12° Julii, 1927.] Powers enlarged so as to provide more efficiently for Storage of Water, the Prevention of Floods, and the Discharge of other Functions appertaining to such Boards; and to report to the House." So the ambit of that Inquiry was really very much the ambit of the whole general question. It is interesting to see that even in those days, in 1877, and after all that is 50 years ago, this question of more rapid discharge from the high lands, of water due to the formation of roads and to the urbanisation of country districts, was recognised as a feature. Of course one sees it in many places. Perhaps nowhere has it been more noticeable than in the case of the hills in the North of Scotland which were denuded of wood during the War, with the consequence that the farms in the valley below have been inundated with water which formerly used to be held up in the forests, and wherever you interfere with Nature in that way, you almost inevitably have some such consequences, but there can be no doubt that nowadays water which is deposited on the surface of the earth flows off, of course, very much more rapidly, if it falls on an impermeable surface. As you see on the side of a house, when the rain falls the whole of it is down to the gutter in a few minutes running away. On the other hand, when it falls on a piece of ground still in its natural condition, Nature has provided all sorts of vegetation and natural matter for storing it up. Man interferes with that, and that is the result. that The Committee say: "It is evident to the Committee, from the information which has been laid before them, that considerable damage has been caused in various parts of England by the prevalence of floods during the last winter, and that such floods have been more frequent and of longer duration in recent times than formerly. Among the causes which have been assigned for this state of things, the Committee find prominence is given to the very general adoption of the system of subsoil drainage, owing to which a greatly augmented quantity of water is rapidly carried into rivers, and to the deterioration which is constantly taking place in the channels of the rivers themselves, whereby they are rendered inadequate to carry off the drainage of their respective watersheds. The Committee gather from the evidence that if the channels and outfalls of rivers be properly cared for, any water flowing [Continued. not into these rivers from the catchment basins of which they are the outlets, may reasonably be expected to be discharged by them in sufficient time to render unlikely any serious damage to agricultural lands by floods. It is the opinion of several witnesses of experience, that floods of moderate duration are always prejudicial, but, on the contrary, have the effect of improving and fertilising grass lands by the deposit which they bring down, and that in such cases it is mainly when, owing to insufficient arterial drainage, or other causes, flood waters are suffered to stagnate upon the soil for a lengthened period that injurious consequences are found to arise. One of the principal points to which the Committee have directed their attention has been the best means of preserving the channels and outfalls of rivers in such a condition as to suffice for the discharge, with reasonable facility, of the waters flowing into them; and in order to arrive at a judgment upon this point, it has been necessary to inquire at some length into the manner by which the conservancy of rivers is at present regulated." Then I pass over the summary of Statutes and the Committee proceed: "It is generally acknowledged that these Acts have not worked successfully for the prevention of floods; and this seems to be owing partly to defects in the machinery provided for carrying the Acts into execution, and partly to obstructions caused by private legislation. As regards the first of these causes, although very large powers of executing works and of rating have been conferred upon the persons charged with the execution of these general Acts, their duties have only been indicated in a vague and general manner; and it further appears that certain powers are wanting which are essential for the maintenance of an adequate system of drainage. In addition to this, the constitution of either a Commission of Sewers or an elective Drainage Board for any district is not compulsory, so that in many cases districts urgently in need of such bodies are without them. The principle of rating exclusively according to the benefit received is difficult of application, and is frequently found to work unsatisfactorily in practice. Moreover, owing to the existence of several distinct authorities for the course of single river, conflicts have arisen which are fatal to the adoption of any uniform and compre a 12° Julii, 1927.] hensive scheme for the conservancy of the river as a whole, and there is, moreover, an absence of responsibility, which may be held to account in a great measure, for the present neglected state of several important streams." Then I think I may pass to IV: "The Committee find that almost all the witnesses examined by them are of opinion that in order to secure uniformity and completeness of action in dealing with each river, each catchment area should, as a general rule, be placed under a single body of Conservators, who should be responsible for maintaining the river from its source to its outfall in an efficient state, and in this view the Committee entirely concur. With regard, however, to tributary streams, the Committee consider the care of these might in some instances be entrusted to district committees, acting under the general direction of the Conservators; but near the point of junction with the principal stream, they should be under the direct management of the Conservators of the main channel, who should be a representative body, constituted of residents and owners of property within the whole area of the watershed." Then they say some tributaries may be so big as to require a Board of their own. Then I think I may pass on to the passage which is printed on page 52 in Appendix C to the Commissioners' Report. I have the actual text before me; it is the sixth head of their Lordships' Committee Report: "With regard to the principle of assessment which should be adopted in raising the rates which would be required to meet the expenses of conservancy, the Committee find that there is much variance of opinion. The principle introduced by the Statute of Henry VIII, and observed ever since, of taxing in proportion to the benefit conferred in each particular case by the works of conservancy, appears to work unfairly in some instances, and to be incapable of application in others. That of taxing equally all riparian lands included within a certain level seems likewise to be open to objection. They are strongly of opinion that towns and houses should contribute to the rates in question. At the same time there does not appear to be any injustice in rating uplands to the maintenance of a channel to which they contribute their quota of waters, and the case is still stronger with respect to towns which are at present exempt from taxation for this purpose. There is also, 63205 [Continued. as the Committee think, no reasonable objection to the taxation of lands, etc., situated upon tributary streams on account of their being taxed for the conservancy of such streams. Having regard to these considerations, and looking to the extreme difficulty of rating lands according to the benefits derived, the Committee think that the rates should be distributed over the whole area of a watershed, the lands and houses below the flood level being rated at a higher amount than those above it, and other graduations and exceptions being made to meet particular cases. Subject to the above recommendations, the Committee think that the taxation required for drainage purposes should be levied on the basis of rateable value." That is in contradistinction to an acreage rate. Now it is of interest to see that, on an investigation of very much the topic which your Lordship is about to consider here, the question of an equitable distribution of the burden of maintaining the main arterial drainage of a river basin, this Committee, so long as 50 years ago, investigating the whole matter, came to be of opinion that it was a burden of the catchment area, and that the cost of affecting the works necessary to enable the water of that catchment area to get away should be borne by the whole district, not equally throughout the whole district, but that there should still be a recognition of the benefit principle to this extent, that as those whose lands border on the actual protective works and who are in the lower area benefit more immediately and more directly from these works, they should contribute on a higher scale than their neighbours in the upper portions of the course of the river. That; in short, there should be discrimination within the catchment area, but that the catchment area was a unit and should be regarded as a whole. Now may I say this rather by way of preface to the discussion which will necessarily take place upon the point, that the common law of England, if I may venture to state it, and certainly the common law of Scotland, and I think also the law of Rome, was that the lower proprietor is bound to receive the natural water flowing off the lands of the higher proprietor. In short, if your own lands happen to be situated at a lower level than your neighbours, then at law you cannot complain of his sending down to you the water which has fallen upon his B 3 12° Julii, 1927.] land from Heaven, but you can complain and again I think I am on common ground here if the upper proprietor, the person above you, has, by any operations of his on his land interfered with Nature. You are bound to take what Nature gives you, but you are not bound to receive what man imposes upon you and, therefore, if it can be shown that your neighbour has, for example, by concentrating water in a channel, increased the flow and altered the nature of the flow of that water and delivered it to you, not by general percolation over your ground, which may be very beneficial, but delivers it concentrated in a channel, which may be very destructive, then undoubtedly you have redress at law, because you have suffered not from Nature's operations, but you have suffered from an artificial operation of your neighbour which has proved detrimental to you. In considering this question of the River from that point of view, it will be said here, no doubt, that those who are lower down on the course of the River must just take the River as they get it, and if it comes down in flood and inundates their land, so much the worse for them; that you cannot complain of your upland neighbour merely because the stream which has passed through his land is augmented by the higher rainfall in the upper territory and consequently comes down to you in flood and does you damage. But the position is considerably altered. when, in the upper areas, the ordinary course of nature has been interfered with and by agricultural draining, or by the development of towns and construction of roads, the normal flow of water from the higher area has been altered, has been accelerated, and consequently with this result, that the lower ground has to receive the water from the upper ground no longer delivered under natural conditions but delivered with an accelerated discharge and consequently with greater volume coming down at one time. The more you render the upper land impermeable by building upon it or making streets upon it, the more you accelerate the flow off. The more you drain it effectively, the more in turn do you increase the volume of water or accelerate the flow of water to the lower territory. Those who dwell upon the banks of rivers and have knowledge of their history in recent times have observed very considerable alterations in the flow of rivers consequent upon these very conditions. [Continued. Those of us who are interested in fishing may have noticed the change in the character of some rivers due to these causes. When a river has to that extent, or to any extent, become artificial, I should suggest that it is no longer proper for the upper proprietor to plead that he is entirely uninterested in what becomes of the water once it passes his door. If he, by his operations, discharges water in such volume, or at such a pace that it does damage below, and he has contributed to that damage, he has, surely, a responsibility to see that the consequences of his own operations are mitigated by proper protective works, and it is not for the lowlander who receives the water in these altered circumstances to be at the expense, and to be alone at the expense, of protecting himself against an assault to which he would not otherwise have been exposed. That is one of the elements which makes it true to say that whereas in natural conditions the law may regard you as bound to receive what comes down to you from the upper lands, whenever you interfere with Nature, and interfere with Nature presumably for the benefit of the upper region, you cannot disassociate yourself from a measure of responsibility with regard to the ultimate disposal of that water whose natural flow you have interfered with. That affords a very good reason for regarding the catchment area of a great River like the Ouse as really a single entity, and recognising that in this matter of contribution, the upper portion of it cannot be disassociated from the lower although there may well be room for discrimination between the extent of the contribution made from the upper area and the contribution made from the lower area. That diversion, my Lord, which I made at page 18 was really to develop this theme which appears in the Report of their Lordship's Committee of 1877, because it in turn has been adopted by this Commission. They quote certain private Acts, the Lancashire County Council (Drainage) Act, the West Riding of Yorkshire County Council (Drainage) Act, and refer to the Middlesex County Council powers and Surrey County Council powers "in an Act passed this year," 1926, an. the Northern Ireland Bill. Now while i' is true that some of these measures are to this extent helpful, that they recognise that there may be contribution over a large area like a County Council's area to the cost of drainage works in a particular 12° Julii, 1927.] part of the County area, they cannot be quoted by me as precedents for what s proposed in this Bill-direct precedents. I mean. They are only precedents which recognise that the benefit, and consequently the liability arising from the execution of drainage works is not necessarily a thing confined to those whose lands are directly and immediately benefited by their contiguity to the protection. I say that advisedly, because I should not wish it to be thought that these are direct precedents; but if I may give you an example of these Bills, I have here the Lancashire one and I take the liberty to refer to it for a moment. The Laucashire County Council (Drainage) Act. 1921, after indicating in the Preamble that certain areas in the County required the execution of works for their better drainage and protection, and after con stituting the County Council the Drainage Authority, provides in Section 10 for the expenses, and as regards the expenses of administration-I will take it quite shortly-they are spread over the whole County. Then as regards the works to be carried out, the principle there is the levying of an acreage charge on the lands within the drainage area, and levying as if they were County contributions levied for special County purposes "from any township or townships or any portion of a township which will benefit in regard to public health or by the protection and better enjoyment of any high. way, by the execution or maintenance of any drainage works" and so on, a certain rate in the pound. Then here is. a recognition of the general interest of the County, but it is not put in a mandatory form. "In any exceptional case in which the Council consider that the said expenses or a portion of them are or will be incurred in the general interest of the county the Council may in addition to levying any such sum as is referred to in paragraph (B) of sub-section (2) of this section contribute such sum as appears to them equitable be means of a grant out of the county fund of the Council." That, as you see, is not really a direct precedent for a definite catchment area scheme, but it does, on the other hand, recognise it as a premonition of the idea which is in this Commission's Report that there is an element of general interest involved. Of course, there is plainly an interest here which is beyond the merely local interest -I speak of the national interest-or 63205 [Continued. else we should not all be contributing to 11 millions that is to be spent in this particular part of Great Britain. That is a national interest. There is undoubtedly a local and personal interest to the persons whose homes are actually being protected, because they are behind these dykes, but there is an intermediate interest, not so wide as the national interest, not so narrow as the persona! interest; it is the interest of the whole catchment area which is concerned in a way which is different from the Nation and different also from the persons immediately resident on the River in its lower reaches, and it is that principle of recognising that, so to speak, intermediate interest, the catchment area, the geographical interest, which was SO prominent in the Report of 1877, and is now given the approval of that Report of 1926. Accordingly, the principle upon which this Commission resolved was, that the catchment area of the Ouse as a whole being the two million acre area, should all be contributary to the cost of the protective works on the main arterial drainage system of the Ouse, should all be contributory to the disposal of the water which fell in the catchment area, because not a drop of the water that utimately passes through those works into the Wash but has come from some point of the catchment area, and all that water has ultimately to reach one particular orifice and there be discharged, and as the water comes from all those portions of the area, so also the Commission recognise that there should be contribution from the whole area, to what is, after all, a product of the whole. Mr. Riley.] May I, on the question of benefit, ask Council this question, as to whether one is to make it clear that benefit is not regarded as being the best criterion of liability, that nevertheless benefit is a factor in placing the burden and that all sections who are benefiting must come within the scheme. On that point I want to ask you whether there is any provision for the owner, as owner, irrespective of his position as occupier, making a contribution towards the cost? Mr. Macmillan.] Oh yes. The rate which is to be levied in the Ouse Drainage Board District is to be an owner's rate, and in the South Level area-but that will probably be modified-so far as it has to be paid by the occupier it is without prejudice to his right to recover by deduction from the owner when he B 4 12° Julii, 1927.] It is on the owner in so pays his rent. far as it is direct rating, but the other means of contribution is by means of a charge per acre throughout the country, and that would fall on the County ratepayer, the Poor Law Rate, and now the the Act of new General Rate, under 1925. Lord Monk Bretton.] Under the County Rate or the Poor Rate? We are Mr. Macmillan.] Under the County Rate. With reference to the remark that fell from the Member of the Committee, the Commission themselves in the passage I read, Article 53, do not discard the principle of benefit. far from suggesting the doctrine of benefit should be altogether abandoned, but we think some relaxation of the principle should be recognised. That is what is in their minds. The zone of benefit and the character of benefit may very much vary. I would like just to make one comment by way of criticism on the benefit system. It will be applauded, I understand-indeed it is applauded in a number of the Petitions I have had the pleasure of reading-as being a system of law both equitable and admirable. So far from that being the case, the benefit principle, that is to say, making contribution dependent upon benefit, may work out, and in particular instances does work out, into the most fantastic injustices, because once it be established, and indeed it is the existing law that all those who benefit shall contribute, the quantum of benefit is entirely immaterial, and consequently one person who may receive very great benefit and protection does not contribute more pro rata than a person to whom the protection and benefit may be very trivial in value altogether. The criterion of chargeability is benefit, not quantum of benefit, and the charge is not apportionable according as the measure of the benefit received, but once you have benefit then equal charge upon all. You classify your persons who are to pay by the fact that they get benefit of some kind, great or little. Having got that class, the charge is equally levied upon them all. You may have, for example, so fantatsic a case as this, that if you had two properties, one of which consisted of 1,000 acres, and the other consisted of a small holding of one acre, and work was Idone which benefited two acres only, it would benefit the whole of the small holding, but it would only benefit one [Continued. thousandth part of the 1,000 acre preperty, and yet these two would be the contributors to the cost, and the result would be that the owner of the larger property would have to pay upon 1000/1001 of the whole expense, although the benefit he had received was exactly the same as the benefit which the one acre holder received. That would be the result. Consequently you can have the most fantastic results from the application of this principle which is much belauded in the Petitions as being the most equitable principle. But I say further that benefit is not merely a matter of visible benefit. I suggest that in this discussion generally too much attention has been given to direct visible obvious physical benefit, and that there are other forms of benefit which must be taken into account. Let me suggest one which seems to justify the imposition of a County rate which otherwise might seem inequitabe. It is said in the Petitions here with considerable force: Why should the dweller in a remote part of a County have to contribute to protective works upon the Ouse in which he has no, as he conceives, possible interest whatever, and which may be miles and miles away from his property? One answer is this: You would say to such a person: "Are you a County ratepayer?' "Oh, yes," he would answer, "I am in the County." You would next ask him: "Are not you interested in maintaining the valuation of your County?" He would probably say, "I am," and I would say, "For a very good reason are not you, because the larger the valuation of your County, the lesser is your individual contribution," and everyone who has to contribute to the fund produced by local taxation has an interest in seeing that the valuation of the County, or whatever be the Local Government area, is maintained. If the result of these protective works be that a very large area of valuation territory-rateable areain the County is maintained, then there is surely an argument for saying that it is worth your while as a ratepayer to put your hand in your pocket and make some contribution to protective works which protect the valuation of the area in which you are yourself interested as a contributor to the local government expenses. That aspect of it is alluded to in the Report of the Commission and may be regarded as what one may call the insurance aspect of it. |