England and Wales Court of Appeal (Civil Division) Decisions

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HER HONOUR JUDGE HAMPTON
(Sitting as a Deputy Judge of the High Court)
[2010] EWHC 278 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2010

Lord Justice Pill :

1. This is an appeal against a decision of Her Honour Judge Hampton sitting as a Deputy High Court Judge on 19 February 2010. The judge dismissed a claim by Hertfordshire County Council ("the appellants") for £335.31 for the placing of bollards over a manhole cover owned by Veolia Water Central Limited ("the respondents") on 19 July 2007. The claim turns on the interpretation of Section 81 of the New Roads and Street Works Act 1991 ("the 1991 Act") and regulations made under it. It turns on an issue which is likely to arise frequently.
2. The appellants are the highway authority and also the street authority under the 1991 Act for High Street, Rickmansworth. They received a telephone report that there was a cracked manhole cover in the street that had caused several people to trip up. The appellants sent a primary response crew to the site at about 4.30 pm. They considered that the manhole cover was a danger and placed two cones and some tape over it. On the following day, the manhole cover was subject to expert examination and was found to be a potential hazard. The respondents were identified, not without difficulty, as owners of the manhole cover and were notified of the defect on 23 July 2007. The manhole cover was repaired by the respondents on 25 July.
3. The sum claimed from the respondents by the appellants was to cover the making safe of the manhole cover with cones and tape, subjecting it to expert examination and collecting the cones and tape after the repair.
4. In a careful and succinct judgment, the judge found that the work done by the appellants came within the definition of "emergency works" in section 52 of the 1991 Act, which defines emergency works as "works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property".
5. The judge also found that it was appropriate and reasonable to take the emergency action of putting up warning cones. She found that the appellants' approach to the problem was appropriate and that the charges were reasonable.
6. There remained the legal question whether the appellants were, under the statutory scheme, entitled to charge the respondents for the work they had done. The 1991 Act provides a comprehensive code for the regulation of works carried out on or under the highway by, in the main, utility companies.
7. Section 81 of the 1991 Act appears in Part III of the Act entitled 'Street Works in England and Wales'. It provides:

"(1) An undertaker having apparatus in the street shall secure that the apparatus is maintained to the reasonable satisfaction of—

(a) the street authority, as regards the safety and convenience of persons using the street (having regard, in particular, to the needs of people with a disability), the structure of the street and the integrity of apparatus of the authority in the street, and

(b) any other relevant authority, as regards any land, structure or apparatus of theirs;

and he shall afford reasonable facilities to each such authority for ascertaining whether it is so maintained.

(2) For this purpose maintenance means the carrying out of such works as are necessary to keep the apparatus in efficient working condition (including periodic renewal where appropriate); and includes works rendered necessary by other works in the street, other than major highway, bridge or transport works (as to which, see sections 84 and 85 below).

(3) If an undertaker fails to give a relevant authority the facilities required by this section—

(a) the street authority may in such cases as may be prescribed, and

(b) any other relevant authority may in any case,

execute such works as are needed to enable them to inspect the apparatus in question, including any necessary breaking up or opening of the street.

(4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section—

(a) the street authority may in such cases as may be prescribed, and

(b) any other relevant authority may in any case,

execute any emergency works needed in consequence of the failure.

(5) The provisions of this Part apply in relation to works executed by a relevant authority under subsection (3) or (4) as if they were executed by the undertaker; and the undertaker shall indemnify the authority in respect of the costs reasonably incurred by them in executing the works.

(6) A relevant authority who execute or propose to execute any works under subsection (3) or (4) shall give notice to any other relevant authority as soon as reasonably practicable stating the general nature of the works.

(7) Nothing in subsection (3) or (4) shall be construed as excluding any other means of securing compliance with the duties imposed by subsection (1)."

8. The expression "as may be prescribed" in section 81(3) and (4) of the 1991 Act means prescribed by the Secretary of State for Transport ("the Secretary of State") by regulations (section 104(1)). The respondents are "an undertaker" within the meaning of that word in section 81 of the Act (section 48(4)). By virtue of section 89(3), references in section 81 to apparatus include a sewer, drain or tunnel, and section 105(1) provides that "apparatus" includes "any structure . . . for gaining access to apparatus". The manhole cover comes within that definition.
9. The Street Works (Maintenance) Regulations 1992 ("the 1992 Regulations") were made by the Secretary of State in exercise of his powers under section 81 of the 1991 Act. Regulation 2 provides:

"In these Regulations:-

'the Act' means the New Roads and Street Works Act 1991;

'relevant apparatus' means manholes or other surface boxes and covers at or about the level of the street surface and manhole chambers, tunnels and other structures affecting the integrity of the structure of the street."

Regulation 3 provides:

"If an undertaker has failed to afford the street authority the facilities required by section 81(1) of the Act in relation to relevant apparatus the street authority may, where they have reasonable cause to believe, by reason of subsidence or disturbance of the road surface, that the undertaker's apparatus has not been maintained as required by that subsection, execute such works as are needed to enable them to inspect the apparatus."

Regulation 4 provides:

"The street authority may execute any emergency works needed in consequence of the failure of an undertaker to secure that its relevant apparatus is maintained to the reasonable satisfaction of the street authority as required by section 81(1) of the Act where they have made an inspection in accordance with regulation 3 above and have found that such apparatus has not been so maintained."

10. The judge also found that the condition of the manhole cover was such that it was not in "efficient working condition" under section 81(2) of the Act and that the respondents had failed in their statutory duty under section 81(1) to secure that the apparatus was maintained to the reasonable satisfaction of the street authority. That finding is not challenged in this appeal.
11. For the appellants, Mr Reed referred to the substantial duties imposed on undertakers by the 1991 Act and the substantial powers of the street authority to ensure compliance with them. The street authority have power to give directions as to the timing of street works (section 56) and to give directions as to the placing of apparatus (section 56A). Criminal sanctions against the undertaker are available, for example, in section 71 and, where street works have been executed by an undertaker, the street authority have power to give directions, and in default to execute the works themselves and recover the costs from the undertaker (section 72). Section 60 imposes a general duty on undertakers to cooperate with the street authority and with other undertakers. Mr Reed submitted that a power in the street authority to do emergency works and charge the undertaker for them is consistent with the purpose and pattern of the statute.
12. It is common ground that there was no room for the application of section 81(3) and regulation 3 in this case. The manhole cover was at ground level and facilities were not required from the respondents to inspect it. It was visible and approachable in the street. The sub-section capable of applying is section 81(4) which empowered the appellants to execute emergency works "in such cases as may be prescribed". By virtue of sub-section (5), the respondent shall indemnify the appellants for works executed by the appellants under sub-section (4).
13. Thus one looks to section 81(4) and regulation 4. On behalf of the respondents, Mr Lennard submitted that the emergency works were not prescribed under regulation 4 because the appellants had not made "an inspection in accordance with regulation 3". In the absence of a failure by the respondents to afford the appellants the facilities required by section 81(1), and in the absence of a belief in the appellants of subsidence or disturbance of the road surfaces, section 81(4) cannot apply.
14. If that is correct, the appellants had no power to do emergency work under section 81(4). It does not follow that they acted beyond their powers because, as highway authority, they were entitled to do the work in discharge of their duty to maintain a highway maintainable at public expense, under section 41 of the Highways Act 1980. No power to seek an indemnity from an undertaker appears in section 41. In the absence of fuller argument, I would leave open whether the appellants could have claimed damages from the respondents for breach of their statutory duty under section 81(1), (see Keating v Elvan Reinforced Concrete Co Ltd [1968] 1 WLR 722).
15. The judge accepted the respondents' submissions, stating:

"The Claimant [the appellants] argues that in order to give a purposive interpretation to the Act it is permissible to read down paragraphs 3 and 4 of the Regulations in the way contended for. However tempting this may be it is not permissible, nor is it part of the judicial role, to set about correcting mistakes made by Parliament, particularly where a clear interpretation can be given to the words that Parliament has used. This is so, even when the effect of giving the words of the Regulation their natural and literal meaning is to make the operation of one part of the Statute, apparently inconsistent with the operation of other parts. Such inconsistencies are for Parliament, and not the Judiciary to resolve.

Accordingly I am driven, reluctantly, to the conclusion urged upon me by the Defendant. I interpret section 81 of the Act and Regulations 3 and 4 of the Regulations, so that they have the effect that the Claimant could only make a valid charge against the Defendant for the emergency works, if the Defendant had failed to afford the Claimants facilities to inspect, and the Claimant's belief that the apparatus has not been maintained is informed by a subsidence or disturbance of the road surface pursuant to Regulation 3."

16. We were referred to Parliamentary proceedings during the passage of the 1991 Act but, even if these were to be admissible, I did not find them relevant or helpful on the present issue.
17. Mr Reed submitted that to accept a literal construction of regulation 4 would be to defeat "the plain legislative purpose", citing Parker LJ in a quite different context in Attorney-General v Hislop [1991] QB 514, at 525. Mr Lennard frankly accepted that the wording of regulation 4 appeared to be without rational explanation but, he submitted, the duty of the court is to apply the regulation as worded.
18. I have come to the conclusion that this is a case in which the court should read regulation 4 of the 1992 Regulations in a way which avoids absurdity, having regard to the legislative purpose. Section 81(3) and regulation 3 are concerned with situations in which the street authority need facilities to inspect the undertaker's apparatus. If facilities are not provided, the authority may execute works necessary to enable them to inspect the apparatus. That may include "any necessary breaking up or opening of the street". The power arises under regulation 3 in circumstances where the street authority have reasonable cause to believe "by reason of subsidence or disturbance of the road surface" that the undertaker's apparatus has not been maintained as required. Those provisions clearly apply to underground apparatus which is not observable from the street.
19. Section 81(4) is not so limited and contemplates emergency works on any apparatus, whether above or below ground. The need for facilities for an inspection under section 81(3) will not arise in those cases where the defect is visible in the street. Section 81(4), subject to the regulations, empowers emergency works necessary to protect the public in consequence of the undertaker's failure to maintain apparatus. There is no sensible reason why the power to execute emergency works should not cover works on the surface, where no facilities for inspection are required from the undertaker and regulation 3 does not operate, as well as works underground.
20. I have no doubt that an error occurred in drafting regulation 4. That is confirmed by the wording of regulation 2. Under the definition in regulation 2, "relevant apparatus" in regulation 4 undoubtedly includes a manhole cover. It also includes other "surface boxes". The requirement for facilities for inspection under section 81(3) and regulation 3 does not arise in relation to such apparatus. Unless regulation 4 is read as including an inspection in cases where section 81(3) facilities are not required, there would be no need to include in regulation 2 apparatus on the surface. Read as the respondents contend, regulation 4 would emasculate section 81(4) by depriving it of any application to surface apparatus, which cannot, in my view, have been intended.
21. Where the apparatus is underground, it will often be necessary to make an inspection in accordance with regulation 3 but section 81(4) was not intended to cover only apparatus below ground. It would be absurd if it did so, thereby depriving the street authority of power under the section to take emergency action, in relation to apparatus on the surface, where required to ensure the safety and convenience of persons using the street.
22. To prevent such absurdity, regulation 4 must not, in my view, be read as referring exclusively to regulation 3 inspections. It must be read as providing for inspection in accordance, where appropriate, with regulation 3. A request to the respondents for "facilities" and the "affording" of them was not appropriate in the case of this manhole. Read in that sense, the requirement for inspection in regulation 4 was satisfied in this case, power to execute emergency works was conferred on the street authority and the right to be indemnified in respect of their costs arose.
23. I have noted that both in section 81(3) and section 81(4) the power of "any other relevant authority" is not limited to such cases as may be prescribed in regulations. The respondents relied on this as demonstrating that in making the regulations the Secretary of State intended to confer different powers on street authorities from those on other authorities under the Act, sewer authorities, transport authorities and bridge authorities. Given their role and overall responsibilities, I do not find it surprising that the position of street authorities was to be dealt with specifically. That does not reveal a parliamentary intention by regulation to emasculate the powers of street authorities, and street authorities alone, under section 81(4).
24. For the reasons I have given, I would allow this appeal.

Lord Justice Hughes :

25. I agree.

Lord Justice Stanley Burnton :

26. I also agree.