United Kingdom House of Lords Decisions

Subject_Provisional Order — Public Health — Sewage — Exclusion of Surface Water from Sewers — Separate System of Surface Water Drains.

Provisional Order — Compulsory Acquisition of Land — Erection of Sewage Tank — Proposal to Take Three Acres from a Property Consisting of Four Acres in all — Promoters Held Bound to Take Whole Four Acres if they Took any.

Provisional Order — Sewer — Power to Lay Outfall Pipe in Sea Adjacent to Harbour — Future Extension of Harbour over Site of Proposed Pipe — Demand of Harbour Authority for Obligation to Remove Pipe at Expense of Sewage Authority in the Event of Harbour Extension, Refused. Provisional Order — Local Authority — Main Surface Water Drain — Private Proprietor Desiring Connection at Nearest Available Point — Right of Local Authority to Regulate Point of Connection. Headnote:

This Order was promoted by the Water of Leith Purification Commissioners with a view to getting authority for certain new works, and for amendment in various particulars of their principal Act of Parliament of 1889, which, they stated, had become necessary owing to the increase of population and building along the course of the stream, and the consequent incapacity of their present sewers to cope with the increasing volume of sewage discharged into them.

Up to the year 1864 the stream had been used practically as a common sewer for the population along its course, but at that date an Act of Parliament was obtained by which the sewage of Edinburgh, which formerly flowed into the stream, was taken in a pipe, following generally the line of the stream, and out flowing into the sea at Leith. Owing, however, to the increasing discharge of sewage and mill refuse from the landward districts above Edinburgh, it was found necessary in 1889 to get an Act of Parliament setting up the present Commission, and empowering them to take over the pipe laid in 1864, and, in addition, to lay another pipe along the whole course of the stream from Balerno to the Black Rocks in the sea at Leith. This latter pipe was, at the point where it reached the sea, 9 feet 3 inches by 7 feet 2 inches in size, but the sewage was carried from there for 1800 feet out to sea in a pipe which was only 5 feet in diameter.

The particular objects of this Order were as follows:—(1) To get rid of the difficulty which had arisen owing to doubts as to the true meaning of the expression “flood water,” which by section 49 of the Act of 1889 proprietors in the landward district were prohibited from putting into the Commissioners' sewers, and to authorise the Commission to make a system of surface water drains, distinct from sewers, in the landward district, for carrying off all surface water, and to compel the various proprietors there to make connections therewith, and that at their own expense, so long as the Commissioners' drain was not more than 50 yards distant. (2) To authorise the construction near Coltbridge of two large tanks in connection with the branch sewer draining the Lochrin area of the city, in order to prevent an overflow of sewage into the stream in flood time, which had become common at the point where this branch sewer joined the Commissioners' main sewer. (3) To authorise the construction of a duplicate discharge pipe into the sea at Leith alongside the existing pipe.

The first object of the Order was opposed by four proprietors in the neighbourhood of the stream, who objected ( a) to the double system of drainage proposed, on the ground

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that it would be detrimental to the feuing prospects of their estates, and ( b) to the provision which laid on them the burden of connecting their buildings with the surface drainage system at their own expense. In the course of the proceedings, however, an agreement having been arrived at and a clause adjusted in terms thereof, they ceased to oppose the preamble of the Order.

The second object of the Order was opposed by the trustees of the late John Waddell, proprietors of a piece of ground extending to about 4 acres, of which the promoters proposed to take power to acquire about 3 acres for the purpose of constructing thereon one of the proposed tanks. The objectors contended that the promoters should be bound to take the whole of their ground, as the amenity and general usefulness of the remaining small portion which was not proposed to be taken would be so destroyed by the construction of the tank that it would be unfair to leave it on their hands. It was argued for the promoters that this was a question which ought to be left for the decision of the arbiter, who would have to settle the matter of compensation, and was not a suitable question for the present inquiry.

The third object of the Order was opposed by the Leith Harbour Commissioners, who stated that it would become necessary for them in the immediate future to extend their docks over the site of the existing sewer outfall and the new pipe which the promoters here proposed to lay alongside it. They therefore objected to power being granted for the new work unless it was coupled with an obligation on the promoters that they should remove it or alter its position, at their own expense, if and when the Harbour Commissioners required to use the area for dock purposes.

Argued for the Leith Dock Commissioners—The promoters had fair warning here that if they took the line proposed for their pipe they would encroach on ground which would presently be required for dock extension. In these circumstances the obligation asked was reasonable. A similar obligation was granted in the Birkenhead Water Act, 1907, sec. 52, sub-sec. 7.

Argued for the promoters—The obligation asked for was unprecedented, and should not be granted. The clause referred to in the Birkenhead Water Act was put in by agreement of parties there, and not by Parliament.

After hearing evidence for the promoters and objectors, the Chairman intimated that the Commissioners found the preamble proved, but subject to the insertion of a clause requiring the promoters to take the whole of the property of Mr Waddell's trustees if they took any part of it.

On clauses, the objecting proprietors sought to have a provision inserted which would give an appeal to the Sheriff in any case where the promoters refused to allow a junction with their main surface-water drains to be made at the nearest available point to the subject requiring a connection. Alternatively they asked for a provision that where a junction was necessary, and a demand on the part of the proprietor that it should be made at the nearest available point was not unreasonable, the promoters should, if they elected to have it made further away, be themselves at the expense of the additional piping required. These proposals were objected to by the promoters, who argued that it would be contrary to the practice of Scotland under the Public Health Acts and public policy that the local authority should be in any way fettered as to the places where junctions with their pipes should be made.