England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 February 2010

HHJ Hampton:

(Unless otherwise stated, page numbers refer to the trial bundle).

Introduction

1. This action started life as a Part 8 claim, seeking the court's determination as to the interpretation and effect of section 81 of the New Roads and Street Works Act 1991 ("the Act"). The claim relates to an invoice, issued by the Claimant to the Defendant, in the sum of £335.31. The charge was for the placing of bollards by a primary response crew, acting on behalf of the Claimant, over a broken manhole cover, the property of the Defendant, on Rickmansworth High Street in July 2007.
2. Whilst the value of the claim would ordinarily require this action to be brought in the Small Claims Track, I understand that the outcome of this litigation may affect many thousands of similar invoices since a large number of Street Authorities and Undertakers are affected by the provisions of the Act. Uncertainty has been caused by the drafting of the Act and its subordinate Regulations.
3. The Claimant is the County Council, which is both the highway authority and the street authority within the meaning of the Act for Rickmansworth High Street, where the problem which gives rise to this litigation occurred. The Defendant, formerly known as Three Valleys Water plc, is an undertaker for the purpose of the Act.

The history

4. On 19^th July 2007 a telephone report was received by the Claimant, complaining about a manhole cover outside Thresher's off licence at 127 High Street, Rickmansworth to the effect that "there is a cracked manhole cover out the front of the shop and it has caused several people to trip up", (page 59). In accordance with its usual practice, the Claimant sent a primary response crew (in fact supplied by Amey Lafarge in accordance with a public/private alliance of highway services within the county), to inspect. The team consisted of two men driving a lorry. The response crew attended at about 4. 30 that day, they assessed the manhole cover, determined that it was a danger and placed two cones and some tape over the manhole cover. The following day Mr Tom O'Connor, a witness in this case, employed by Mouchel plc as an inspector, (under the rather complicated contractual arrangements for the public/private alliance), who acted as an authorised operator of the Claimant's street works register, inspected the manhole cover. He concluded that it was a potential hazard. He took a photograph to assist with identifying the owner of the manhole cover. On 23^rd July 2007, the Defendant (then Three Valleys Water plc), was identified as the owner of the manhole cover and accordingly the responsible utility company. Mr O'Connor on behalf of the Claimant, notified the Defendant of the defect by telephone on the same day. Subsequently that day, an electronic report was made to the Defendant, using a system devised by committees which have an interest in the maintenance and repair of highways and apparatus affecting those highways, installed by or on behalf of relevant utility companies. The report is to be found on page 64.
5. On 25^th July 2007 the manhole cover was repaired by the Defendant. The repair generated another electronic report, which is to be found on page 65. Mr O'Connor viewed the site whilst the repair was underway and took another photograph (page 66).
6. The Claimant was put to expense in the initial assessment of the problem and making it safe with cones and tape, inspecting the manhole cover through Mr O'Connor and thereafter, collecting the cones and tape once the manhole cover had been replaced. Mr Castleman, another witness and an employee of the Claimant, having reviewed the appropriate documents, issued the disputed invoice on 11^th September 2007.
7. The method of calculation is set out on page 164. The Claimant sought to charge for 2. 75 hours (which included travel) for the two workmen and their lorry, there was also a charge for Mr O'Connor's initial and subsequent inspection and supervisory work, undertaken to check the paperwork and prepare the invoice.
8. The Defendant now contends that the charges are not reasonable. However, it was not until this litigation was underway that this objection was raised. When it became clear that it was likely that litigation would be necessary in order to determine the correct statutory interpretation of the powers and duties imposed on the parties under the Act, the correspondence indicates that, it was only the interpretation of the provisions of the Act and subordinate legislation which would be in issue (see page 38).
9. Nevertheless factual disputes have arisen. I will set out my findings in relation to them before going on to consider the interpretation of the statutory provisions.

The issues

10. The issues raised by the Defendant in the pleadings and arguments were:

i) Whether the works carried out were "emergency works" within the meaning of section 52 of the Act.

i) Whether on the facts, the Defendant had failed to maintain the apparatus in an "efficient working condition" within the meaning of section 81(1) and (2) of the Act

i) Whether the costs charged for, were reasonably incurred.

11. Emergency works are defined by section 52 of the Act as (in summary) being works required to end or prevent existing or imminent defects likely to cause danger to persons or property. The section goes on to provide that "where in any civil or criminal proceedings brought by virtue of the provision of this Part the question arises whether works were emergency works, it is for the person alleging that they were to prove it. "

Findings of fact

12. The factual issues raised by the Defendant relied entirely on the unimpressive evidence of Mr Owen. His truculence and combative approach to cross- examination, reinforced the rather poor impression made by his witness statement, in which he gave a dogmatic opinion, based only on a photograph, as to whether the broken manhole cover justified emergency action and whether the Claimant's charges were reasonable. He had not inspected the site. He appears to have ignored the initial complaint from a member of the public that people had tripped on the defective cover.
13. At trial, the Defendant wisely (and no doubt in the face of the degree of judicial scorn), withdrew its arguments as to whether the condition of the manhole cover, indicated a failure to maintain or established that it was not in an "efficient working condition", for the purpose of section 81(2) of the Act. It is therefore only necessary to note that the Claimant made regular monthly inspections and produced documents at trial, showing that the area had been inspected, in each of the three months prior to the complaint about the manhole and no defect had been identified.
14. As to whether the manhole cover was "likely to cause a danger", within the meaning of section 52 of the Act, again Mr Owen's evidence was unimpressive. He was dismissive of the complaint made by a member of the public recorded at page 59. Yet he had never inspected the site. He was also most dismissive of Mr O'Connor's evidence. Mr O'Connor did visit the site on 20th July 2007. He has many years of experience as a highways inspector. He found that the manhole cover rocked when trodden on. The Defendants went as far as bringing a similar manhole cover to court for me to inspect in order to demonstrate that the cracked manhole cover could not possibly have rocked, set as it was in a lip. Although I concluded that Mr O'Connor's evidence that the cover could be raised some four to six inches at the edge if one stepped upon it in the middle, was a little overstated, nevertheless I accept his evidence that the cover was unstable. I find on the balance of probabilities that the uneven crack on the manhole cover, did have the effect that it would rock. In circumstances that there were already reports that it had caused people to trip, and noting the frequency with which members of the public trip and/or lose their footing as a result of minor defects in the highway, thereafter suing authorities such as the Claimant, I find it was appropriate and reasonable to take the emergency action of putting up warning cones.
15. As for the reasonableness of the charges, these were calculated using a unit cost method devised by Mr Currer, a witness for the Claimant. He explained his methods in his witness statement and gave further explanation from the witness box. The method was used to simplify the invoicing process. It inevitably involved an averaging out of costs, so that some e. g. emergency call outs, would actually cost rather less than the unit cost charge and some would incur rather more expense than the unit cost charge. However by using a unit cost method, administrative costs, for which the Claimant is entitled to charge when seeking to recover costs from utilities, are reduced. It is noted that the Defendant uses a similar unit cost method itself. Prior to the commencement of proceedings, the Defendant appears to have accepted that the costs the Claimant sought to recover were reasonable (page 172). In the course of his evidence Mr Owen, somewhat grudgingly, conceded that it was reasonable for the Claimant to have two men and a lorry in its primary response team, notwithstanding that the Defendant would probably use one man and a van for a similar call out. Plainly the two parties have different undertakings and different considerations apply. I note that the Claimant's hourly charges per man are slightly less than those used by the Defendant for its own unit costings (page 349).
16. Accordingly I find that the hourly rates charged by the Claimant were reasonable. I find it was reasonable for the Claimant to respond as soon as possible by sending a primary response team to assess the defect. I find it is reasonable to operate a two man primary response team, bearing in mind the Claimant's responsibilities as a street and highways authority. I note that two return journeys to the relevant site were required, to deliver and thereafter collect the cones. The inspections carried out by Mr O'Connor were reasonable, bearing in mind the nature and location of the problem. Although one might query the time taken for the paper trail thereafter, in these days of public/private initiatives, with different contractors all being required to devise charges according to appropriate protocols, and raise the appropriate paperwork, such bureaucracy is inevitable. There is no material upon which I could find it was unreasonable. It is not for a judge to undertake such an accounting exercise in order to overrule a carefully thought out scheme, such as that explained by Mr Currer.
17. Accordingly I find that the charges raised by the Claimant for its activities in relation to this manhole cover were reasonable.

The legal argument

18. This case is really about whether the Claimant, as a street authority under the Act is entitled to charge the Defendant, as an undertaker, for inspecting the site and installing cones and tapes over the manhole cover, pending its replacement by the Defendant.
19. The Act provides a comprehensive code providing for the regulation of works carried out on or under the highway by, in the main, utility companies. The code makes provision for the undertaker's duties and the street authority's powers. There is a good deal of subordinate legislation arising from the Act. The Street Works (Maintenance) Regulations 1992 ("the Regulations") have caused difficulties for the parties in this case.
20. The scheme of the Act provides, amongst other things for co-ordination of works by street authorities (section 59); duties of undertakers to co-operate with each other and the street authority: section 60; standards of workmanship: section 71; powers to reinstate: section 72; and the provision giving rise to the difficulty in this case, a duty upon undertakers to maintain apparatus "to the reasonable satisfaction of the street authority": section 81.
21. Section 81 of the Act provides, in summary, that an undertaker with apparatus in a street must maintain it to the reasonable satisfaction of the street authority "as regards the safety and convenience of persons using the street etc". The undertaker must also "afford reasonable facilities" for each relevant authority to ascertain whether the apparatus has been maintained. Section 81 (2) defines maintenance as "the carrying out of such works as are necessary to keep the apparatus in efficient working condition... ". Section 81(4) provides that if an undertaker fails to maintain the apparatus to the satisfaction of the relevant authority in accordance with the section then

"(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. "

22. Section 81(5) provides that in relation to works executed by a relevant authority under subsection 4, the undertaker shall indemnify the authority in respect of costs reasonably incurred by them, in executing the work.
23. The charges raised by the Claimant against the Defendant sought to use the power provided for in section 81(5).
24. The reference in section 81(4)(a) to "such cases as may be prescribed" is a reference to cases prescribed in the relevant Regulations. Those are the Regulations referred to above.
25. Paragraph 3 of those Regulations provides that:

"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 a 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. "

26. Paragraph 4 of the Regulations provide:

"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. "

27. There is no suggestion on the facts in the present case that the Defendant has failed to afford facilities for inspection, or that the road surface has subsided or been disturbed. Accordingly the Defendant argues that the power to execute emergency works under paragraph 4 of the Regulations does not apply and as a result, the Claimant is not entitled to charge the Defendant under section 81(5).
28. The Claimant protested in argument that this was tantamount to saying that in the circumstances that applied on the facts in the present case, the Claimant had no power to carry out any works to make the footpath safe.
29. The Defendant argues that the fact that the power may not arise under section 81 and the relevant Regulations, does not mean that the Claimant has no power. Indeed under section 41 of the Highways Act 1980, the Claimant as the highway authority for the relevant area, has a duty to maintain the highway. This would, inevitably, mean making safe a hazard such as that caused by the broken manhole cover. The Act and Regulations made under it, have already attracted judicial criticism. In Transco plc v Leicestershire County Council [2003] EWCA Civ 1524 Lord Phillips MR observed in paragraph 4, "the statutory provisions are long and complex. At times I have been inclined to wonder whether they are the product of a demented computer. " At paragraph 23, he observed that the Regulations under consideration in that case (not those I am required to interpret) were "gibberish". Nevertheless in Infolines Public Networks Limited v Nottingham City Council [2009] EWCA Civ 708, Lord Justice Keene observed (in relation to section 52) that:

"One is dealing here with emergency powers which are provided to an authority in order to protect the public. Those powers enable the authority to interfere with someone else's property. In a situation such as that, it seems to me that one should interpret the wording which the legislature has seen fit

to include in this Act in a straightforward and certainly reasonably restrictive fashion. "

30. In the course of his able arguments, Mr Reed, for the Claimant, emphasised the fact that, until the Defendant challenged the Claimant's authority to make a charge in these circumstances, most street authorities and utility companies accepted that it was appropriate to make a charge in these circumstances. A good deal of evidence was provided in writing, about liaison committees and working groups known as Highway and Utility Committees set up jointly by street authorities and undertakers to cover the whole of England, known as HAUCs. These are split into county committees, regional committees and so forth (see page 17). The HAUCs have devised codes of practice, which again appear to accept the legitimacy of charges in cases such as the present.
31. The fact that such committees and codes have interpreted the legislation in a particular way in the past, cannot determine the meaning of that legislation, when it is challenged by one of the parties which is subject to it.
32. Mr Reed argues that the 1991 Act should be seen as the primary guide to the meaning of the delegated legislation. However, the literal interpretation of the Regulations, is that the power of the street authority to undertake emergency works, is conditional upon an inspection having been undertaken under Regulation 3. That Regulation is subject to two further preconditions which do not arise in the present case. Accordingly, in the present circumstances even though the damaged apparatus is patent and is causing danger to the public, if the inspection is carried out, but not under the conditions described in Regulation 3, emergency works may not be carried out and charged for, under the Regulations, if the Regulations are literally interpreted. I agree.

This does not however mean that the street authority would have no power to execute emergency work. It must have a duty and therefore a power under section 41 of the Highways Act to maintain the highway, and this would include making safe any broken apparatus upon it. It is the entitlement to charge which is doubtful on a literal interpretation of the Act and the Regulations.

33. It is also suggested that if there is no power to charge, this is inconsistent with the provisions of section 72 and section 90 of the Act. Section 72 empowers the street authority to charge an undertaker, when it carries out investigatory works, to ascertain whether the undertaker has complied with its duties with respect to reinstatement. Similar provision is made in section 90(3) with regard to the reinstatement of sewers, drains or tunnels.
34. I accept that the provisions of section 81 and the accompanying Regulations do appear to be inconsistent with the scheme of the Act elsewhere. Whether or not this inconsistency was deliberately intended by the legislature, is not established. An argument might be made, when considering the provisions of the Act, for the proposition that the inconsistency was deliberate, although this is perhaps unlikely. It is more likely that there is a simple mistake and that insufficient attention was paid to the detail of Regulations 3 and 4, when drafting.
35. Does that entitle the Court to give the Statute and the Regulations the meaning the Claimant contends for?
36. The Claimant is asking me to read Regulation 4 as though the words "they have made an inspection in accordance with Regulation 3 above" are not there or may be disregarded, as providing a precondition to the execution of emergency works. Alternatively, it might be argued that the words "or otherwise" should be inserted after those words.
37. The Defendant argues that, it is permissible to consider the explanatory notes to the Regulations, in order to define the circumstances in which they will operate. The Learned Editors of Halsburys Laws of England observe at paragraph 15.22 of volume 44(1) N6; "the explanatory notes which are now customarily added to statutory instruments are expressed to form no part of them, but will be taken into account by the Court". Bennion on Statutory Interpretation (5^th Edition) observes at page 265; "although an explanatory note attached to Regulations is not part of the Regulations it is 'of use in identifying the mischief which the Regulations were attempting to remedy'. Lord Hope of Craighead said "in my opinion an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous".
38. In the present case, as the Claimant accepts, there is no ambiguity in the Regulations. This is a case where there is an apparent and the Claimant argues obvious, mistake. In any event the explanatory note reinforces the interpretation contended for by the Defendant.
39. The Claimant 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.

Conclusion

40. 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.
41. That is not the factual basis of the present claim. Accordingly the Claimant's claim for £335.31 is dismissed and the Claimant is not entitled to the declaration sought.

19^th February 2010

H H Judge Alison Hampton