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;
To the Owner or Owners of certain premises fronting, adjoining, or abutting upon a certain street, called in the parish of in the borough of in the county of
Whereas the said street is not levelled, paved, metalled, channelled and made good to the satisfaction of the mayor, aldermen and burgesses of , the urban sanitary authority of the above-named borough: