Statutory undertaker – Appellant owning and operating payphone kiosks – Duty to maintain kiosks under section 81(1) of New Roads and Street Works Act 1991 –Respondent street authority removing and disposing of damaged kiosks and claiming cost of works from appellant – Whether disposal included in “emergency works” within sections 81(4) and 52 – Whether respondents liable to appellant for loss occasioned by disposal – Appeal allowed
The appellant was a statutory undertaker that owned and operated a number of payphone kiosks in Nottingham. By section 81(1) of the New Roads and Street Works Act 1991, it was under a statutory duty to maintain the kiosks to the reasonable satisfaction of the respondents as the relevant street authority under the Act. Two kiosks in the city centre had broken doors and windows. The respondents wrote to the appellant requiring it to remedy the situation. It failed to do so. Thereafter, the respondents’ workmen fenced off the kiosks with plastic netting for safety reasons and later removed them. The appellant was not given prior notice of the removal. The respondents disposed of the kiosks and their contents, save for the money found in the coin-boxes, which they returned to the appellant.
The respondents claimed the cost of the works from the appellant, under section 81(5) of the 1991 Act, as “emergency works” carried out under section 81(4). The county court judge found that the condition of both kiosks was likely to cause danger to persons or property such that the works fell within the definition of emergency works in section 52(1). He held that the respondents were entitled to recover the cost of those works and dismissed a counter-claim by the appellant in respect of the loss of the kiosks and equipment.
The appellant appealed, contending that although the removal of the kiosks could properly fall within the definition of emergency works, their disposal and that of their contents did not, since the danger they presented had ceased when they were removed. It argued that the disposal could reasonably be severed from the removal works, such that the respondents were not protected by the provisions of section 52(2) that dealt with items that could not be so severed. The respondents submitted that section 52(2) should be given a reasonably broad interpretation, enabling them to do whatever was reasonable once they had dealt with the danger to the public.
Held: The appeal was allowed.
The disposal of the kiosks and contents was not required in order to put an end to, or prevent the occurrence of, circumstances likely to cause danger to persons or property within section 52(1) of the 1991 Act. Removal from the street was sufficient to remove that risk. Further, the respondents had not discharged the burden of showing that the disposal could not reasonably be severed from the removal works so as to fall within section 52(2). There was no problem of physical severance, nor were the two activities so closely or necessarily linked in time that they could not reasonably be severed.
Section 52(2) could not be given the broad interpretation advanced by the respondents. When dealing with an authority’s emergency powers to protect the public, which enabled that authority to interfere with another’s property, the wording of the legislation was to be interpreted in a straightforward and reasonably restrictive fashion. The word “severed” had been a deliberate inclusion. Accordingly, section 52(2) did not entitle the authority simply to do anything that they might regard as reasonable if the works could be severed. That being so, the disposal of the kiosks and equipment did not fall within the scope of emergency works by virtue of section 52(2), and the disposal of those items was not given legitimacy under any statutory provision. The Act did not empower the respondents to dispose of the kiosks and equipment free from civil liability; those items belonged to the appellant. Such a disposal amounted to a wrongful interference with goods, for which a claim in damages lay. The wrong was a form of conversion under section 1 of the Torts (Interference with Goods) Act 1977.
A street authority were not obliged to store removed apparatus indefinitely after exercising their section 52 powers, with the financial burden and other problems that that might entail. In such a case, the authority should give notice to the owner that they had removed the apparatus and would dispose of it by a specified and reasonable date if the owner had not collected it by that time. In such a situation, any loss resulting from disposal would have been caused by the owner’s inaction and would not be recoverable: Sachs v Miklos [1948] 2 KB 23 applied. Since the respondents had not informed the appellant of the removal of the kiosks before disposing of them, or given a notice of the removal, they remained liable for any loss caused by that disposal.
Tom Gosling (instructed by DWF LLP) appeared for the appellant; Olivia Chaffin-Laird (instructed by the legal department of Nottingham City Council) appeared for the respondents.
Sally Dobson, barrister
