Street works — Charges — Charge payable if street works overrunning — Defendant contractor failing to serve on time end notice notifying authority of completion of works — Whether conclusive presumption that works continuing to date of notice — Whether presumption applying only to remedial works — Regulations 5(3) and 5(6) of Street Works (Charges for Unreasonably Prolonged Occupation of the Highway)(England) Regulations 2001
The claimant highway authority engaged the defendant, a civil engineering contractor, to carry out under-street works to gas pipes. The works were governed by the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway)(England) Regulations 2001, passed under the New Roads and Street Works Act 1991. Under the regulations, an undertaker such as the defendant would become liable to pay a charge if the duration of the works exceeded a reasonable period agreed with the authority. By regulation 4, the defendant was obliged to serve an end notice upon completion of the works. Pursuant to regulation 5(3), the duration of street works included any period during which an undertaker was carrying out remedial works required by the authority. Regulation 5(6) provided that “works should be deemed to continue for the purposes of paragraph (3)” until an end notice had been given.
The defendant completed the works, but omitted to serve end notices on the authority until after the end of the agreed “reasonable period”. The authority maintained that, by virtue of para 5(6), the defendant was obliged to pay charges calculated from the end of the reasonable period until the date of the notices, and they brought proceedings to recover those sums. Preliminary issues were tried as to whether: (i) the deeming provision in regulation 5(6) applied to works that were not of a remedial nature; and (ii) the deeming effect of the provision was conclusive or rebuttable.
Held: Both issues were determined in favour of the claimants.
1. The inclusion in para 5(6) of the words “for the purpose of paragraph (3)” did not lead to the conclusion that the deeming provision applied only to remedial works. Part of the purpose of the 1991 Act was to introduce a machinery, based upon the giving of notices at various stages in the execution of street works, that was designed to simplify the task of local authorities in supervising the work and, at the same time, to enable them to efficiently operate the charging system. End notices were intended to keep the authority informed of completion dates on a routine basis so as to enable them to plan and co-ordinate other necessary work, as well as to calculate charges for work that had overrun, without having to establish a complex monitoring system. In the light of that, there was no reason why the position should be different for remedial and non-remedial works. The term ” works”, in regulation 5(6), should be construed as applying to street works generally, notwithstanding the later reference to regulation 5(3), which brought remedial work within the charging regime that applied to both remedial and non-remedial works.
2. The interpretation of the 1991 Act and the 2001 Regulations, and the purpose of that legislation, required the deeming provision in regulation 5(6) to be construed as creating an irrebuttable presumption. If this were not the case, the statutory purpose underlying both the notice system and the method of levying charges would be subverted or at least severely undermined. If undertakers could contend for actual completion dates that were different from those in the notices, that might impose a very great administrative burden upon highway authorities, who would probably have to monitor on-site activities on a far wider scale than was presently the case. This was analogous with the rules as to date of service in the CPR: Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1 WLR 997 applied, DEG-Deutsche Investitions und Entwicklungsgesellschaft GmbH v Koshy [2001] EWCA Civ 79; [2001] 3 All ER 878 and Gray v Kerslake [1957] 11 DLR (2d) 225 considered.
James Ramsden (instructed by the solicitor to Leicestershire County Council) appeared for the claimants; Javan Herberg (instructed by Osborne Clarke) appeared for the defendant.
Sally Dobson, barrister
