CHAPTER XVI LEGAL NOTES (Part 1)

CHAPTER XVI LEGAL NOTES Purpose of the Chapter. This chapter is intended to give a general idea of the legal position with regard to sanitary work. It does not profess to give qualified legal opinion upon specific points. Persons who require this should consult the statutes, the Local By-laws or the Regulations concerned. Books written by lawyers on “Public Health Law” or on Model Building By- laws may help still further, but if these fail to elucidate the matter reference should be made to a member of the legal profession for guidance on the matter in hand. Differing Forms of Legal Control. Building and sanitary work may be affected by general statutes, by Local Acts, sometimes (a little) by Common Law, while as regards use of materials, special sizes and types of fitting and arrangement in detail, by Local By-laws. In some cases “orders” or “Regulations” are author- ised by an act of Parliament to provide further detailed control. “Model By-laws” have been referred to quite a lot in the preceding chapters, but these are not actual law. As their name would suggest, they are just a specimen set of by-laws, prepared by the Ministry of Housing and Local Government as a guide to help the local authorities in the compilation of their own local building and drainage by-laws, which, when they have been agreed to in Council, are submitted to the Ministry, and if con- sidered satisfactory, are then “sanctioned” and they become local law. The local by-laws are just as binding on the building owner as statute law, but the penalties for breach are usually much more limited than would be the ease with Statute Law. Statute Law. The law relating to sanitary matters, broadly, is - embodied in Acts of Parliament, the provisions of which are ad- ministered by local government authorities. County and County Borough Councils. The oldest unit of local government in England and Wales is the parish, but the powers and duties of parish councils and parish meetings have been almost wholly transferred by statute to bodies controlling larger areas. It is unnecessary here to trace the course by which our present local government system has been evolved and it is sufficient to say that the existing system is now defined by the Local Government LEGAL NOTES 481 Act, 1933, a consolidating Act, which repealed and re-enacted, with amendments, the provisions of Local Government Acts and other statutes of earlier days. All England and Wales are divided into administrative counties and county boroughs, which are governed by county councils and county borough councils respectively. The administrative coun- ties are not in all cases the same as the geographical counties, for some of the latter are divided into two or more counties for ad- ministrative purposes, whilst the county boroughs are excluded from the counties in which they are to be found in an atlas, and have most of the powers possessed by the administrative counties. Only the larger of our boroughs are county boroughs. The minimum population necessary to justify the elevation of a borough to the status of a county borough was formerly 50,000, but is now 100,000. Boroughs, Urban Districts and Rural Districts. Every adminis- trative county is divided into county districts; these are either boroughs, urban districts or rural districts. The boroughs are those county districts which have been incorporated as boroughs by Royal Charter. The boundaries of counties, boroughs, urban and rural districts can be changed by an order of the Boundary Commission, set up by the Local Government (Boundary Commission) Act, 1945, but any such order made for a county or county borough needs confirmation by Parliament. Little need be said here as to the powers and duties of county councils, but it will not be out of place to mention that they are responsible for the construction and upkeep of all roads in rural districts and of all classified roads in non-county boroughs (i.e. boroughs which are not county boroughs) and in urban districts; also, that they have a considerable measure of control over the county district councils and the power to make those councils perform their duties, the measure of such power being to some extent dependent on the status of the district council—whether it is urban or rural—and upon its population. It is, however, with the county borough councils, borough councils, urban district councils and rural district councils with whom we are most concerned, for it is these bodies who make and administer building and drainage by-laws, provide schemes of main sewerage and sewage disposal, collect and dispose of refuse, cleanse streets, disinfect houses and articles, and take the necessary stepS against persons who cause nuisances of a sanitary nature, These bodies we shall refer to as “‘local authorities”’. 16—D.s, 482 LEGAL NOTES Special Law for London Area. The position in London is some- what different, for the Local Government Act, 1933, does not, generally speaking, apply therein. The Local Government Act, 1888, however—the Act which first established the administrative counties—made a county of London, or rather of such parts of the metropolis as were then built up, whilst the London Government Act, 1899, divided the county into metropolitan boroughs. The City of London is one such borough, but, being of far more ancient origin than either the county or the other boroughs, it has some special privileges and duties. The distribution of duties between the London County Council and the Metropolitan Borough Councils is in some respects different from that in operation elsewhere in England and Wales, for we find that within the County of London it is the county coun- cil who are responsible for main sewerage and sewage disposal, and for making by-laws, whilst the borough councils administer the sanitary and building by-laws and are responsible for street maintenance. Principal Statutes dealing with Sanitary Matters Outside and Inside London. The legislation which deals with streets, buildings and sanitation in the County of London differs from that in force in the remainder of the country. Outside the metropolis all matters relating to streets are to be found in the Public Health Act, 1875, its Amendment Acts of 1890 and 1907, the Public Health Act, 1925, and the Private Street Works Act, 1892. The Public Health Act, 1936, deals with buildings, drains, sewers and sanitation generally. Within London the most important statutes in force are: the London Building Act, 1980, and its Amendment Acts of 1935 and 1989, which deal with building work and the laying out of new streets; the Metropolis Management Act, 1855, and its numerous Amendment Acts (the chief of which is that of 1862), which deal with the making up of streets and similar matters; the Public Health (London) Act, 1986, which deals with drains, sewers and sanitation generally, It is with the two Acts of 1986 that we are most concerned, and it will be found that their provisions are in most respects very similar; there are, however, some important respects in which they differ and these will be noticed in due course. Definition of ‘‘Drain’’. We shall begin with the subject of drains and sewers. In the Public Health Act, 1936, a “drain” is defined as meaning a drain used for the drainage of one building, or of any buildings LEGAL NOTES 488 or yards appurtenant to buildings within the same curtilage. It may be noted that there has been much questioning as to the meaning of the word curtilage; Mr. Macmorran, K.C., in his well- known work on the ‘* Law of Sewers and Drains’’, defined it as the land adjoining a building and which would pass with it, on a conveyance, so far as is necessary and convenient for its use. Definition of ““Sewer”. The definition of “sewer” in the same Act is that it does not include a drain as defined above but, save as aforesaid, it includes all sewers and drains used for the drainage of buildings and yards appurtenant to buildings. It would seem then that, to express the matter more simply, a sewer is a pipe used for the drainage of two or more buildings not in the same curtilage; but it seerns also that it may include pipes used only for the drainage of roads, for the Act does not say that a sewer means sewers and drains used for the drainage of buildings, but that it includes such sewers and drains; it therefore presumably may also include pipes not used for the drainage of buildings and it is clear from certain other sections of the Act that it is intended to do so. Public and Private Sewers. Sewers may be either “public sewers” or “private sewers” under this Act. In effect a “public sewer” is a sewer which vests in (i.e. belongs to) a local authority and a private sewer is one which does not. The question, how- ever, then arises as to what sewers belong to a local authority and the answer to this is by no means simple. The following sewers will belong to a local authority: (a) Sewers which they have constructed at their own expense or have acquired, whether they are situated inside the district of the local authority or not (for it is quite common for urban authorities to construct their sewage-disposal works in an adjoining rural area and to construct an outfall sewer thereto). (b) All sewers constructed to the satisfaction of the local author- ity as private street works, except sewers constructed only for the drainage of roads which will be repairable by the county council. c) All “combined drains” constructed prior to the 1936 Act for the joint drainage of two or more buildings under the provisions of earlier Acts. In this case, however, the local authority can recover the cost of maintenance and repair from the owners of the remises served. (d) All new sewers which the local authority may declare to be vested in them. The Act provides, however, that, if the owner of any such sewer objects to its adoption by the local authority, he may appeal to the Minister of Health, who may allow or disallow the proposal; if he allows it he may direct that compensation shall 484 LEGAL NOTES be paid. Any person who was entitled to use the sewer at the date of its adoption may continue to use it afterwards. A “private sewer” is any sewer which is not a public sewer. It will therefore include: (a) Pipes laid after the commencement of this Act for the joint drainage of two or more buildings, not in the same curtilage. (b) Sewers laid for the development of building estates, not yet adopted by the local authority as public sewers. It should be noted before we pass on that the question of whe- ther a pipe is a public sewer, private sewer or drain does not de- pend in any way upon whether it is placed in public or private property; public sewers can be, and often are, laid in private land, for the local authority has the power to lay a sewer in any land after reasonable notice, whilst the lower ends of private sewers and drains are usually in public streets. In the London Act the definitions are somewhat different; for the term “drain” includes not only a drain used for the drainage of one building, or premises within the same curtilage, but also a drain for draining a group or block of houses by a combined operation under an order of a borough council or their predecessors, whilst a “sewer” means a sewer or drain of any description except a drain as defined above. In London there is no such thing as a private sewer; sewers constructed by the county council, or which belonged to them at the passing of the Act, or which they shall declare to be vested in them, shall belong to the county council, while all other sewers shall belong to the borough council in whose district they are situated. In general the main sewers will vest in the county council and subsidiary sewers in the borough council. Duty of Cleansing and Repair of Drains and Sewers. The importance of these definitions lies, of course, mainly in the fact that the duty of cleansing and repair of any drain or sewer is upon the person or body in whom it is vested. In the provinces (i.e. outside London) it is the duty of every local authority to provide such public sewers as will be necessary for effectually draining their district, and such sewage disposal works as are needed. It should be noted, however, that the Act does not say that the local authority must provide sewers at their own expense in anticipation of future building developments; the normal procedure in estate development is for the owner to lay the sewers which are necessary for estate drainage and for these to be adopted by the local authority as public sewers, either im- mediately after construction or when adopting the street as a public street, after the execution of private street works. It LEGAL NOTES 485 should be noted also that there is no obligation to provide a sewer for every house; isolated houses in rural areas are commonly drained to cesspools. Position in London. Similarly, in London, it is the duty of the borough council to make such sewers as are necessary for draining the borough effectually and for the county council to construct such sewers as are necessary for the main drainage of the county. Where a person proposes to construct a private sewer or drain and the local authority consider that it would be an advantage for it to form part of the general sewerage system of the district, they may require it to be formed of such materials, size, depth, gradient and direction as they may specify. The owner may appeal against the requirements to the Minister of Health and (whether he appeals or not) is entitled to be reimbursed any additional expense to which he is put. No such provision is contained in the London Act, but a borough council may contribute towards expenses incurred by an owner or occupier in constructing a sewer in the borough for the drainage of his premises; presumably they would not do so unless it were of some general use. The local authority (in London or elsewhere) may alter or dis- continue any public sewer, but if any person is thereby deprived of its lawful use he must be provided with a sewer equally effective and the local authority must do such alteration to the drains as is required at their own expense. Every local authority, outside London, shall keep in their offices a map showing the public sewers of their district, distin- guishing between surface water and foul sewers if both are in existence. Petrol and Other Harmful Solids or Liquids. In both Acts there are clauses imposing penalties, on conviction, for putting or pass- ing into sewers solid or liquid matters which might cause obstruc- tion to the flow or cause danger to health. Persons allowing petrol or similar inflammable substances to pass into sewers are similarly liable to penalties. Rights of Adjoining Owners and of Local Authorities. Owners and occupiers of premises are entitled, as a right, to branch their drains and private sewers into the appropriate public sewer, provided they give notice to the authority and comply with their regulations as to the manner of making the connection. Outside London the authority may, if they wish, themselves make the connection at the cost of the owner. In some few cases it may be more convenient to branch a drain or private sewer into a public sewer of an adjoining district; the owner of the drain or private 16* 486 LEGAL NOTES sewer may do this, but the authority who own the public sewer may make a charge, which may be defrayed by the authority of the district in which the premises are situated. Local authorities outside London may, under the Public Health (Drainage of Trade Premises) Act, 1987, impose conditions as to the nature, composi- tion and rate of discharge of trade effluents, and may make by- laws regulating such discharge. Where (in the provinces) plans are deposited for the erection or extension of a building and it is proposed to build over any sewer or drain which is shown on the map of sewers, the authority shall reject the plans unless they are satisfied that they can properly consent; in London any person who knowingly builds over a sewer without consent is liable to penalties. Law Relating to House Drains. The law relating to the provision of house drains differs considerably for London and the provinces. In the provinces, where an owner wishes to erect or extend a building and submits plans in accordance with the by-laws, the authority shall reject the plans if these do not show satisfactory proposals for drainage and drainage cannot in the opinion of the authority be dispensed with. The authority can insist on the drains being connected to a sewer, rather than to a cesspool, if (a) the sewer is at a reasonable level, (b) the intervening ground is land through which the owner is entitled to lay a drain, and (c) the sewer is within 100 feet of the building, or the authority agree to bear the excess of cost due to the distance exceeding 100 feet. Common or Joint Drains. Cases often occur where two or more buildings can be more cheaply drained by a common pipe than by separate drains. The authority will be within their rights if they insist on separate drains, but they can require combined drainage by a private sewer, constructed by the owners or by the authority on their behalf. Where an existing building in the provinces has no satisfactory drains, or the drainage is defective, the authority may require drains to be laid, or such other work done as is necessary to