Highway – Statutory undertaker – Permit scheme – Contractor engaged by appellant statutory undertaker carrying out street works without required permit – Whether appellant being guilty of offence under permit scheme regulations – Appeal dismissed
The appellant was the statutory undertaker with legal rights to carry out certain development and highways works in North London. In February 2011, it was granted retrospective planning permission to carry out emergency works relating to a stop valve connection in Holloway Road and interim works were completed. The appellant’s contractor then applied for a permit to carry out permanent reinstatement works which was refused on the grounds that it would conflict with other activities on site.
A traffic warden employed by the respondent permit authority subsequently observed that the work site had been reinstated with signing, lighting and guarding left in place. A fixed penalty notice was issued which the appellant paid. However, the respondent rejected the notice and issued a summons alleging that the appellant had breached regulation 19 of the Traffic Management Permit Scheme (England) Regulations 2007 (SI 2007/3372).
Regulation 19 of the 2007 Regulations provided: “(1) It is an offence for a statutory undertaker or a person contracted to act on its behalf to undertake specified works in a specified street in the absence of a permit, except to the extent that a permit scheme provides that this requirement does not apply. (2) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”
A district judge ruled that the appellant had been in breach of the regulation and the appellant pleaded guilty. However, the appellant appealed by way of case stated against the decision of the district judge contending, inter alia, that the 2007 regulations had extended criminal liability beyond statutory undertakers to their contractors. If the judge was correct to hold that an undertaker’s duties under the regulations were non-delegable for the purposes of liability under regulation 19, the result would be that an undertaker which had demonstrably done nothing wrong would still be criminally liable even where it had instructed reputable contractors to act on its behalf and to comply with all relevant street works legislation.
Held: The appeal was dismissed.
The district judge had reached the right conclusion because the meaning of regulation 19 was clear on its face. A statutory undertaker could not avoid a criminal sanction where a person contracted to act on its behalf to undertake specified works in a specified street did so without a permit. When such works began and progressed, the statutory undertaker gave an undertaking to complete the works whether or not done by themselves or another contractor. A statutory undertaker could not avoid a criminal sanction for works it had undertaken to complete by purporting to delegate to a contractor. That was the plain meaning of the words.
Support for that conclusion could be derived from, inter alia, regulation 18 of the 2007 Regulations, section 15 of the London Permit Scheme for Road and Street Works and paragraph 18.4.1 of the Traffic Management Act 2004: Code of Practice for Permits 2008. It followed that it was not in the nature of the statutory scheme or the regulations to allow a statutory undertaker to divest itself of its statutory obligations and divert the fixed penalty to another.
Tom Bradnock (instructed by Ashfords, of Exeter) appeared for the appellant; Quentin Hunt (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
Highway – Statutory undertaker – Permit scheme – Contractor engaged by appellant statutory undertaker carrying out street works without required permit – Whether appellant being guilty of offence under permit scheme regulations – Appeal dismissedThe appellant was the statutory undertaker with legal rights to carry out certain development and highways works in North London. In February 2011, it was granted retrospective planning permission to carry out emergency works relating to a stop valve connection in Holloway Road and interim works were completed. The appellant’s contractor then applied for a permit to carry out permanent reinstatement works which was refused on the grounds that it would conflict with other activities on site. A traffic warden employed by the respondent permit authority subsequently observed that the work site had been reinstated with signing, lighting and guarding left in place. A fixed penalty notice was issued which the appellant paid. However, the respondent rejected the notice and issued a summons alleging that the appellant had breached regulation 19 of the Traffic Management Permit Scheme (England) Regulations 2007 (SI 2007/3372).Regulation 19 of the 2007 Regulations provided: “(1) It is an offence for a statutory undertaker or a person contracted to act on its behalf to undertake specified works in a specified street in the absence of a permit, except to the extent that a permit scheme provides that this requirement does not apply. (2) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”A district judge ruled that the appellant had been in breach of the regulation and the appellant pleaded guilty. However, the appellant appealed by way of case stated against the decision of the district judge contending, inter alia, that the 2007 regulations had extended criminal liability beyond statutory undertakers to their contractors. If the judge was correct to hold that an undertaker’s duties under the regulations were non-delegable for the purposes of liability under regulation 19, the result would be that an undertaker which had demonstrably done nothing wrong would still be criminally liable even where it had instructed reputable contractors to act on its behalf and to comply with all relevant street works legislation.Held: The appeal was dismissed. The district judge had reached the right conclusion because the meaning of regulation 19 was clear on its face. A statutory undertaker could not avoid a criminal sanction where a person contracted to act on its behalf to undertake specified works in a specified street did so without a permit. When such works began and progressed, the statutory undertaker gave an undertaking to complete the works whether or not done by themselves or another contractor. A statutory undertaker could not avoid a criminal sanction for works it had undertaken to complete by purporting to delegate to a contractor. That was the plain meaning of the words. Support for that conclusion could be derived from, inter alia, regulation 18 of the 2007 Regulations, section 15 of the London Permit Scheme for Road and Street Works and paragraph 18.4.1 of the Traffic Management Act 2004: Code of Practice for Permits 2008. It followed that it was not in the nature of the statutory scheme or the regulations to allow a statutory undertaker to divest itself of its statutory obligations and divert the fixed penalty to another. Tom Bradnock (instructed by Ashfords, of Exeter) appeared for the appellant; Quentin Hunt (instructed by the Treasury Solicitor) appeared for the respondent.Eileen O’Grady, barrister
