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129
The experience of the last Parliament only too plainly shows that there is
little prospect of a Private Member's Bill dealing with the difficulties created
by the definitions of "sewer" and "drain" becoming law without the cooperation
of the responsible Minister of His Majesty's Government.
Drainage By-laws.—A. communication, dated 16th March, 1909, was received
from the Borough of Hampstead drawing attention to an appeal of that
Council (Kershaw r. Brooks) which came before the Divisional Court by way of
Special Case from the decision of Mr. Plowden dismissing certain summonses
issued (1) under the Plan By-laws, and (2) under the Drainage By-laws made
by the London County Council.
The question for decision was as to who was the proper person to be brought
before the Magistrate for infringement of these By-laws. The Council
summoned the responsible person actually carrying out the work, and the
summonses were dismissed by the Magistrate on the ground that they should
have been issued against the person who ordered the work to be done. The
Divisional Court sustained the decision of the Magistrate, with the result that
the hitherto invariable practice of proceeding against the responsible person
who actually carries out the works will be no longer open to the Borough
Councils, but inquiries will have to be entered upon as to who is responsible
for the work being done, i.e., who has given the order.
As the matter was of such serious importance, the Hampstead Borough
Council communicated with the London County Council with a view to the
By-laws being amended so as to validate the practice which has hitherto
existed, and to make it clear, either by an interpretation clause or otherwise,
that a builder or contractor in control of the works shall, in addition to the
existing remedy against the owner, be responsible in cases of breaches of the
above By-laws, and asked this Council to support the action taken.
Your Council concurred in the step taken by the Hampstead Borough
Council and on 16th June, 1909, recommended that the London County Council
be asked to define whose duty it shall be to comply with the By-laws as to the
giving of notice and as to the deposit of drainage plans.
On the 20th October, 1909, a letter was received from the London County
Council, stating that the Council had been in communication with the Local
Government Board as to the desirableness of securing an amendment of the
By-law in order to place upon the builder the responsibility for complying
with the By-laws above mentioned. The Board replied, stating that they
would be prepared to consider the terms of any By-law proposed to meet the
decision referred to, although they were not satisfied that it was necessary to
amend the By-laws, the effect of the decisions in the case of Kershaw r.
Brooks, and in that of Brown v. Edmonton (45 J. P. 553) being to show that
the applicability of the By-law to a particular person must be judged by the
facts in each case.
The London County Council asked to be favoured with the views of this
Council on the opinion expressed by the Local Government Board.
Previous to the decision in the case of Kershaw r. Brooks referred to above,
it was the practice of this Authority to proceed against the builder only as
the responsible person for an infringment of the By-laws in question, and