Chapter XXIII: Section 73: of the Towns Improvement Clauses Act 1847 enacts, “When any

opening is made in any pavement or footpath within the limits of the special Act, as an entrance into any vault or cellar, a door or covering shall be made by the occupier[139] of such vault or cellar, of iron, or such other materials, and in such manner as the commissioners direct, and such door or covering shall from time to time be kept in good repair by the occupier of such vault or cellar: and if such occupier do not within a reasonable time make such door or covering, or if he make any such door or covering contrary to the directions of the commissioners, or if he do not keep the same when properly made in good repair, he shall for every such offence be liable to a penalty not exceeding five pounds.”

Besides the penalty, the person negligently leaving the covering in a dangerous condition would be liable to an action for damages at the suit of anyone who had sustained an injury in consequence of the covering being so kept.[140]

There is another clause incorporated in the Public Health Act 1875 from the Towns Police Clauses Act 1847 upon this subject, which is as follows:

“Every person who leaves open any vault or cellar, or the entrance from any street to any cellar or room underground, without a sufficient fence or hand rail, or leaves defective the door, window or other covering of any vault or cellar . . . . shall be liable to a penalty not exceeding 40_s._ for each offence, or in the discretion of the justice before whom he is convicted may be committed to prison, there to remain for a period not exceeding 14 days” (10 & 11 Vic. c. 89, s. 28).

But the former section I have quoted is that upon which the town surveyor generally acts.

In connection with this duty the following is given as a specimen notice:

SIR,

I beg to call your attention to the fact that the door or covering to
the vault or cellar in your occupation, No. Street, is
not in good repair (and is slippery and dangerous to
foot-passengers),[141] you are in consequence liable to a penalty of
5_l._

I must request you will be good enough to have such door or covering
properly repaired and made good in accordance with the construction
required by law, within days from the date hereof, and in the event of
your failing to do so, proceedings will be taken to enforce the
penalty to which you are liable without further notice.

I am, your obedient Servant,
______________________________
_Town Surveyor_.

To _______________

In accordance with the provisions contained in the section of the Towns Improvement Clauses Act 1847 which I have quoted, that the “door or covering shall be made by the occupier of such vault or cellar of iron or such other materials, and in such manner as the commissioners direct,” most towns in this country have prescribed the size and materials of which they shall be made, the size being often limited to 6 feet in length, by 20 inches projection, from the line of plynth of the building, for cellar coverings or pavement lights as they are sometimes called, and 12 inches in diameter for coal plates.

Hayward’s patent hexagonal and semiprismatic pavement lights, however, have obviated the danger of slipping upon this description of covering, and consequently little or no inconvenience is experienced, even if the greater portion of the foot pavement is covered by them.[142]

Coalhole plates should be so firmly fixed as to prevent the possibility of their shifting, even when the rebate of the flag stone into which they are dropped is worn, and also to prevent mischievous persons from raising them.

Here let me state that no person can without the written consent of the urban authority cause “any vault, arch or cellar to be newly built or constructed under the carriageway of any street” (38 & 39 Vic. c. 55, s. 26); but from this section it does not appear illegal to construct a vault, arch or cellar under the footpath, which would generally be the extent to which such constructions would be extended. However, the more general powers contained in section 149 of the same Act, by which all “streets and the pavement stones and other materials thereof” vest in and are under the control of the urban authority, give the necessary powers to prevent the construction of cellars under any portion of the foot-pavement without the consent of the urban authority.

The usual practice adopted is for any person who requires to construct a cellar under the foot-pavement or carriageway of any street, to apply to the urban authority for the necessary permission to do so. In granting the permission, the urban authority call upon the owner of the premises to which the proposed vault or cellar is attached, to enter into an agreement acknowledging that the cellar or vault is only an easement, and agreeing to remove the encroachment whenever called upon by the urban authority to do so.

These agreements and any other similar easements should be kept together in a book, which may be called the “Easement Book,” and indexed in such a manner that a reference can be easily made at any time to any easement that has been granted.

(5.) _Rain-water from Shutes or Down Pipes._--

Water may not be allowed to drip on to the pavements of the streets from the adjoining houses, and the following clause from the Towns Improvement Clauses Act 1847 has been incorporated with the Public Health Act 1875:

“The occupier of every house or building in, adjoining, or near to any street shall, within seven days next after service of an order of the commissioners for that purpose, fit up and keep in good condition a shoot or trough of the whole length of such house or building, and shall connect the same either with a similar shoot on the adjoining house, or with the pipe or trunk to be fixed to the front or side of such building from the roof to the ground, to carry the water from the roof thereof in such a manner that the water from such house or any portico or projection therefrom shall not fall upon the persons passing along the street or flow over the footpath; and in default of compliance with any such order within the period aforesaid, such occupier shall be liable to a penalty not exceeding 40_s._ for every day that he shall so make default” (10 & 11 Vic. c. 34, s. 74).

In many private Town Improvement Acts, the cost of the repair necessary under an order to do so from the urban authority may be deducted by the occupier from the rent payable to the owner of the premises, thus ensuring the work being done more quickly.

The following is a specimen notice to be served upon the occupier to repair or put new shuting to his house:

I beg to give you notice that the eaves, shuting, or projecting
cornice[143] to the house or building No. in your occupation,
is out of repair. A penalty of 40_s._ will be incurred if this
shuting be not repaired within seven days from the date of this notice
(and under the Special Improvement Act the cost of such repair may be
deducted from the rent payable to the owner).[144]

I am, your obedient Servant,

______________________________
_Town Surveyor_.

To _______________

It is a common practice in most towns for the urban authority to provide and fix trunks or troughs across their footpaths into which the down pipes from the rain-water shutes can empty their contents.

(6.) _Blinds or Awnings over Footpaths._--

These may be dealt with as obstructions under sec. 69 of the Towns Improvement Clauses Act 1847, which I have already quoted,[145] but they are more particularly alluded to in the Police Clauses Act 1847 in the following section:

“Every person who . . . places any blind, shade, covering, awning, or other projection over or along any such footway, unless such blind, shade, covering, awning or other projection is 8 feet in height at least in every part thereof from the ground, shall be liable to a penalty not exceeding 40_s._ for each offence, &c.” . . . (10 & 11 Vic. c. 89, s. 28).

Thus legalising the fixing of shop-blinds, &c., provided they are at least 8 feet in height and consequently no obstruction to the traffic.

In order to make the blinds or awnings sufficiently secure where they are of large dimensions, it is very usual for the owner or occupier of the premises to which the blind or awning is to be attached, to seek and obtain the consent of the local authority to fix iron sockets in the kerb of the footpath into which iron or wood standards are inserted for the purpose of supporting the outer part of the blind or awning, and there can be no objection to this practice provided that the work is efficiently performed and to the satisfaction of the town surveyor.

(7.) _Trees overhanging Roadways._--

It used formerly to be considered by road surveyors and others[146] that great injury was caused to roadways by overhanging branches of trees or bushes, which were supposed to exclude the light and air from the roadway and thus damage it, hence powers were given to local authorities, as surveyors of highways, to compel occupiers of premises adjoining the roadways to cut back and prune their trees or hedges in order to prevent this damage. The following being the form of notice usually adopted for this purpose:

To ______________________________

You are hereby required to cut, prune, and trim your hedges adjoining
the highway leading from to and also to cut down, prune, or lop
the branches of trees, bushes and shrubs growing in or near such
hedges and other fences adjoining thereto, in such manner that the
said highway shall not be prejudiced by the shade thereof, and that
the sun and wind may not be excluded therefrom. And you will further
take notice, that if you shall neglect so to do within five days of
the delivery hereof, I shall proceed to have the said hedges, trees,
and bushes cut and pruned, according to the power and provisions of
the various Acts of Parliament relating thereto. And further, that I
shall also proceed to recover from you the penalties in this respect
imposed by the said Acts of Parliament.

Dated this day of

____________________
_Surveyor_.

It is however now very seldom that overhanging branches of trees or hedges cause any damage to the roadways within an urban district, and unless they are an actual obstruction to the traffic, the growth of trees near urban roads and streets should be encouraged; indeed it is now a common practice to plant trees close alongside the roadway, the branches of which must of necessity hang over it, and cause no damage if the roadway is properly formed and attended to.

(8.) _Surface Water from Private Premises running over Footpaths._--

It frequently happens that the rain-water which falls upon a front garden or courtyard finds its way, for want of a sufficient drain, out of the gate and across or along the public footpath, thus causing annoyance to pedestrians even if it does no injury to the path. There does not seem to be any clause in the Public Health Act 1875 to meet this objection, for the section which I have given with reference to rain-water shutes and down pipes (10 & 11 Vic. c. 34, s. 74), does not apply to such cases, as it only refers to water from the “roof or any portico or projection” and not to water falling upon the surface of a garden or courtyard, nor is there anything in the Highways Acts which can be brought to bear upon the subject.

If, however, any injury is caused to the footpath, no doubt the cause of offence may be stopped or the perpetrator prosecuted or indicted in default.

(9.) _Hoardings and Scaffolds._--

When buildings are in course of erection, or repairs are being carried out to them, it is generally necessary that the person engaged in the work should construct either a hoarding or inclosure, or at all events a scaffold, so as to execute the work properly. Upon this point the following clause of the Towns Improvement Clauses Act has been incorporated with the Public Health Act 1875:

“Every person intending to build or take down any building within the limits of the special Act, or to cause the same to be so done, or to alter or repair the outward part of any such building, or to cause the same to be so done, where any street or footway will be obstructed or rendered inconvenient by means of such work, shall, before beginning the same, cause sufficient hoards or fences to be put up in order to separate the building where such works are being carried on from the street, with a convenient platform and handrail if there be room enough, to serve as a footway for passengers, outside of such hoard or fence, and shall continue such hoard or fence with such platform and handrail as aforesaid standing and in good condition, to the satisfaction of the commissioners, during such times as the public safety or convenience requires, and shall, in all cases in which it is necessary in order to prevent accidents, cause the same to be sufficiently lighted during the night.[147] And every such person who fails to put up such fence or hoard or platform with such handrail as aforesaid, or to continue the same respectively standing and in good condition as aforesaid, or who does not, while the said hoard or fence is standing, keep the same sufficiently lighted in the night, or who does not remove the same when directed by the commissioners within a reasonable time afterwards, shall for every such offence be liable to a penalty not exceeding 5_l._, and a further penalty not exceeding 40_s._ for every day while such default is continued” (10 & 11 Vic. c. 34, s. 80).

Hoardings and scaffoldings are now so scientifically erected as to be little or no inconvenience to foot-passengers. Care must, however, be taken to see that in the erection of a hoarding the doors or gates in it shall not open outwards, and the police should be instructed to prevent carts being backed in and left standing across the footpath.

The surveyor must exercise great discretion in the length of time he allows a hoarding to remain; without undue hardship on the builder, he must study at the same time the more important question of the public convenience.

(10.) _Dangerous Buildings._--

This is the last, although by no means the least, of the series of “obstructions” I have enumerated. Here, again, very grave responsibility rests with the surveyor to determine what is a dangerous building, and in what manner it shall be rendered safe and secure, for his opinion is apparently legally conclusive on this matter.

The following is the clause of the Towns Improvement Clauses Act which deals with ruinous or dangerous buildings:

“If any building or wall, or anything affixed thereon, within the limits of the special Act, be deemed by the surveyor of the commissioners to be in a ruinous state and dangerous to passengers or to the occupiers of the neighbouring buildings, such surveyor shall immediately cause a proper hoard or fence to be put up for the protection of passengers,[148] and shall cause notice in writing to be given to the owner of such building or wall, if he be known and resident within the said limits, and shall also cause such notice to be put on the door or other conspicuous part of the said premises, or otherwise to be given to the occupier thereof, if any, requiring such owner or occupier forthwith to take down, secure or repair such building, wall or other thing, as the case shall require. And if such owner or occupier do not begin to repair, take down or secure such building, wall or other thing, within the space of three days after any such notice has been so given or put up as aforesaid, and complete such repairs or taking down or securing as speedily as the nature of the case will admit, the said surveyor may make complaint thereof before two justices to order the owner, or in his default the occupier (if any) of such building, wall, or other thing, to take down, rebuild, repair or otherwise secure, to the satisfaction of such surveyor, the same, or such part thereof as appears to them to be in a dangerous state, within a time to be fixed by such justices. And in case the same be not taken down, repaired, rebuilt or otherwise secured within the time so limited, or if no owner or occupier can be found on whom to serve such order, the commissioners shall with all convenient speed cause all or so much of such building, wall, or other thing as shall be in a ruinous condition and dangerous as aforesaid, to be taken down, repaired, rebuilt or otherwise secured in such manner as shall be requisite, and all the expenses of putting up every such fence, and of taking down, repairing, rebuilding or securing such building, wall or other thing shall be paid by the owner thereof” (10 & 11 Vic. c. 34, s. 75).

Great care must be observed in seeing that the notices are properly prepared and served in accordance with sections 266 and 267 of the Public Health Act 1875, and the town clerk, as the legal adviser of the sanitary authority, should be consulted (in this as in all cases requiring notices) by the surveyor.

It sometimes happens that a tall chimney shaft, wall, or other erection may apparently be perfectly safe, whereas in a high gale of wind it may be blown down.

Many tall chimney shafts rock in an alarming manner in a high wind,[149] but he would be a bold surveyor who would order some of these expensive structures to be pulled down in the face of the opposition he would receive.[150]

A curious case of some difficulty in connection with dangerous buildings has come under my notice, where a house was built with the approval of the urban authority, and after completion and occupation the attention of the surveyor was called to the fact that a large piece of rock at the back of the house, from which the site had been excavated for the purpose of its erection, was in a dangerous condition and likely to fall at any moment and cause great damage to property, or even loss of life. The clerk to the urban authority, when consulted, was of opinion that the surveyor could do nothing in the matter, as the case was not met in any way by the Act.

The following is given as a specimen notice to serve with reference to a dangerous structure:

NOTICE.

_To_ (A) _the Owner of the ruinous and
dangerous_ (B) _under-mentioned and the
occupier thereof._

Whereas a certain (B) situated at within the borough
of , in the county of , is deemed by me, the
undersigned, the surveyor of the mayor, aldermen and burgesses of the
said borough of , acting by the council as the urban sanitary
authority for the same, to be in a ruinous state and dangerous to
passengers or to the occupiers of neighbouring buildings:

Therefore take notice, that you are hereby required, in pursuance of
the provisions in that behalf of the Public Health Act 1875, and the
Towns Improvement Clauses Act 1847, to take down, repair or secure the
said (B).

And that if you do not or if neither of you does begin to take down,
repair, or secure the said (B) within the space of three days
after this notice has been served upon you or put upon the said
premises, and complete such taking down, repairing or securing as
speedily as the nature of the case will admit, I shall cause complaint
thereof to be made before two justices in accordance with the
provisions of the statutes aforesaid.

Dated this day of 18 .

____________________
_Surveyor of the said Urban Sanitary Authority._

A. The name and description of the owner or occupier, or the names,
&c., of both should be here inserted.

B. Building, wall, or anything affixed thereon.

Before closing this chapter upon “Obstructions in Streets” I give the following clause from the “Towns Improvement Clauses Act,” which comes after two other sections of the same Act principally dealing with building materials, rubbish, or holes in streets, and although in this clause the word “building” is used, the section cannot be taken as referring to dangerous buildings, although it may undoubtedly be used where it is required on account of waste land, &c., being left in an unprotected and dangerous state:--

“If any building or hole or any other place near any street be, for want of sufficient repair, protection or inclosure, dangerous to the passengers along such street, the commissioners shall cause the same to be repaired, protected or inclosed so as to prevent danger therefrom; and the expense of such repair, protection or inclosure shall be repaid to the commissioners by the owner of the premises so repaired, protected or inclosed, and shall be recoverable from him as damages” (10 & 11 Vic. c. 34, s. 83).

I have purposely omitted any reference to temporary obstructions in the streets, which are naturally subjects for the interference of the police, but I think I have enumerated all those which require the attention of the town surveyor.

[131] _Vide_ 10 & 11 Vic. c. 34, s. 67.

[132] _Vide_ Fitzgerald’s ‘Public Health and Local Government Act
1875,’ 3rd edition, p. 166.

[133] _Vide_ 10 & 11 Vic. c. 34, s. 68.

[134] _Ibid._ ss. 69 and 70.

[135] Or _Owners_, see s. 160, 38 & 39 Vic. c. 55.

[136] _Vide_ Fitzgerald’s ‘Public Health and Local Government Act
1875,’ 3rd edition, p. 174.

[137] Or owner, see 38 & 39 Vic. c. 55, s. 160.

[138] Towns Improvement Clauses Act 1847, s. 70.

[139] Or owner.

[140] _Vide_ ‘Fitzgerald’s Public Health and Local Government Act
1875,’ 3rd edition, p. 175.

[141] Care must be taken that the mode of construction “directed by
the commissioners” authorises this part of the notice.

[142] In the City of London these patent lights have been fixed in the
pavement round the whole of the frontage of Mansion House Buildings,
at the corner of Queen Victoria Street, and also over the whole of the
pavements in Draper’s Gardens, besides many other equally crowded
thoroughfares, without the least inconvenience being experienced.

[143] In the Act the words used are “shoot” and “trough.”

[144] These words must be omitted if there is no special Improvement
Act.

[145] _Vide_ p. 176.

[146] Sir Fred. Parnell in his celebrated work upon roads has the
following paragraph upon this subject:--

The great advantage of having a road perfectly exposed to the action
of the sun and wind will be more accurately conceived by referring to
writers of science on evaporation. Dr. Hailey states that one-tenth of
an inch of the surface of the sea is raised per diem in vapour. He
also says that the winds lick up the water somewhat faster than it
exhales by the heat of the sun. Other writers say the dissipation of
moisture is much accelerated by the agency of sweeping winds, the
effects being sometimes augmented five to ten times.

Trees are particularly injurious by not allowing the sun and wind to
have free action on the surface of roads producing evaporation.
Besides the benefit which a road receives from its drying rapidly by
an open exposure to the atmosphere, there is another of great
importance, namely, that of affording to horses the advantage of free
respiration; for it is well known that the powers of a horse to
perform work with ease, particularly when moving rapidly, depends upon
the quantity of cool and fresh air that he can pass through his lungs.
If the cause of horses tiring or becoming ill under their work be
carefully examined into, it will often be found that it is not their
muscles or limbs that fail them, but their wind; and therefore, it is
particularly important to have a road so circumstanced that a horse
may on all parts of it have the benefit of a free current of air.

[147] No person can put up hoards or scaffolds in the streets without
first obtaining the consent of the urban authority, _vide_ sections
144 and 149 of the Public Health Act 1875. Many towns also have
private improvement Acts with very binding clauses on this subject,
empowering the surveyor to demand a fee for a licence to erect a
hoarding, and empowering him to remove these after notice, &c.

[148] This is scarcely ever feasible, or of the slightest use if done.

[149] Mr. Cooper states that “a tall chimney will rock 1 inch in a
moderate wind, and even to an extent of ¹⁄₈th of an inch at a distance
of only 16 feet up from its base, and yet be safe.” (_Vide_ ‘Minutes
of Proceedings of the Institution of Civil Engineers,’ vol. xxvii. p.
100.)

[150] Whilst this work was in the press the terrible disaster arising
from the falling of an immense chimney shaft at Bradford took place,
the result of which was the death of upwards of forty persons and
great destruction of property.