Leicestershire County Council v Transco plc

Street works — Charges payable if works overrunning — Late service of required notice of completion — Whether conclusive presumption that works continuing until 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 — Appeal allowed The appellant, a civil engineering contractor, carried out various roadworks on roads for which the respondent council were responsible as the local highway authority. The works were governed by the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway)(England) Regulations 2001, passed under section 74 of the New Roads and Street Works Act 1991. The appellant completed the works within the “reasonable time” permitted by regulation 5(1), but failed to serve, under regulation 4, a “works clear notice” or “works closed notice” informing the council of this. Several days later, it did, however, serve another required notice in respect of each of the works, namely a registration notice under regulation 7. The council treated the registration notices as works closed notices. None the less, they claimed that the appellant was liable to pay charges for late completion of the works, calculated from the end of the “reasonable period” until the notices were served, because the works were irrebuttably deemed to have continued until the date of the notices. They relied upon regulation 5(6), which stated that “works should be deemed to continue for the purposes of paragraph (3)” until notices were served. Paragraph (3) provided that the duration of street works included any period during which an undertaker was carrying out remedial works required by the authority. In proceedings by the council to recover the charge, two preliminary issues were tried to determine 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. The judge determined both issues in favour of the authority, holding that the deeming provision applied to all works, whether or not remedial, and that it created an irrebuttable presumption. The appellant appealed. Held: The appeal was allowed on both issues. 1. Per Kennedy LJ: Regulation 5(6) was confined to remedial works, because the highway authority needed to know when such works had come to an end. In addition, the notice obligations in regulation 4 applied only to interim and permanent reinstatement, not to remedial works. Reading regulation 5(6) as applying to street works of all kinds could be achieved only by impermissibly deleting from the paragraph the words “for the purposes of paragraph (3)”. Per Jacobs LJ: Regulation 5(3) was intended to ensure that a statutory undertaker could not be granted additional time to remedy poorly executed works. Prior to that requirement, it would normally have served a works clear or works closed notice. These needed to be treated as though they did not count for the purposes of the remedial works, and the draftsman’s solution was, by implication, to assume that such notices could be given at the end of the remedial works, as to which there was no express provision. Per Lord Phillips MR, dissenting: The wording of section 74(5C) of the 1991 Act, which provided that the regulations could make provision for “works to be treated as beginning or ending on the giving of… a notice”, led to the conclusion that the object of the 2001 Regulations, in so far as they imposed obligations to give notices at the beginning or ending of the works, was that the works should be “treated as” beginning and ending on the giving of those notices. Regulation 5(5) clearly achieved this in respect of beginning notices, and the inept draftsman had intended to achieve the same result by regulation 5(6). The deeming provision related to all works, including those in respect of which a works clear notice or works closed notice had been given. 2. The presumption raised by the deeming provision was a rebuttable one. To find otherwise would result in undertakers being faced with disproportionate financial penalties for administrative oversights. Moreover, it would lead to absurd results, with undertakers being able to avoid charges by giving start notices late or completion notices prematurely. Accordingly, although works were deemed to start and finish in accordance with the notices that had been given, it was open to both the highway authority and the undertaker to prove that this was not in fact the case. Javan Herberg (instructed by Osborne Clarke, of Bristol) appeared for the appellant; James Ramsden (instructed by the solicitor to Leicestershire County Council) appeared for the respondents. Sally Dobson, barrister