Statutory duty – Breach – Defendant utility provider replacing gas main – Street being reinstated following execution of works – Claimant council laying informations against defendant alleging breaches of statutory duty – Informations alleging reinstatement not conforming to prescribed performance standards and unacceptable delay – Remedial works being undertaken – Whether multiple proceedings oppressive – Whether alleged breaches amounting to single offence – Appeal and cross-appeal dismissed
In 2004, the defendant’s predecessor replaced the existing gas main in a street and renewed services, which involved undertaking a single, albeit substantial, set of street works. The defendant gave the claimant council notice, under section 70(3) of the New Road and Street Works Act 1991, that reinstatement of the street was complete. Following complaints, the claimants carried out various inspections and identified numerous defects. A joint inspection followed and remedial works were agreed. Despite repeated reminder notices, some six months later the remedial works had not been completed to the required standard.
The claimants laid a large number of informations relating to the different dates upon which inspections had been carried out and the works found wanting. They alleged breaches of duty under the 1991 Act. The breaches concerned section 71(2) of the Act (the failure to ensure reinstatement to the prescribed performance standards) and section 66(1) (the works were not carried on and completed “with all such dispatch as is reasonably practicable”).
The defendant argued before a district judge that it was an abuse of process to be charged with 23 offences all arising on the same date at the same locations and concerning a single set of works. The claimants contended that the defendant was guilty of multiple breaches of duty over a significant period.
The district judge stated a case for the court as to whether she was right to conclude that the laying of multiple informations was an abuse of process and that the facts, as alleged, constituted a singe offence so that it was oppressive to prosecute each failing separately.
The claimants challenged the district judge’s interpretation of section 66, in which she held that “delay” was restricted to the initial street works and not to the process of reinstatement and remedial works. They also argued that the judge had been wrong to hold reinstatement meant “proper reinstatement”.
Held: The appeal and cross-appeal were dismissed.
The judge had been correct to hold that breach of the duty in section 71(2) constituted a single offence irrespective of the number of individual defects involved. Although the existence of multiple defects might affect the seriousness of the offence, it did not generate multiple offences for which the statutory undertaker could be penalised on an individual basis: British Telecommunications plc v Nottinghamshire County Council unreported 21 October 1998 considered.
Further, it was wrong to treat section 66 as encompassing the entire process from the street-works through to reinstatement, including remedial works. It was concerned only with the street works stage of the process so that reinstatement and street works were separate concepts. That was clear from the terms of section 66(1) and its position in the statute under the subheading “General requirements as to execution of street works”. Section 70 governed reinstatement of the street.
The judge had been right to maintain that to reinstate meant “proper reinstatement” to meet the requirements of section 71, that is not only that the street should be made good but that the defendant should comply with proper standards.
Matthew Reed (instructed by the legal department of Hertfordshire County Council) appeared for the claimants; Thomas Bradnock (instructed by Ashfords, of Exeter) appeared for the defendant.
Eileen O’Grady, barrister
