Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thames Water Utilities Ltd v London Borough Of Bromley [2000] EWHC Admin 301 (4 March 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/301.html
Cite as: [2000] EWHC Admin 301
[New search] [Printable RTF version] [Help]
THAMES WATER UTILITIES LTD. v. LONDON BOROUGH OF BROMLEY [2000] EWHC Admin 301 (4th March, 2000)
Case No: CO/4600/99
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
DIVISIONAL COURT
CROWM OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 4 March 2000
LORD JUSTICE SCHIEMANN
MR. JUSTICE DOUGLAS BROWN
THAMES WATER UTILITIES LTD. |
Appellant | |
- v- |
||
LONDON BOROUGH OF BROMLEY |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
GEOFFREY STEPHENSON (instructed by Legal Department, Thames Water for the Appellant)
MARK LOWE Q.C. & IAN ALBUTT (instructed by Legal Department London Borough of Bromley, Parker, Arrenberg, Dawson, Co for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SCHIEMANN:
Statutory undertakers have various rights to carry out street works in order to
ensure the proper functioning of their undertaking. They are supposed to
reinstate the street as soon as is reasonably practicable. They do not always
do that. The Defendant Thames Water Utilities is a statutory undertaker and it
failed to reinstate the street. The Respondent Street Authority has the task of
policing these duties and they laid informations against Thames Water charging
16 separate offences of failing to complete permanent reinstatement of the
streets as required by section 70(4) of the New Roads and Street Works Act
1991. Thames Water accept that they had failed as alleged but it relied on
section 127 of the Magistrates Court Act 1980 as depriving the magistrates of
jurisdiction to try any of the 16 informations. The magistrates nonetheless
convicted. Before the Court is Thames Water's appeal by way of Case Stated.
Section 127(1) provides:
........ "A magistrates' court shall not try an information or hear a complaint
unless the information was laid .... within 6 months from the time when the
offence was committed ......."
The issue in the present appeals is `when were the offences charged
committed?'. There is no dispute as to the facts. The determinative question
is : what facts amount to the commission of the offence charged?
The relevant sections of the street works code are now contained in sections
70, 71, 72, and 95 of the 1991 Act. These provide as follows:
s. 70(1) It is the duty of the undertaker by whom street works are executed
to reinstate the street.
(2) He shall begin the reinstatement as soon after the completion of
any part of the street works as is reasonably practicable and shall carry on
and complete the reinstatement with all such dispatch as is reasonably
practicable.
(3) He shall before the end of the next working day after the day on which the
reinstatement is completed inform the street authority that he has completed
the reinstatement of the street, stating whether the reinstatement is permanent
or interim.
(4) If it is interim, he shall complete the permanent reinstatement of the
street as soon as reasonably practicable and in any event within six months (or
such other period as may be prescribed) from the date on which the interim
reinstatement was completed; and he shall notify the street authority when he
has done so.
......
(6) An undertaker who fails to comply with any provision of this section
commits an offence and is liable on summary conviction to a fine not exceeding
level 3 on the standard scale.
(7)............................
s. 71(1) An undertaker executing street works shall in reinstating the street
comply with such requirements as may be prescribed as to the specification of
materials to be used and the standards of workmanship to be observed.
(2) He shall also ensure that the reinstatement conforms to such performance
standards as may be prescribed -
(a) in the case of interim reinstatement, until permanent reinstatement is
effected, and
(b) in the case of permanent reinstatement, for the prescribed period after
the completion of the reinstatement.
(3).............
(4).............
(5) An undertaker who fails to comply with his duties under this section
commits an offence and is liable on summary conviction to a fine not exceeding
level 3 on the standard scale.
s. 72(1)..............
(2).....................
(3) The street authority may by notice require an undertaker who has failed to
comply with his duties under this Part with respect to reinstatement to carry
out the necessary remedial works within such period of not less than 7 working
days as may be specified in the notice.
If he fails to comply with the notice, the authority may carry out the
necessary works and recover from him the costs reasonably incurred by them in
doing so.
(4)...............
(5)..............
s. 95(1) Any provision of this Part imposing criminal liability in respect of
any matter is without prejudice to any civil liability in respect of the same
matter.
(2) Where a failure to comply with a duty imposed by this Part is continued
after conviction, the person in default commits a further offence.
The only case on these sections to which we have been referred is an unreported
case British Telecommunications Plc v Nottinghamshire County Council
decided by this Court (Lord Bingham of Cornhill C.J. and Collins J. on 21st
October 1998 reference CO/1694/98). The information in that case alleged that
British Telecom having executed street works in 1994 on 30th January
1997 and thereafter did fail to comply with the requirements prescribed in the
specification for the reinstatement of openings in highways made under section
71 of the 1991 Act as to standards of workmanship to be observed in reinstating
the street contrary to sections 71(1) and 71(5) of the 1991 Act. It was argued
on behalf of British Telecom that section 127(1) of the Magistrates
Courts Act 1980 deprived the Magistrate of jurisdiction because the information
had not been laid within six months from the time the offences had been
committed, which had been in early 1994. The County Council on the other hand
contended that the offences were continuing offences, continuing so long as the
defective reinstatement remained unrectified. Accordingly the Council
submitted that the informations had been laid within the six months time limit.
That submission was accepted by Stipendiary Magistrate who was upheld by this
Court.
Lord Bingham C.J. said this:
"If an undertaker reinstates a street using materials or workmanship which do
not comply with the specification, does the duty to reinstate in accordance
with this specification continue indefinitely so that his failure to reinstate
in accordance with the specification constitutes a continuing offence for which
he may be prosecuted at any time until the street is reinstated in accordance
with the specification? Or is the offence complete when the undertaker
reinstates otherwise than in accordance to the specification so that an offence
is committed then and any information must be laid within six months of the
purported completion?...... It seems to me important that the over-riding duty
to reinstate in section 70(1) of the Act is expressed in wholly general terms
and without any qualification whatever as to time, albeit it the undertaker is
required to give notice to the street authorities. Furthermore the duty laid
on an undertaker in section 71(1) is again an obligation to reinstate properly,
there being no limitation of time whatever attached to that duty........ It
seems to me very difficult..... to give any effect to section 95(2) if there is
not, in fact, a continuing duty...... It seems to me difficult to construe
section 95(2) on the premise that a duty ends on the completion of
reinstatement, even if that reinstatement is defective. It is scarcely
possible as it seems to me to envisage any prosecution being begun before
purported completion of the reinstatement, but on BT's argument the duty to
reinstate properly would have come to an end on purported completion, yet here
in section 95(2) we find reference to a failure to comply with a duty being
continued after conviction and that seems to me to point strongly towards the
continuation of the duty.... I would accordingly conclude that the failure to
reinstate in accordance with the Act and prescribed standards and the
specification creates a continuing offence which may be the subject of
prosecution unless and until the time comes when the reinstatement is properly
carried out."
So far as the present case is concerned we can take the first summons as a
paradigm. The appellant repaired its mains on the 11th February of 1998. On
that very date it completed the reinstatement informing the street authority
that the reinstatement was interim. Pursuant to s.70(4) it should have
completed permanent reinstatement as soon as reasonably practicable and in any
event within 6 months. However, it did nothing. The Street Authority likewise
did nothing until, we are told, 21st. April 1999 when the information was laid.
The date of the offence alleged in the information is given as on and after the
25th of August 1998.
The Magistrates, like this Court in the British Telecom case, found that
section 95(2) pointed to the continuance of the duty imposed by section 70 and
that in consequence the undertaker could be prosecuted at any time until the
street was permanently reinstated.
Mr. Geoffrey Stephenson, in his elegant submissions, made the following points.
First, the 1991 Act creates a number of separate offences in each sub-section
and imposes civil as well as criminal liabilities. Second, each such offence
provision needs to be separately construed. Third, there is no reason in logic
or as a matter of construction that all offences should be continuing or all
once and for all offences. Fourth, the Court should not strain towards a
construction of the relevant subsection which would have the result of
maintaining a liability to be prosecuted in a Magistrates Court for more than
six months after such a prosecution might have been launched.
Mr. Mark Lowe, Q.C., taking the British Telecom case as having been
rightly decided, submits that if the applicant succeeds in the present case
then two anomalies will arise. First the undertaker who fails to complete
works of permanent reinstatement simpliciter commits a continuing offence and
may be prosecuted at any time whereas the undertaker who first undertakes
interim works may not be prosecuted for any failure to carry out the permanent
reinstatement after the expiry of the relevant period. Second he submits that
it must be the appellant's case that, although it may be prosecuted under
section 71(1) for a failure to execute interim works to the required
standard at any time (see British Telecom) it commits no offence in
respect to the failure to complete the permanent reinstatement of the street
after the expiry of the six months commencing with the completion of the
interim works. Further he draws attention to the fact that section 70(4)
imposes upon the undertaker a duty to complete the permanent reinstatement of
the street as soon as reasonably practicable; the six month period is merely a
long-stop. He posits the situation where the undertaker fails to complete
within the six months provided for in section 70(4) and where the authority lay
an information three months thereafter. He suggests that, if the appellant is
right in the present case, an undertaker would be able to lead evidence that
the permanent reinstatement of the street could have been achieved within three
days of the interim reinstatement. Then, on the appellant's argument, the
information would not have been laid within the six months referred to in the
Magistrates Court Act. He submits that the court should be slow to assume that
Parliament intended to confer an immunity from prosecution in such
circumstances.
Mr Stephenson analysed the speech of Lord Bingham in British Telecom
with care. He pointed out that s.70(1) and s.71(1) impose a civil duty breach
of which entitles the Street Authority to carry out the work at the
undertaker's expense - see s.72(3). He suggested that Lord Bingham had
perhaps overlooked this when he attached importance to the absence of any
reference to time in those two sub-sections. It is perfectly possible to have a
continuing civil duty and yet prevent prosecutions after 6 months.
For my part, I find the reasoning of Lord Bingham in relation to s.95(2) wholly
convincing. I therefore see no reason to try and distinguish the case. To do so
would add yet further complexities to an area of the law which already abounds
in them. Mr Stephenson cited a number of cases in which similar problems under
different Acts of Parliament have been considered - Hodgetts v Chiltern
District Council [1983] 2 A.C. 120, Hertsmere Borough Council v Alan
Dunn Building Contractors Ltd. (1985) 84 L.G.R. 214 (D.C.), Camden B.C.
v Marshall [1996] 1 W.L.R. 1345 (D.C.) and Torridge D.C. v Turner
(1991) 90 L.G.R. 173. Each of these cases is considered in the judgment of Lord
Bingham CJ in the British Telecom. The only one upon which I propose to
stay is the first, which was decided by the House of Lords.
In Hodgetts' case the appellant council preferred informations against
George and Helena Hodgetts under section 89(5) of the Town and Country Planning
Act 1971. The information alleged that he/she had on and since May 27th 1980
permitted land and buildings to be used for the purposes of an office and
storage of builders' materials in contravention of an Enforcement Notice served
pursuant to section 87 of the Act. The Crown Court was persuaded that section
89 (5) created a continuing offence which occurred and repeated itself during
the period of default and that since the information related to more than one
day they were bad for duplicity. There was authority to that effect and the
Divisional Court set in train a leap-frog appeal to the House of Lords which in
due course over-ruled that authority. Lord Roskill delivered the leading
speech in which he said at p. 127G:
"Section 89 deals with penalties for non-compliance with two classes of
enforcement notices: (a) those, dealt with in sub-sections (1) to (4), which
require the owner of land to do something on it ("do notices"), and (b) those,
dealt with in sub-section (5), which require the user of land to stop doing
something on it ("desist notices"). As respect each of these classes of notice
the section creates two types of offences (i) an initial offence created by
sub-section (1) and by the first limb of sub-section (5) down to the
semi-colon, respectively; and (ii) what is described as a "further offence"
which is created by sub-section (4) and by the second limb of sub-section (5)
after the semicolon, respectively, and (sc. which) can only be committed by a
person who has already been convicted of the corresponding initial offence.
It is not an essential characteristic of a criminal offence that any prohibited
act or omission in order to constitute a single offence, should take place once
and for all on a single day. It may take place, whether continuously or
intermittently, over a period of time. The initial offence created by
sub-section (1) in the case of non-compliance with a "do notice", is complete
once and for all when the period for compliance with the notice expires; but it
is plainly contemplated that the further offence of non-compliance with a "do
notice" created by sub-section (4), though it too is a single offence, may take
place over a period of time, since the penalty for it was made depended on the
number of days on which it takes place.
Similarly, as respect is non-compliance with a "Desist Notice", it is in my
view clear that the initial offence (as well as the further offence) though it
too may take place over a period, whether a continually or intermittently (e.g.
holding a Sunday Market), is a single offence and not a series of separate
offences committed each day that the non-compliance prior to the first
conviction for non-compliance continues. If it were otherwise it would have
the bizarre consequence that upon summary conviction a fine of £400 per
diem could be imposed for each such separate offence committed before the
offender received his first conviction, whereas for any further offence
committed after the offender against a "desist notice" had been convicted, a
daily fine of only £50 could be inflicted. Uniquely a previous conviction
would be a positive advantage to the offender. This can hardly have been in
Parliament's intention."
Mr Stephenson relies upon the obiter dicta of Lord Roskill in the second
paragraph cited above in which he says that the initial offence in the case of
non-compliance with a "do" notice is complete once and for all when the period
for compliance with the notice expires. Mr Lowe draws attention to the
statement in the same paragraph that it is not an essential characteristic of a
criminal offence that any prohibited act or omission in order to constitute a
single offence should take place once and fore all on a single day. I
personally do not find Hodgett's case of any great assistance. Each
statute imposes its own regime and the Planning Act's regime is different from
the Street Works Act. For these reasons I forbear from an examination of the
other cases he cited all of which were decided under other statutes.
As it seems to me this court ought to follow the reasoning in British
Telecom which has the advantage that it was recently decided under the
relevant Act and that we ought to avoid the anomalies to which Mr Lowe has
drawn our attention.
I would dismiss this appeal and answer the magistrates question, namely does
s.70(4) of the 1991 Act create a continuing offence, in the affirmative.
MR JUSTICE DOUGLAS BROWN :- I agree.
© 2000 Crown Copyright