For convenience, I propose to treat in this chapter some subjects which, strictly speaking, do not come under the head of “obstructions,” but they are all questions which have to be considered by the town surveyor; temporary obstructions and other offences with which it is the province of the police to deal are omitted.

The following subjects will therefore be discussed:

(1.) Improving the line of frontages of streets.

(2.) Removing projections.

(3.) Doors and gates opening outwards.

(4.) Vault or cellar coverings.

(5.) Rain-water shutes and down-pipes.

(6.) Blinds or awnings over footpaths.

(7.) Trees over-hanging roadways.

(8.) Surface water from private premises running over footpaths.

(9.) Hoardings and scaffolds.

(10.) Dangerous buildings.

(1.) Improving the Line of Frontages of Streets.

—By the Towns Improvement Clauses Act 1847, certain powers were granted which enabled the commissioners to agree with owners of property to set back for the purpose of widening any street,[131] but this was often found to be difficult and wearisome of accomplishment, consequently in the Public Health Act 1875, the following important clause bearing upon this point was inserted.

“Where any house or building situated in any street in an urban district, or the front thereof, has been taken down in order to be rebuilt or altered, the urban authority may prescribe the line in which any house or building, or the front thereof, to be built or rebuilt in the same situation shall be erected, and such house or building or the front thereof shall be erected in accordance therewith. The urban authority shall pay or tender compensation to the owner or other person immediately interested in such house or building for any loss or damage he may sustain in consequence of his house or building being set back or forward, the amount of such compensation in case of dispute to be settled by arbitration in manner provided by this Act” (38 & 39 Vic. c. 55, s. 155).

This clause gives an excellent power to the sanitary authority, especially in older towns, to lay down improved building lines upon the plan of their town, and thus set back the line of buildings as opportunity offers.

In assessing the value of compensation to be paid to the owner for setting back his property, the following points should be considered:

(1.) The value of the area of the land given up to the public.

(2.) The loss of available and useful space to the premises.

(3.) If any use is made by the owner of the land given up to the public by constructing cellars underneath, the amount of compensation should be less.

(4.) The amount the owner will have to expend to make good the sides of the neighbouring premises thus exposed by his setting back must be considered.

A surveyor should be very careful to recollect if any building line has been laid down in any street when the plans of new buildings are deposited with him for approval. If these plans are approved without any notice being given to the owner to set back, it is questionable whether he can afterwards be called upon to do so.[132]

(2.) Removing Projections of Buildings.

—The Towns Improvement Clauses Act 1847 made provision for setting back any house or building, or any part which projected beyond the regular line of street when taken down, on payment of compensation,[133] and this and the following sections were incorporated in the general Public Health Act 1875.[134]

“The commissioners may give notice to the occupier[135] of any house or building to remove or alter any porch, shed, projecting window, step, cellar, cellar-door, or window, sign, sign-post, sign-iron, show-board, window shutter, wall, gate, or fence, or any other obstruction or projection erected or placed after the passing of the special Act, against or in front of any house or building within the limits of the special Act, and which is an obstruction to the safe and convenient passage along any street, and such occupier shall within fourteen days after the service of such notice upon him, remove such obstruction or alter the same in such manner as shall have been directed by the commissioners, and in default thereof shall be liable to a penalty not exceeding forty shillings; and the commissioners in such case may remove such obstruction or projection, and the expense of such removal shall be paid by the occupier so making default, and shall be recoverable as damages; provided always, that except in the case in which such obstructions or projections were made or put up by the occupier, such occupier shall be entitled to deduct the expense of removing the same from the rent payable by him to the owner of the house or building.”

The wall of a garden in front of a house, and shrubs in the garden, which encroach on the street, come within the words “any other obstruction” in this section.[136]

It is doubtful, however, if trade signs projecting at such a height as not to be “an obstruction to the safe and convenient passage along any street” can be removed under this section, however unsightly they may be, nor does it appear that flag poles or flags can be ordered to be removed when at such a height as to cause no obstruction.

The following clause, however, of the Public Health Act 1875 affects the question of new projections much more closely.

“It shall not be lawful in any urban district, without the written consent of the urban authority, to bring forward any house or building forming part of any street or any part thereof, beyond the front wall of the house or building on either side thereof, nor to build any addition thereto beyond the front of the house or building on either side of the same. Any person offending against this enactment shall be liable to a penalty not exceeding 40s. for every day during which the offence is continued after written notice in this behalf from the urban authority” (38 & 39 Vic. c. 55, s. 156).

Here some difficulty is frequently experienced as to the question if the building has really been brought beyond the common line of neighbouring buildings, especially where the houses are detached; but it is apparently left to the tribunal before whom the case is heard to decide this point, and the surveyor can only give his evidence, as in many other cases, to the best of his ability and knowledge, and trust to obtaining a verdict in his favour.

With regard to obstructions erected before the passing of the special Act, the commissioners may cause the same to be removed or altered as they think fit—

“Provided that they give notice of such intended removal or alteration to the occupier[137] of the house or building against or in front of which such alteration or removal is begun; and if such obstructions or projections shall have been lawfully made, they shall make reasonable compensation to every person who suffers damage by such removal or alteration.”[138]

Here the words “reasonable compensation” are difficult of construction and lead frequently to long litigation.

(3.) Doors or Gates opening outwards.—

Section 71 of the Towns Improvement Clauses Act 1847 enacts that “All doors, gates and bars put up after the passing of the special Act within the limits thereof, and which open upon any street, shall be hung or placed so as not to open outwards, except when in the case of public buildings the commissioners allow such doors, gates or bars to be otherwise hung or placed; and if (except as aforesaid) any such door, gate or bar be hung or placed so as to open outwards on any street, the occupier of such house, building, yard or land shall, within eight days after notice from the commissioners to that effect, cause the same to be altered so as not to open outwards; and in case he neglect so to do the commissioners may make such alteration, and the expenses of such alteration shall be paid to the commissioners by such occupier, and shall be recoverable from him as damages, and he shall in addition be liable to a penalty not exceeding 40s.”

Section 72 of the same Act further enacts, “If any such door, gate or bar was before the passing of the special Act hung so as to open outwards upon any street, the commissioners may alter the same so that no part thereof when open shall project over any public way.”

It is naturally necessary that doors or gates of all public buildings should hang so as to open outwards, so as to give a free and easy exit in case of panic, many serious accidents having arisen from a want of this precaution; but with regard to private premises the case is altogether different, and if doors and gates were allowed to open outwards, they would soon become a dangerous and intolerable nuisance.

It will be seen that there are two courses to be pursued in connection with this offence.

The first is where the door, gate or bar has been placed before the passing of the Towns Improvement Clauses Act in 1847, in which case the “commissioners may alter the same, so that no part thereof when open shall project over any public way.” This duty of course rests with the town surveyor, and in many cases it is not easy of execution, as structural difficulties may have to be encountered and overcome.

In the second case, where the door, gate or bar has been placed since the passing of the Act in 1847, certain penalties are incurred by the occupier or owner, and the commissioners may also alter the door, gate or bar at his expense.

The following specimen form of notice to be served in connection with a case of this description may be of use:

(4.) Vault or Cellar Coverings.—

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 40s. 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:

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 40s. 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:

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 40s. 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:

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 5l., and a further penalty not exceeding 40s. 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:

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.