority," to "any," in line 28, and insert:

    "on whom a copy of the certificate was served."—[Mr. Silkin.]

    I beg to move, in page 38, line 39, to leave out subsection (7) and to insert:

    "(7) Where a public path order—
  • (a) is made in compliance with a direction of the Minister under subsection (3) of section forty of this Act and is so made by the local authority who, on the coming into operation of the order, become the highway authority as respects the path in question, or
  • (b) is made by the Minister under the said subsection (3) in a case where, in relation to the making of a public path order creating the right of way in question, the appropriate authority for the purposes of the said subsection (3) is that local authority,
  • the following provisions shall have effect, that is to say:
  • (i) the local authority specified in paragraph (a) or (b) of this subsection, as the case may be, shall survey the path and shall certify what work (if any) appears to them to be necessary to bring the path into a fit condition for use by the public as a footpath or bridleway, as the case may be, and shall furnish the Minister with a copy of the certificate;
  • (ii) if the Minister is not satisfied with a certificate made under the last foregoing paragraph, he shall either cause a local inquiry to be held or shall give to the local authority an opportunity of being heard by a person appointed by him for the purpose and, after considering the report of the person appointed to hold the inquiry or the person so appointed as aforesaid, shall make such order either confirming or varying the certificate as he may think fit; and
  • (iii) subject to the provisions of the last foregoing paragraph, it shall be the duty of the highway authority to carry out the work specified in a certificate made by them under paragraph (i) of this subsection."
  • This provision relates to a case where the Minister has made an order in default of the local authority. The Amendment provides for the carrying out of the necessary work to enable the footpath to be put into a usable condition. It is rather elaborate, but different circumstances arise when the Minister makes an order from when a new path is created at the instance of the local authority, and therefore the Amendment is necessary.

    The whole matter is rather wide, and I should have thought that the various points might have been explained to the Committee, as most hon. Members have had very little time to study what has happened. I ask the Minister to explain particularly what is meant by:

    "if the Minister is not satisfied with a certificate made under the last foregoing paragraph, he shall either cause a local inquiry to be held …"
    In what circumstances would the Minister express dissatisfaction with what was going on?

    The Minister would be dissatisfied with the certificate if the work proposed to be done on that certificate seemed to him to be unsatisfactory for the purpose of providing access for the public along that path.

    That really means that the Minister has the power—which, of course, he has—and obviously, from the tone of that reply, he intends to use his power to interfere as often as he can.

    No, I did not say that. If the hon. Member has carefully studied this, which I quite appreciate he has not, he would realise that we are dealing with the case of a defaulting authority, when the Minister has to step in after a public inquiry. In such a case the defaulting authority might be reluctant to put the footpath into a reasonable state of repair. In those circumstances the certificate might be unsatisfactory, and that is why the Minister must have the right to step in, although no Minister seeks to step in more than is necessary, or to interfere unduly with the functions of the local authority.

    I have got rather further than that; I understand all those points. Many local authorities, however, are very worried about the number of times which local authority work is interfered with by Government Departments. Although I suppose we must accept this, I am not happy about this power of interference.

    As I understand it, the power under this Clause applies only in the case of new footpaths. Are there similar powers of upkeep and repair in the case of existing paths?

    With regard to existing paths, the existing law applies. In my view those powers have, been clarified and to a certain extent strengthened.

    I ask the Minister to consider again the advisability of having powers to repair existing footpaths. There are a good many cases where they have got into a terrible state of disrepair.

    Amendment agreed to.

    I beg to move, in page 38, line 47, at the end, to add:

    "(7) The foregoing provisions of this section shall apply to any public path created by a diversion order with the substitution of references to such an order for references to a public path order and of references to subsection (5) of section forty-four of this Act for references to subsection (3) of section forty thereof."
    This Amendment is designed to bring the procedure for a diversion order into line with that for a public path order for agreement; that is to say similar powers are available here regarding the footpath created as a result of a diversion as for a new path.

    Amendment agreed to.

    Clause, as amended, ordered to stand part of the Bill.