CHAPTER III.

LAND, WORKS, AND COMPENSATION.

Nature and Importance of Powers.-If we set out to select the most important among the powers commonly vested in public service undertakers, probably our choice ought to fall upon the powers connected with the acquisition of land, and the execution of works, and the making of compensation in connection therewith to interested parties. One singles them out partly because they involve the largest measure of departure from the ordinary law governing persons who are not placed in the position of special privilege accorded to public service undertakers, and partly because they deal with matters which are the most vital to the successful establishment and carrying on of public service undertakings.

Let us take as an example the establishment of a new system of waterworks for the supply of a town with water to be brought by gravitation from an upland source at a distance. The Act giving powers to the undertakers will authorise them to make and maintain the necessary storage reservoir in the hills, the aqueducts to bring the water to the town, a service reservoir to receive the water, and very likely many other works, such as catch-waters, weirs, roads, tramroads, and filtration works, necessary for giving effect to the particular scheme. Power will be given to acquire the necessary lands and rights by agreement with the owners and occupiers and other interested parties; but it is clear that a mere power to agree is insufficient in such a case, firstly because certain parties might refuse to part with their property on any terms whatever, and secondly because certain parties might refuse to part with their property except at an exorbitant price. It is highly detri

mental to the public interest that undertakers should be squeezed into the position of having either to abandon their scheme, or else to yield to extravagant demands on the part of persons whose land forms an essential link in a chain of works, and who are not above using that position as a lever for extracting unduly generous terms from undertakers. Payment of excessive prices for land means an excessive burden of capital expenditure on the undertaking, with corresponding increase of annual charges to be made good at the expense of consumers or shareholders or both. The practice therefore is to give the undertakers compulsory powers to execute the works and enter upon, take and use the lands necessary for the purposes of the undertaking. The works and lands are defined partly by description in the Act, and partly by being shown on plans and sections deposited with the clerks of the peace in the localities concerned, in accordance with parliamentary standing orders relating to Private Bills.

Until the works come to be constructed it is of course impossible to be sure of the exact situation in which each part will require to be placed. In order therefore to ensure a necessary margin for variation of position, and yet to define the position sufficiently to enable interested parties to understand how the exercise of the powers may affect them, limits of deviation are prescribed, within which the actual position of the works may range, but beyond which it must not extend; and outside limits are similarly prescribed for the lands which may be taken by compulsion for the purposes of the works. The deposited plans and sections are accompanied by books of reference describing the owners or reputed owners, lessees or reputed lessees, and occupiers of the lands which may be compulsorily acquired.

In addition to these specific powers for principal works a general power is usually given for construction of works of a minor character subsidiary thereto. A proviso is usually, though not invariably, introduced to the effect that the authorisation of such subsidiary works is not to exonerate the undertakers from any action, indictment, or

other proceeding for nuisance in the event of any nuisance being caused or permitted by them. Sometimes this proviso is applied also to the authorisation of the principal works themselves.

A power is also frequently inserted to enable the undertakers to acquire land by agreement not exceeding a certain limited acreage over and above the land scheduled as liable to be acquired by compulsion.

Keeping to our illustration of a waterworks undertaking, compulsory power would also be given to take the waters which are intended to be abstracted or intercepted for the purpose of the waterworks. This is required in order to prevail over the rights of any parties who might otherwise be legally entitled to prevent such abstraction or interception, it being a common law right of riparian owners on a natural stream to have the water of the stream flow down past their property undiminished in quantity and undeteriorated in quality.

Lands Clauses Acts.-The machinery for carrying into effect the purchase of land is provided for in a group of Acts known as the Lands Clauses Acts, comprising the Lands Clauses Consolidation Act, 1845, and certain Amending Acts, viz. the Lands Clauses Consolidation Act Amendment Act, 1860, the Lands Clauses Consolidation Act, 1869, the Lands Clauses (Umpire) Act, 1883, and the Lands Clauses (Taxation of Costs) Act, 1895. Usually these Acts are expressly incorporated in Acts authorising the acquisition of lands for public service undertakings, although strictly speaking an express incorporation is not essential for securing their application, since the first section of the 1845 Act (the full title of which is "An Act for consolidating in one Act certain provisions usually inserted in Acts authorising the taking of lands for undertakings of a public nature") provides as follows:

"This Act shall apply to every undertaking authorised by any Act which shall hereafter be passed and which shall authorise the purchase or taking of lands for such undertaking, and this Act shall be incorporated with such Act, and all the clauses and provisions of this Act, save so far as they shall be expressly

varied or excepted by any such Act, shall apply to the undertaking authorised thereby, so far as the same shall be applicable to such undertaking, and shall, as well as the clauses and provisions of every other Act which shall be incorporated with such Act, form part of such Act, and be construed together therewith as forming one Act."

In respect of land authorised to be acquired compulsorily by any Government Department or any local or public authority under any statute (whether previously or subsequently passed) the Acquisition of Land (Assessment of Compensation) Act, 1919, with which we shall deal later, makes some important alterations in the procedure for determining disputed questions of compensation and the basis of assessment which would otherwise apply under the Lands Clauses Acts. It is well to bear this in mind before starting off to consider, as we must now do, some of the principal features in the code of law contained in the provisions of the Lands Clauses Acts and the judicial decisions under which they have been interpreted.

It may be useful, as a preliminary, to set out the special meanings which, by section 2 of the Lands Clauses Consolidation Act, 1845, are attached to certain expressions where used in that Act. Section 2 reads as follows :—

"The expression 'the Special Act' used in this Act shall be construed to mean any Act which shall be hereafter passed which shall authorise the taking of lands for the undertaking to which the same relates, and with which this Act shall be so incorporated as aforesaid; and the word 'prescribed' used in this Act in reference to any matter herein stated shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word shall occur shall be construed as if instead of the word 'prescribed' the expression 'prescribed for that purpose in the special Act' had been used; and the expression' the works' or the undertaking shall mean the works or undertaking of whatever nature which shall by the special Act be authorised to be executed; and the expression the promoters of the undertaking' shall mean the parties, whether company, undertakers, commissioners, trustees, corporations, or private persons, by the special Act empowered to execute such works or undertaking."

The sections of the 1845 Act are divided into several

groups, each preceded by introductory words roughly indicating their scope, and section 5 provides that the sections grouped under any such set of introductory words may be incorporated by themselves in a special Act.

Sections 6 to 15 concern the purchase of lands by agreement; sections 16 to 68 the purchase and taking of lands otherwise than by agreement; sections 69 to 80 the purchase-money or compensation coming to parties having limited interests, or prevented from treating, or not making title; sections 81 to 83 the conveyances of lands; sections 84 to 92 the entry upon lands by the promoters of the undertaking; sections 93 and 94 small portions of intersected land; sections 95 to 98 copyhold lands; sections 99 to 107 any such lands being common or waste lands; sections 108 to 114 lands subject to mortgage; sections 115 to 118 lands charged with any rent-service, rent-charge or chief or other rent or other payment or incumbrance not hereinbefore provided for; sections 119 to 123 lands subject to leases; sections 124 to 126 interests in lands which by mistake have been omitted to be purchased; sections 127 to 132 lands acquired by the promoters of the undertaking under the provisions of this or the special Act or any Act incorporated therewith but which shall not be required for the purposes thereof; sections 133 to 135 have no introductory words attached to them, but their marginal notes are as follows: Section 133, "Land tax and poor's rate to be made good. Land tax may be redeemed"; section 134, "Service of notices upon promoters"; section 135, "Tender of amends." Sections 136 to 145 concern the recovery of forfeitures, penalties and costs. Sections 146 to 149 have no group heading but relate to "appeals to quarter sessions," "application of penalties in Metropolis,' and "false evidence." Sections 150 and 151 concern the provision to be made for affording access to the special Act by all parties interested. Section 152 provides that the Act shall not extend to Scotland, Scotland having its own Lands Clauses Acts.

I have given these titles in detail so as to familiarise your minds with the various matters that have to be taken into