Hertfordshire County Council v Veolia Water Central Ltd (formerly Three Valleys Water plc)

Highway – Maintenance – Appellant local authority placing cones and tape around broken manhole cover – Appellants notifying respondent owner of defect – Appellants seeking to recover cost of emergency works from respondent — Judge rejecting appellants’ claim — Whether judge erring in law — Appeal allowedThe appellants were the highway authority and the street authority under the New Roads and Street Works Act 1991 and its pursuant regulations. They brought proceedings to recover the cost of carrying out emergency works to make safe a broken manhole cover owned by the respondent utility company that had caused several people to trip. The High Court dismissed the appellants’ claim on the ground that the works had not been prescribed under regulation 4 of the Street Works (Maintenance) Regulations 1992 (SI 1992/1691) because the appellants had not made the inspection required under regulation 3.Regulation 3 provided that if an undertaker had failed to afford the street authority the facilities required by section 81(1) of the 1991 Act for ascertaining whether street apparatus (including manhole covers) was maintained, the authority could inspect the relevant apparatus where they had “reasonable cause to believe, by reason of subsidence or disturbance of the road surface” that it had not been sufficiently maintained.The judge held that, under the statutory scheme, the appellants were not entitled to charge the respondent for the work done on the basis that section 81 and regulations 3 and 4 meant that the appellants could make a valid charge for emergency works only if the respondent had failed to afford the appellants facilities to inspect, and the appellants did not have reasonable cause to suspect, pursuant to regulation 3, that the apparatus had not been maintained by reason of subsidence or disturbance of the road surface. The appellants appealed.Held: The appeal was allowed.Section 81(3) of the 1991 Act and regulation 3 of the 1992 Regulations were concerned with situations in which the street authority required facilities to inspect the undertaker’s apparatus. If the facilities were not provided, the authority could execute works necessary to inspect the apparatus, but only where they believed that the apparatus had not been maintained owing to “subsidence or disturbance of the road surface”. Those provisions clearly applied to underground apparatus that could be observed from the street.Section 81(4) was not so limited and contemplated emergency works on any apparatus, whether above or below ground. The need for facilities for an inspection under section 81(3) would not arise where the defect was visible at street level. There was no reason why the power to execute emergency works under section 81(4) should not cover works on the surface, where no inspection facilities were required from the undertaker and regulation 3 did not operate, as well as those underground.Regulation 4 had been wrongly drafted and it had to be read as including an inspection in cases where section 81(3) facilities were not required. It would be absurd if section 81(4) were intended to cover only apparatus below ground, since that would deprive the street authority of the power under the section to take emergency action in respect of apparatus on the surface. Accordingly, to prevent such absurdity, regulation 4 could not be read as referring exclusively to regulation 3 inspections; it had to be read as providing for inspection in accordance, where appropriate, with regulation 3.In the instant case, a request to the respondent for “facilities” and the “affording” of them was not appropriate in respect of the manhole. Read in that sense, the requirement for inspection in regulation 4 had been satisfied. The power to execute emergency works was conferred on the appellants and they were entitled to be indemnified for their costs.Matthew Reed (instructed by the legal department of Hertfordshire County Council) appeared for the appellants; Stephen Lennard (instructed by Veolia Water Central Ltd) appeared for the respondent.Eileen O’Grady, barrister