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78
This equitable arrangement was accepted by all parties as the basis
of their respective liabilities, and so satisfied was everybody with it, that
we find practically identical definitions incorporated in successive statutes
extending over a long period of years. All appears to have gone well
until 1890, when it seems to have occurred to certain owners of property,
or their legal advisers, that these statutory definitions were capable of
being interpreted in such a way as to make it possible for them to cast
upon the local authority the burden of maintaining those drains which
took the drainage of more than one premises, with the few exceptions
which the statute reserves, unless the local authority could show that the
combination was made with the sanction and approval of themselves or
their predecessors. The result has been that in cases where a builder did
what he was by law required to do, viz.,—to give notice, obtain proper
sanction before he started the work, and then to carry the work out in
accordance with the approved plan; the owner remains responsible for
the maintenance of the pipes as a combined drain; but if, as more
frequently happened, the builder gave no notice at all and coupled up
the drainage of more than one house surreptitously, or added to a combined
scheme without further sanction, his assignees are rewarded for his
misdeeds by their ability to require the ratepayers at large to bear the
cost of putting right and keeping such drains in order. In 1895, in one
of the first cases decided upon the point, the late Mr. Justice Wright
said that "the claim is one of grievous injustice to the local authority."
There appeared to be no escape for the local authority, and in the case
of St. Leonard Shoreditch v. Phelan (1890), one of the Judges in his
judgment gave expression to the dictum "once a sewer always a sewer,"
which seemed to make it absolutely impossible for any local authority
to do other than accept the liability. But this course has not commended
itself to the Hampstead Council, and the policy of resisting such claims,
where any grounds could be found for so doing, has been followed with
the most satisfactory financial results; and, moreover, it has been found
that until Parliament finds the time and opportunity to lift this burden
from the rates by legislation, there are remedies which can be, and ought
to be, followed.
In the year under review, it is a matter for congratulation that
every claim that has been made in Hampstead has been successfully
resisted, although I must point out that this has only been done by the
expenditure of a very considerable amount of additional and difficult work
on the part of the staffs of the Legal and Public Health Departments.