Developers building new homes in rural locations, without mains gas, may choose to supply the houses on their developments with liquefied petroleum gas instead. Estates like this are often described as “metered estates” and contain pipework linked to one or more communal gas storage tank(s), often filled by a single supplier.
Calor Gas Ltd v Norfolk County Council [2019] EWHC 308 (Admin) concerned a local authority’s refusal to enter into an adoption agreement under Section 38 of the Highways Act 1980. The local authority objected to pipework that had been laid longitudinally under estate roads to supply liquefied petroleum gas to homes on a new housing development in Norfolk.
The local authority explained that it required utility apparatus laid beneath adopted roadways and footpaths to be the responsibility of a statutory undertaker and suggested that the gas supplier should apply for a gas transporter’s licence. It might be prepared to countenance private lateral connections and crossings, but did not allow private apparatus to be laid longitudinally along the highway.
The local authority explained that, where private apparatus crosses the highway, the entry and exit points are more likely to be apparent on inspection, thanks to the presence of chambers or valves at each side of the road. But longitudinal private apparatus is difficult to detect and, in the absence of an effective mechanism for notifying anyone digging up the road of its presence and location, the apparatus could be damaged during excavation work – which would be dangerous.
The gas supplier argued that the local authority’s policy in relation to granting licences under section 50 of the New Roads and Street Works Act 1991 was irrational and unlawful, because it was contrary to the statutory scheme. It argued that the existing technical advice, industry guidance and codes of practice supported the installation of services within a common trench (as opposed to laying them in an unpredictable position beyond the highway boundary). Furthermore, there were, in fact, appropriate record-keeping systems in place to make information available to anyone proposing works that might be affected by the existence of its pipework.
The court ruled in favour of the local authority, noting that street authorities have a broad discretion under section 50 and that, although applicants are entitled to appeal against the refusal of licences for latitudinal apparatus, there is no such right for longitudinal apparatus. Part of the purpose and policy behind the 1991 Act was public safety – which the local authority was seeking to protect. The judge observed that statutory undertakers are subject to a strict regulatory regime, which controls the way they operate and their financial stability, and rejected the notion that conditions could be attached to section 50 licences to act as a proxy for that regime.
The gas supplier will be dismayed by the decision. Developers may be disappointed too. And it will do nothing to reduce the number of freeholders who are subject to liabilities for the upkeep of privately managed roads and communal spaces – at a time when complaints about unregulated freehold service charges are growing.
Allyson Colby, property law consultant
