"(d) With respect to liability for nuisance, they are of Nuisance. opinion that where the site for a generating station is acquired under compulsory powers, and is specified in the Provisional Order or Special Act, the undertakers should not be subjected to any further liability than that which, according to Lord BLACKBURN (Geddis v. Bann Reservoir, 3 App. Cas. 455),* is imposed by the common law in the case of persons exercising statutory powers and duties. On the other hand, where the site for a generating station is acquired by agreement, they think the undertakers ought to be subject to the liability imposed by the common law. 66 (e) With respect to notices, they think that the existing Notices. practice as to notices to the local authorities and also to owners, lessees, and occupiers of lands proposed to be taken should be followed. "With respect to notices in gazettes and newspapers, they do not suggest any amendment of the existing procedure. "The amendment of the Electric Lighting Acts, necessary to empower the Board of Trade to grant compulsory powers, will, they assume, comprise provisions for notices. and other matters of procedure, for which precedents are found in the Housing of the Working Classes Act, 1890, and in the Light Railways Act, 1896. * Lord BLACKBURN's opinion is in these words: "It is now thoroughly well established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the Legislature has authorised if it be done negligently. And I think that if by a reasonable exercise of the powers either given by statute to the promoters, or which they have at common law, the damage could be prevented, it is, within this rule, negligence not to make such reasonable use of their powers." The substance of the above decision is thus tersely put by LINDLEY, M.R., in Southwark and Vauxhall Water Co. v. Wandsworth Board of Works, [1898] 2 Ch. at p. 608 : "The defendants flooded the plaintiffs' land, and said, in effect, that they could not help it. The answer was that they could help it if they kept a stream into which they poured water free from obstruction by mud, which they could do if they chose." In Rattee v. Norwich Electric Tramways Co. (1902), 18 T. L. R. 562, the Court of Appeal held that although the Company were authorised by Parliament to run their tramways along the public roads and thus to do what otherwise would have been a nuisance it did not free them from the obligation to exercise their statutory powers with care. "There is no pretence for the proposition that, because the company were authorised to run tramcars on the highway, their drivers were exempted from the common law obligation to take reasonable care not to injure persons lawfully using the highway." Per VAUGHAN WILLIAMS, L.J. Where gene- Mains to connect outside generating station with area. Overhead wires. "Question 2. "Subject to the above observations, the Committee are of opinion that compulsory powers for the acquisition of land for a generating station, and lands or easements for pipes and mains and other works to the area of supply, may also properly be given where the proposed site is not within the area of supply. The local authorities for the district or districts in which the site is, and the owners, lessees, and occupiers, should have the same notices and the same locus standi as if that district were the area of supply. Provision also should be made for serving notices to local authorities and owners, etc., of districts or land through whose districts or land mains are to be run from the generating station to the area or areas of supply. "Question 3. "In the case of powers being given for the erection of a generating station outside the area of supply, they think that powers may properly be given* for laying the mains in streets leading from the generating station to the boundaries of the area of supply. In such case the local authority liable to maintain these streets should have the same option of themselves breaking up and reinstating the streets at the undertakers' expense as is now given in the Provisional Orders to local authorities within the area of supply, and should be empowered accordingly. "The Committee are of opinion that while it may be advisable to maintain the veto of local authorities as to the erection of overhead wires, given by section 14 of the Act of 1882, in respect of other electric wires, it is not advisable that in the case of overhead wires for traction purposes the local authority, other than the London County Council and county boroughs, should have an absolute veto. While due weight should be given by the Board of Trade to the representations of local authorities, the Committee think that in the case of wires for purposes of traction it * See post, pp. 61-70, for the practice of Parliament since the date of this Report, where the procedure has been by Bill, and not by provisional order. would be sufficient to give a locus standi to such local "Questions 4-5. 66 over districts of numerous local authorities. "Where sufficient public advantage is shown, powers may Bulk supply be given for the supply of electrical energy over an area including districts of numerous local authorities, and involving plant of exceptional dimensions and high voltage. The Committee further think that undertakings of this character may properly be authorised on conditions differing in some respects from those imposed by and under the existing Acts. "Among the undertakers referred to in the preceding paragraph will be found undertakers supplying energy chiefly in bulk or wholesale to other undertakers, whether local authorities or companies, whose areas of supply are wholly or partly within the area of such bulk or wholesale supplying company, and who distribute the energy so obtained to consumers. by local authorities. As to giving compulsory powers of purchase of undertakings Purchase to local authorities, the Committee, without questioning the policy of Parliament in having given such powers, observe : 66 "First. That when the power of purchase was granted in 1882 and 1888, no such schemes of supplying energy in bulk were contemplated as are now before Parliament. Secondly. That when the power of purchase was thus granted the question then before Parliament was chiefly one of light; whereas the evidence given before the Committee shows that although electric light is at present the predominant feature of the enterprises now before the public and Parliament, the application of electrical energy Electric in the form of power to an infinite variety of other poses is likely to be in the near future the predominant feature and function of these undertakings. 66 pur Thirdly. It does not appear to them that an undertaking supplying energy in bulk at high voltage and in comparatively few mains is as a rule so desirable for the local authority to acquire as a low voltage undertaking with many distributing mains. "The Committee think the provisions of the Electric Lighting Act, 1888, enabling the local authority to purchase an undertaking energy as power. Bulk undertakings and high voltages. Bulk under high voltages takings and -contd. Purchase of undertakings in County of London. Consent of local authority. after a term of years, inapplicable, as a general rule, to the case of an undertaker supplying energy in bulk at high voltage, but there may be special cases where it is desirable that the local authorities should have the right to purchase reserved to them. To meet such cases they suggest that the Board of Trade should have power to insert the purchase clause in the Provisional Order, if the local authorities concerned can, in the opinion of the Board, show good cause for such a course. "It is to be observed that the exemption from liability to compulsory purchase would not prevent local authorities, either alone or in combination with other local authorities, from applying for powers to purchase, but each case would have to be judged on its merits, and such conditions imposed as might be thought fit. "In cases of the exemption from liability to purchase, it would be specially expedient in the interest of the consumers that some kind of sliding scale, as in the case of gas undertakings, should be imposed. "In connection with this question of purchase under section 2 of the Act of 1888, evidence has been given to the effect that with a view to secure in London one and the same time for the execution of the powers, the Board of Trade have in some cases imposed upon undertakers a less term than forty-two years within which they are liable to be purchased. "The Committee suggest that if the full period of forty-two years is not granted, and if a substantially shorter period is imposed by the Board of Trade, the terms of purchase should in each case be reconsidered. "The Committee consider that the provisions of the Electric Lighting Act, 1888, which require the consent of the local authority as a condition precedent to the granting of a Provisional Order, should be amended. In their opinion, the local authority should be entitled to be heard before the Board of Trade, but should not have, so to speak, a provisional veto, only to be dispensed with in special cases by the Board of Trade. outside areas. "With respect to conditions, the Committee think it reason- Supply to able that where a local authority, or company having power to supply light within a certain area of supply, seeks to obtain compulsorily land for a generating station outside that area, it should not be allowed, except where Parliament or the Board of Trade decide otherwise, to supply from that generating station any area outside the area of supply of such authority or company. "With regard to the powers of purchase conferred by section 2 Purchase. of the Act of 1888, they are of opinion that local authorities should be empowered to purchase undertakings partly outside their area of supply on terms agreed upon by the Board of Trade. PROVISIONAL ORDERS. "The ordinary clause which forbids any connection with the Connection earth, except with the approval of the Board of Trade and the with earth. concurrence of the Postmaster-General, should be inserted in every case. "As to protection of telegraphs and telephones the clauses Protection of telegraphs now inserted in Provisional Orders seem to be sufficient in all and teleordinary cases: And regulations to protect the public can be phones. made by the Board of Trade under section 6 of the Act of 1882. "The clauses which protect gas and water pipes have worked Gas and water satisfactorily, and should be continued, but the Committee would pipes. direct attention to the observations of Mr. PREECE as regards the difficulty arising from the working of tramways by trolley wires : His suggestion as to a strong control clause' should be carefully considered. "They are disposed to concur generally with Lord MORLEY Liability of plant to and Sir C. BOYLE in thinking that as compulsory powers are distress. given solely for the benefit of the public, it would be desirable to make some provision against these companies being subject to foreclosure on mortgage, and against their rolling stock and plant being liable to distress." Although no public legislation has been passed since the Compulsory Report of Lord CROSS's Committee to empower the Board of Trade powers and to confer power by provisional order to take land compulsorily, nuisance. |