Prior to the passing of the Public Health Act 1875 the improvement of private roads and streets was dealt with under section 69 of the Public Health Act 1848, but the clause under which the town surveyor now works is that which is so well known as the 150th section of the Public Health Act 1875, and is as follows:

“Where any street within any urban district (not being a highway repairable by the inhabitants at large) or the carriageway, footway, or any other part of such street is not sewered, levelled, paved, metalled, flagged, channelled and made good, or is not lighted to the satisfaction of the urban authority, such authority may, by notice addressed to the respective owners or occupiers of the premises fronting, adjoining or abutting on such parts thereof as may require to be sewered, levelled, paved, metalled, flagged or channelled, or to be lighted, require them to sewer, level, pave, metal, flag, channel or make good, or to provide proper means for lighting the same within a time to be specified in such notice.

“Before giving such notice the urban authority shall cause plans and sections of any structural works intended to be executed under this section, and an estimate of the probable cost thereof, to be made under the direction of their surveyor, such plans and sections to be on a scale of not less than one inch for eighty-eight feet for a horizontal plan, and on a scale of not less than one inch for ten feet for a vertical section, and, in the case of a sewer, showing the depth of such sewer below the surface of the ground: such plans, sections and estimate shall be deposited in the office of the urban authority, and shall be open at all reasonable hours for the inspection of all persons interested therein during the time specified in such notice; and a reference to such plans and sections in such notice shall be sufficient without requiring any copy of such plans and sections to be annexed to such notice.

If such notice is not complied with, the urban authority may, if they think fit, execute the works mentioned or referred to therein; and may recover in a summary manner the expenses incurred by them in so doing from the owners in default, according to the frontage of their respective premises, and in such proportion as is settled by the surveyor of the urban authority, or (in case of dispute) by arbitration in manner provided by this Act; or the urban authority may by order declare the expenses so incurred to be private improvement expenses.

“The same proceedings may be taken and the same powers may be exercised in respect of any street or road of which a part is or may be a public footpath or repairable by the inhabitants at large, as fully as if the whole of such street or road was a highway not repairable by the inhabitants at large” (38 & 39 Vic. c. 55, s. 150).

One has only to look at the number of footnotes that follow this clause both in “Glenn” and “Fitzgerald” to see that it requires some considerable interpretation. I propose in this chapter to call attention to some of its engineering discrepancies and to point out the duties of the town surveyor in connection with its enforcement.

First then, I conclude that it is the duty of the surveyor to call the attention of the urban authority to the fact that any street within his district (not being a highway repairable by the inhabitants at large) is not “sewered, levelled, paved, &c.” but there is no express order for him to do so, but with whoever this duty rests, it is no doubt the surveyor’s duty to be certain that the street in question has never been dedicated to the public or repaired at the cost of the rates, but is really a private street within the meaning of the Act.

Before proceeding to give the manner of putting the 150th section into force, it is necessary to draw attention to some of its wording.

The word “sewered” no doubt is also meant to include all drains both for house sewage and surface water falling on the street, &c., and may be used in the same comprehensive manner that the word “sewerage” is generally employed.

“Levelled” is also rather a vague term, but it has been held to refer only to the level or cross section of the street itself, there being no power to charge the adjacent owners with the expense of altering the level of the street so as to make it conform to a street with which it connects. The word “formed” would in this case have therefore been a more appropriate phrase.

“Paved, metalled, flagged, channelled and made good” are very precise directions, but why both the words “paved” and “metalled” are used is not clear. Is the paving to be placed on the top of the metalling or vice versÂ? It seems ludicrous to have used both words. The word “kerbed” also ought no doubt to have been inserted, as no street either urban or suburban can be formed without this necessary adjunct.

These very precise directions, if carried out in their entirety, would cause great injustice to the adjacent owners of the property who had to bear the expense, for although “paving” and “flagging” may be necessary for streets situated in a town itself, they would be perfectly unnecessary for a suburban road, and it is to this latter class of work that the section is more frequently applied. There are generally very few badly maintained private streets in the heart and busiest parts of a town, much difference of opinion consequently exists in different localities as to what the requirements shall be.

Some urban authorities insist that the roadways shall be paved with granite setts or wood blocks, the footpaths being flagged or paved with asphalte, while others are content with ordinary macadamised roadways and gravelled paths.

There can be no doubt that the town surveyor must use considerable discretion in deciding what class of work should be demanded, and he must be greatly guided by the situation and requirements of the street in question and the description and value of the adjoining property.

With reference to the words “or is not lighted,” my opinion is that nearly all private streets are at once lighted by the urban authority out of the rates, so soon as buildings are erected at its sides or it is found necessary for the public convenience to do so. A reference to section 161 of the Public Health Act 1875 will show that there is no exclusion of private streets for that purpose, and for many obvious reasons it is better that the urban authority should themselves undertake this duty rather than throw it upon private individuals.

Having thus far drawn attention to some of the wording of the clause, it is now necessary to discuss the duties of the town surveyor in connection with it.

It will be seen that notice has to be addressed to the owners or occupiers of “premises fronting, adjoining or abutting on such parts thereof as may require to be sewered, levelled, paved, &c.” It is often found that although the greater portion of a certain private street may be in a shocking state of repair, perhaps just a small length here and there opposite portions of different frontages may not be so bad: for instance, the path may be well gravelled and kerbed and a narrow channel gutter inserted against a wretchedly constructed roadway. It is often open to question if the owners of these properties against which these partial improvements have been effected can expect to escape their liability. If they can, it complicates still more the working of an already greatly complicated clause.

“Before giving such notice the urban authority shall cause plans and sections ... to be made under the direction of their surveyor.”

This order involves some considerable amount of work. Very accurate surveys must be made and plotted to a large scale, levels must be taken, and where sewers have to be included in the notice it is often necessary to extend the survey considerably, in order to make provision for future extensions of streets or buildings or for the existing sewerage system. The clause is very particular in stating that the “depth of such sewer below the surface of the ground” must be shown, but no mention is made about the size. The latter point being of quite as great importance it would be thought as the depth, the question also at once arises, whether the new sewer must be specified of such a size as only to meet the requirements of the street alone, or may it be made of such an area as will carry the sewage of a considerable district? It would be most unjust to expect the owners of property to pay for a sewer larger than was required for the street in respect of which they were responsible, and if legal, the better plan would be for them to be charged with the cost of such a sewer as would be sufficient for their purpose and let any extra size that the surveyor found was requisite be paid for out of the public rates.

It should be noted that in addition to the plans and sections “an estimate of the probable cost” must also be prepared by the surveyor, and this must be very carefully prepared, for it has been held to be a “condition precedent to the recovery of the expenses, that such estimate should have been properly made” (Vide ‘Fitzgerald’ p. 160, 3rd edition).

No mention is however made in the Act of a specification, which is of course absolutely essential.

It may here be of use if I give a specimen form of notice to be served in connection with carrying out the duties involved by this clause; of course each town surveyor must alter the work specified to meet the requirements of the case;

The clause then goes on to say “If such notice is not complied with.”

It would be a most difficult and costly proceeding for any individual owner of property to execute the work for half the width of the street opposite his length of frontage, and the result would be anything but satisfactory if the owners of the properties were to comply with the notices in this manner.

If the owners do intend to comply with the notice, and carry out the work themselves, the best method for them to adopt is to hold a meeting and decide upon having it done, then to appoint one of their number, or some other person to superintend or carry out the work, and afterwards collect the money, but this is very seldom done, and the wisest course (which is generally adopted) is not to comply with the notice, but let the urban authority execute the work themselves. This again entails considerable labour upon the town surveyor, who has to superintend the work and see that all the details contained in the statutory notices are properly carried out, but his labour does not end here. Upon the completion of the work the amount expended has to be recovered “from the owners in default according to the frontage of their respective premises, and in such proportion as is settled by the surveyor of the urban authority, or (in case of dispute) by arbitration.”

It is scarcely necessary to point out what an immense amount of responsible work this involves. First, a separate account of all the labour and materials employed on the street must be most carefully kept and totalled at the end of the work, with such additional sum for supervision, &c., as the urban authority may think necessary.[151] The exact length of each property “fronting, adjoining or abutting” on the street, must be most carefully measured. A proportionate sum has then to be calculated for each of these, and this sum is often complicated by cross roads, cul-de-sacs, narrow passages, strips of land intervening between the street and the properties, and many other perplexing intricacies, in addition to those persons who are legally exempted from any payment under the following clause of the Public Health Act 1875:

“The incumbent or minister of any church, chapel, or place appropriated to public religious worship, which is now by law exempt from rates for the relief of the poor, shall not be liable to any expenses under the last preceding section as the owner or occupier of such church, chapel, or place, or of any churchyard or burial ground attached thereto, nor shall any such expenses be deemed to be a charge on such church, chapel or other place, or on such churchyard or burial ground ...” (38 & 39 Vic. c. 55, s. 151.).

The town surveyor, having ascertained what is the amount of the sum due from each owner, shall proceed to fill in the amount upon a form a specimen of which is now given:

There seems to be no power on the part of any owner to dispute the question as to whether the works carried out have been necessary or not, or whether the cost of the works have been excessive; the only point upon which they can go to arbitration is that as to whether the proportion settled by the surveyor is accurate or not, and this point the arbitrator is left to decide.

It must not be lost sight of that there is a clause in the Public Health Act 1875, which makes the expenses so settled by the surveyor very binding upon the owner of the property in question, unless he appeals within three months from the service of the notice, as the following extract from the clause will show:

... “Where such expenses have been settled and apportioned by the surveyor of the local authority as payable by such owner, such apportionment shall be binding and conclusive on such owner, unless within three months from service of notice on him by the local authority or their surveyor of the amount settled by the surveyor to be due from such owner, he shall by written notice dispute the same” ... (38 & 39 Vic. c. 55, s. 257)[152] and it must also be borne in mind that the person from whom these expenses may be recovered “is the owner of the premises at the time when the work was done, not the owner to whom notice requiring the work to be done may be given” (vide Fitzgerald’s Public Health Act, p. 301, 3rd edition); so that the town surveyor must be very careful to make sure that any of the property abutting on the street has not changed hands before he commences the work.

After the 150th section of the Public Health Act has been carried out and a private street has been thus put into thorough repair, the urban authority may take possession of it and declare it to be a highway repairable by the inhabitants at large; the following section of the Act gives the modus operandi necessary to effect this:

“When any street within any urban district, not being a highway repairable by the inhabitants at large, has been sewered, levelled, paved, flagged, metalled, channelled and made good and provided with proper means of lighting to the satisfaction of the urban authority, such authority may if they think fit, by notice in writing put up in any part of the street, declare the same to be a highway, and thereupon the same shall become a highway repairable by the inhabitants at large, and every such notice shall be entered among the proceedings of the urban authority.

“Provided that no such street shall become a highway so repairable if within one month after such notice has been put up, the proprietor or the majority in number of proprietors of such street, by notice in writing to the urban authority, object thereto, and in ascertaining such majority, joint proprietors shall be reckoned as one proprietor” (38 & 39 Vic. c. 55, s. 152).

The necessary notices in conformity with this section are usually prepared by the town clerk, so that the town surveyor has nothing to do with this proceeding except to maintain the street after it has been declared a highway repairable by the inhabitants at large, in the same manner as he does the rest of the public streets within his district.

There is still one other clause of the Public Health Act 1875, which deals with the question of private roads, and it is as follows:

“Any urban authority may agree with any person for the making of roads within their district for the public use through the lands and at the expense of such person, and may agree that such roads shall become and the same shall accordingly become on completion, highways maintainable and repairable by the inhabitants at large within their district; they may also with the consent of two-thirds of their number agree with such person to pay and may accordingly pay any portion of the expenses of making such roads” (38 & 39 Vic. c. 55, s. 146).

This clause is very explicit and requires no comment, it would however be much better for the urban authority in contemplating a case of this description to execute the necessary works themselves and agree with the person about the expense, for if they are intended to be afterwards taken over it is to be feared that the roads would be very improperly constructed in the first place by the person intending to hand them over. It must be noted that the word “roads” is used in the above clause instead of “streets” as in the other clauses I have quoted, and also that the word “maintainable” is added to repairable.

Street is the term legally used in the Public Health Act 1875, and is thus defined:

“Street includes any highway (not being a turnpike road) and any public bridge (not being a county bridge), and any road, lane, footway, square, court, alley or passage, whether a thoroughfare or not” (38 & 39 Vic. c. 55, s. 4.) so that whereas in the 150th section of the Public Health Act 1875, any of the above can be dealt with, it is only open for the urban authority to deal with roads under the 146th section of the Act, and it is sometimes rather difficult to define a road for the purposes of the latter section.