Appellant completing interim reinstatement of street after works – Appellant failing to complete permanent reinstatement – Council laying informations against appellant six months after interim reinstatement of street – Whether informations out of time by virtue of section 127 of Magistrates’ Courts Act 1991 – Whether failure properly to reinstate contrary to section 70(4) of Roads and Street Works Act 1991 a continuing offence
In February 1998 the appellant, a statutory undertaker, carried out works to a water mains. On the same date, it completed interim reinstatement of the street and informed the respondent street authority of this. Under section 70(4) of the New Roads and Street Works Act 1991 the appellant was required to complete permanent reinstatement as soon as reasonably practicable and in any event within six months. The appellant, however, did nothing.
In April 1999 the council laid informations against the appellant charging it with 16 separate offences of failing to complete permanent reinstatement of the street as required by section 70(4). The date of the alleged offences was given in the informations as “on and after 25 August 1998”. The appellant accepted that it had failed to reinstate the streets but claimed that the magistrates were deprived of jurisdiction to try any of the 16 informations by virtue of section 127(1) of the Magistrates Court Act 1980, which required the informations to be laid within six months of the time the offences were committed. The magistrates found that section 95(2) of the 1991 Act pointed to the existence of a continuing duty under section 70, so that the appellant could be prosecuted at any time until the street was permanently reinstated. The appellant was convicted.
The appellant appealed by way of case stated contending that: (i) the 1991 Act created a number of separate offences in each subsection and imposed civil as well as criminal liabilities; (ii) each such offence provision needed to be separately construed; (iii) there was no reason in logic or as a matter of construction to hold that all offences should be continuing or once-and-for-all offences; and (iv) the court should not strain towards a construction of the relevant subsection that would have the result of maintaining a liability to prosecution in a magistrates’ court for more than six months after such a prosecution could have been launched.
Held: The appeal was dismissed.
In British Telecom plc v Nottinghamshire County Council [1998] PLSCS 268 it was held that the failure to reinstate, in accordance with section 70(4) of the 1991 Act and the specification and prescribed standards, had created a continuing offence that could be the subject of prosecution unless and until the reinstatement was properly carried out. There was no reason to try to distinguish that case, since it was recently decided under the relevant Act. Moreover, to do so would result in anomalies that were to be avoided: inter alia, that an undertaker who failed to complete works of permanent reinstatement simpliciter committed a continuing offence and could be prosecuted at any time, whereas an undertaker who first undertook interim works could not be prosecuted for any failure to carry out the permanent reinstatement after the expiry of six months. It could, therefore, be concluded that section 70(4) of the 1991 Act created a continuing offence and that the information had been laid within the six-month time-limit prescribed by section 127(1) of the 1980 Act: Hodgetts v Chiltern District Council [1983] 2 AC 120 distinguished.
Geoffrey Stephenson (instructed by the solicitor to Thames Water Utilities Ltd) appeared for the appellant; Mark Lowe QC and Ian Albutt (instructed by Parker Arrenberg Dawson & Cobb) appeared for the respondents.
Thomas Elliott, barrister
