Skip to main content

Highways (Miscellaneous Provisions) Bill

Volume 645: debated on Monday 24 July 1961

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

Lords Amendments considered.

Clause 6—(Power To Fill In Roadside Ditches, Etc)

Lords Amendment: In page 6, line 8, after "of" insert "service of".

9.50 p.m.

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is purely a drafting Amendment. It will make the wording of Clause 6 (4, b) consistent with that in Clause 10 (1).

Question put and agreed to.

Clause 9—(Supplementary Provisions As To Removal Of Obstructions From Highways)

Lords Amendment: In page 7, line 17, leave out from beginning to "recover" in line 18.

I beg to move, That this House doth agree with the Lords in the said Amendment.

I think it might be convenient, Mr. Speaker, if we were to discuss at the same time the two following Amendments:

In line 19, after "caused" insert "or contributed to".

In line 24, at end insert:

",so however that no such expenses shall be recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction".

That will be all right, but I should indicate that the Amendment in line 24 involves considerations of Privilege.

Paragraph (c) of subsection (1) of Clause 9 as originally passed in this House empowered a highway authority to recover from the owner of an obstruction on the highway the cost of removing it and of fencing it or lighting it if necessary pending its removal unless the obstruction had been caused by some other person.

In another place it was represented that this last exception might be too narrow, because an obstruction might be caused which the owner could neither have prevented nor reasonably have foreseen. An example might be that a tree could be blown down by a strong gale or struck by lightning, or that the earth of a bank by the side of the road might slip by reason of severe floods.

I have been advised that at common law the liability of property owners in respect of damage caused by trees from their property is not absolute. Unless the owner had clearly failed to take reasonable care, he would not be held to be liable. So the Amendment is framed in accordance with this principle. It will except from the higliway authority's right to recover its expenses any case where the owner can show that he took reasonable care to ensure that the thing removed by the authority did not cause or contribute to obstruction. I think that this is a reasonable Amendment for us to accept.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

New Clause A—(Overruling Of Objections To Streets Becoming Maintainable Highways)

Lords Amendment: In page 8, line 17, at end insert Clause A:

"A.—(1) Where by virtue of an objection made in pursuance of section two hundred and two of the principal Act (which provides that where street works have been executed in a private street or part of it, the street works authority may by notice make the street or part a highway maintainable at the public expense unless the owner or a majority of the owners of the street or part object) a private street within the meaning of that section or a part of such a street is prevented from becoming such a highway, the street works authority may, within two months from the expiration of the period mentioned in subsection (1) of that section, apply to a magistrates' court for an order overruling the objection.

(2) If an order overruling the objection is made in pursuance of the foregoing subsection and no appeal against the order is brought within the time limited for such an appeal, the street or part in question shall become a highway maintainable at the public expense on the expiration of that time; and where such an order is made or refused and an appeal, or an appeal arising out of that appeal, is brought against or arises out of the order or refusal, the street or part shall become such a highway on the final determination of the matter in favour of the authority or on the abandonment of the appeal by the objectors.

(3) Any power, however worded, to enlarge the time for appealing or seeking leave to appeal shall not be exercisable for the purposes of this section."

Read a Second time.

I beg to move, as an Amendment to the Lords Amendment, in subsection (3), to leave out from "Any" to "shall", and to insert:

"Notwithstanding anything in any other enactment or provision, for the purposes of this section the time for bringing or seeking leave for any appeal (including an application fer certiorari) shall be two months from the date of the decision or of the conclusion of the proceedings appealed against, unless apart from this subsection the time is less than that period; and any power, however worded, to enlarge any such time".
In accordance with the rules of order, we have to take the Amendment to the Lords Amendment first, but I must explain what the new Clause does, so that I can explain what the Amendment to it seeks to do. The new Clause to which this Amendment relates amends Section 202 of the Highways Act, 1959. Under that Section as it stands, when a private street has been made up, the street works authority—the borough or urban district council, or in a rural district the county council—may by notice declare it to be a highway maintainable at the public expense. But within one month from the notice, the owner of the street or a majority of owners if there are more than one, may object. If such an objection is duly made, the street remains a private street.

What the new Clause does is to give the council the right in case of such objections to bring the matter before the magistrates for decision. The matter having been brought before the courts, the normal machinery of appeal to a higher court automatically becomes effective. We feel that there is a need for securing some finality on the question whether a street is or is not a highway maintainable at the public expense, and that that question should be decided within a reasonable time. Otherwise, we should be faced with the situation where it would be possible, for example, by bringing proceedings by an order of certiorari, which is referred to in the Amendment, for the whole question whether or not the highway had become maintainable at public expense to be reopened, perhaps a number of years even from the time when the local authority itself and everyone else believed that it had become so maintainable.

It was to deal with this problem that subsection (3) was originally inserted, but subsequently it was discovered that this contained some defects, and the purpose of the amended subsection, which is the Amendment I am now moving to the Lords Amendment, would be to remedy these defects. It is a very complicated situation, but I have looked at it very carefully, and I feel quite satisfied that it is something we ought to do.

As the Parliamentary Secretary has said, this is a complicated matter, and I am not sure that the House has entirely understood the effect of the Amendment which is now proposed. I myself have not understood the hon. Gentleman's reference to certiorari. Am I to understand that if his proposed Amendment to the Lords Amendment were carried, that would give persons interested the right to apply for an order of certiorari or that it would take it away?

With the leave of the House, I should like to reply to the point raised by the hon. Member. What the Amendment seeks to do is to create some position of finality, as I said, to the prospect of indefinite appeals going on, and, particularly, the possibility of appeal, if in fact it be an appeal in law, which is doubtful, by way of certiorari. What the Amendment says is that for the purpose of this new Clause, the time for bringing or seeking any leave to appeal must be two months and no longer from the date when the decision was delivered in the proceedings against which the appeal is made.

Perhaps I can best explain it this way. At the moment, it is possible for a highway authority to exhibit a notice under Section 202 saying that the street in question is to be maintainable at the public expense, and, provided there is no objection within a month of that time, then the street becomes maintainable at the public expense. But if during that time there is an objection, that is the end of the matter under the present law. What the present Clause seeks to do is to give the local authority a period of two months—

It being Ten o'clock, the debate stood adjourned.

Proceedings on Government Business exempted, at this day's Sitting, from the provisions of Standing Order No. I (Sittings of the House).—[ Mr. Hay.]

Question again proposed, That the words proposed to be left out stand part of the Lords Amendment.

What the Clause seeks to do is to enable the highway authority to apply for an order overruling the objection by the frontager, and that application must be made within two months of the original one month during which the notice must have been exhibited.

As the House knows, if the application is made by the highway authority to the local magistrates and if a decision adverse to the frontager is delivered—if, in other words, the highway authority wins—it is possible for an appeal to be made by the unsuccessful frontager. That appeal may take a number of forms. It may be a straight appeal to quarter sessions, in which case he has to bring the appeal within fourteen days. It may be by way of case stated to the High Court, in which case, again, fourteen days is the time limit fixed.

We say that a period of two months should be the absolute maximum for any proceedings, whether appeal to quarter sessions, by way of case stated, by certiorari, or any other way. The difficulty we are up against is that there are many different periods fixed, whether for appeal from the justices to quarter sessions, from the High Court to the Court of Appeal, from the Court of Appeal to the House of Lords, and so on. Of course it has always been open for any court to give special leave to appeal, perhaps a long time after the original statutory period has expired.

What we are seeking to do is to reach a position of some finality when it can be said beyond peradventure that the highway has become maintainable at the public expense at a certain date and that no proceedings thereafter can be brought, whether by way of appeal, certiorari, or any other way, which would overturn that decision. That, as briefly as I can put it, is the explanation of this rather complicated Clause and the Amendment to it, which I regret having to bring before the House at this rather late stage. I hope that I have answered the question.

By leave of the House; this is an important matter and the Minister need not apologise for having dealt with it at some length, nor for having referred to the time at which it is brought forward.

As I understand it, under the provisions in the Clause it was proposed that:
"Any power, however worded, to enlarge the time for appealing…shall not be exercisable for the purposes of this section."
The Minister is now proposing something which he says is put forward in the interests of finality. Finality is all very well, but the Minister went on to say that in certain circumstances, whatever any Statute provided, the court could always enlarge the time. I am not sure that that is right. If a Statute provides that any power to enlarge the time shall not be exercisable, I doubt whether the court would have power to enlarge the time.

It has been said over and over again in the courts recently, particularly by Lord Denning, that the power of the courts to investigate and inquire into acts of the Executive under the procedure by way of certiorari is something vital to the interests of the citizen. What I am asking the Minister to reflect upon is whether in his Amendment it is necessary to include the wards
"including an application for certiorari".
I should have thought that on ordinary basic principles that was desirable, and for this reason. I can understand that there is some merit in having finality of appeals in ordinary cases, but the resort by members of the public to the ancient writ of certiorari is at the moment one of the most valued residuary prerogatives open to the subject, enabling him to call in question acts of the Executive which are ultra vires. Members of the bench have said over and over again that it is something which should be jealously guarded, and it is novel to me that in any legislation any attempt should be made to place any time limit on an application for a writ of certiorari, because it is inherent in such an application that an applicant will desire to show, or may desire to show, that a court has exercised, or purported to exercise, jurisdiction where no jurisdiction lies.

As I understand it, hitherto there has been no time limit on any such application, and I am very doubtful about the wisdom of including the words
"including an application for certiorari"
in the Minister's Amendment. I think that a matter of considerable principle is involved, and although the hour is late and the House is not very full, I hope that in the wider interests of the administration of justice the Minister will be good enough to look at this again to see whether it is really necessary.

Question put and negatived.

Proposed words there inserted in the Lords Amendment.

I beg to move, That this House doth agree with the Lords Amendment, as amended.

Having given an explanation of what the new Clause inserted by another place does, I do not think that I need repeat myself now. Perhaps I can say to the hon. Member for Islington, East (Mr. Fletcher) that I have taken note of what he said but I doubt whether the dire consequences he fears are likely to come about.

Question put, and agreed to [ Special Entry.]

New Clause B—(Street Works Expenses For Premises Flanking Or Backing On The Street)

Lords Amendment: After words last inserted, insert new Clause B:

"B. In subsection (2) of section two hundred and ten of the principal Act (which empowers the street works authority to bear the whole or a portion of the expenses of any street works which would otherwise be apportioned on or to the owner of any premises of which only the rear or a flank fronts the street) the word ' only ' shall be omitted."

I beg to move, That this House doth agree with the Lords in the said Amendment.

Section 210 (2) of the Highways Act, 1959, enables a street works authority to meet the whole or part of the expense falling on the owner of premises which have only a flank or a rear frontage to the street which is being made up. The Amendment is designed to enable the street works authority to make a contribution in the comparatively rare case where, because of the direction of the street being made up, the premises have both a front and a flank facing the street.

It would enable a contribution to be made in respect of the whole frontage, both the front and the flank. The particular case where this is likely to arise—and it is a very rare case in any event—is where a house is on a corner, and where it has therefore a front and a flank frontage on the street which is to be made up. We understand from the local authority associations that there have been some cases of hardship being imposed upon individuals as a result of the present law. It is therefore a very useful alteration to make at this stage.

Question put and agreed to. [ Special Entry.]

Sunday Cinematograph Entertainments

Order made by the Secretary of State for the Home Department, extending Section 1 of the Sunday Entertainments Act, 1932, to the Urban District of Adwickle-Street, [copy laid before the House, 18th July] approved.—[ Mr. Renton.]