Hertfordshire County Council v National Grid Gas Plc

On 3 March 2006 Hertfordshire County Council (“the council”) laid a large number of informations against National Grid Gas plc (“the defendant”) alleging various breaches of duty under the New Roads and Street Works Act 1991 (“the Act”) in respect of the reinstatement of the street following the replacement of a gas main in Northfield Gardens, Watford. They included 23 informations alleging breaches of the duty under s.71(2) of the Act to ensure that the reinstatement conforms to prescribed performance standards: the date of the alleged breach in 7 of those informations was 15 September 2005 and the date in the other 16 was 8 November 2005. There were 3 informations alleging breaches of the duty under s.70(2) to begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable and to carry on and complete the reinstatement with all such dispatch as is reasonably practicable: each related to a different period of time in 2005 (11 February to 15 September, 15 September to 12 October, and 12 October to 8 November). There was also 1 information alleging breach of the duty under s.66(1) to carry on and complete the street works with all such dispatch as is reasonably practicable: in that case the period in question was 11 February 2005 to 14 December 2005.

Those informations gave rise to a number of preliminary issues which were the subject of a written judgment handed down by District Judge Allison, sitting at Watford Magistrates’ Court, on 12 January 2007. She upheld a defence submission in respect of the informations under s.71(2), holding that the facts alleged constituted a single offence, on each of the two dates, of failing to ensure that the reinstatement conformed to the required standard, and that it was oppressive and an abuse of process to prosecute each failing separately. She therefore directed that the proceedings under s.71(2) should be restricted to a single information in respect of each date. She rejected a defence submission in respect of s.70(2), holding that the duty under that subsection continued to apply after the defendant had purported to complete the reinstatement and during the period of remedial works subsequently required by the council, so that the proceedings under s.70(2) should continue. She upheld a defence submission that there was no case to answer in respect of s.66(1), on the basis that the section was aimed at the street works themselves (digging up the road and replacing the gas pipe) and not at the work of reinstatement.

Thereafter the council offered no evidence on the count under s.66(1). It also offered no evidence on 21 of the 23 informations under s.71(2) and amended the remaining 2 informations so as to include by way of additional particulars the defects identified in the others. The defendant pleaded guilty to those 2 informations. The defendant also pleaded guilty to the 3 informations under s.70(2). In addition, the defendant pleaded guilty to 2 informations that I have not otherwise mentioned because they did not feature in the preliminary issues and are not the subject of any appeal. The total fine imposed for all 7 informations to which the defendant pleaded guilty was £9,750.

The court now has before it two appeals by case stated. The council appeals against the judge’s ruling in respect of ss.71(2) and 66(1), and the defendant appeals against the judge’s ruling in respect of s.70(2).

Part 3 of the Act relates to street works in England and Wales. “Street works” are defined in s.48(3) as:

“works of any of the following kinds (other than works for road purposes) executed in a street in pursuance of a statutory right or a street works licence –

(a)

placing apparatus, or

(b)

inspecting, maintaining, adjusting, repairing, altering or renewing apparatus, changing the position of apparatus or removing it,

or works required for or incidental to any such works (including, in particular, breaking up or opening the street, or any sewer, drain or tunnel under it, or tunnelling or boring under the street).”

Section 54 makes provision for advance notice to be given to the street authority by an undertaker proposing to execute street works in prescribed cases. Notice of the starting date of works must be given in any event under s.55.

Section 66 relates to the avoidance of unnecessary delay or obstruction in the execution of street works. It provides, in material part:

“66.(1) An undertaker executing street works which involve –

(a)

breaking up or opening the street, or any sewer, drain or tunnel under it, or

(b)

tunnelling or boring under the street,

shall carry on and complete the works with all such dispatch as is reasonably practicable.

(2)

An undertaker who fails to do so commits an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”

The duty to reinstate is set out in s.70:

“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)

Any undertaker who fails to comply with any provision of this section commits an offence and is liable on summary conviction

(a)

in the case of an offence consisting of a failure to comply with subsection (3) or (4A), to a fine not exceeding level 4 on the standard scale; and

(b)

in any other case, to a fine not exceeding level 5 on the standard scale.”

Section 71 relates to the materials, workmanship and standard of reinstatement. It provides:

“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.

This obligation is extended in certain cases and restricted in others by the provisions of section 73 as to cases where a reinstatement is affected by subsequent works.

…

(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 5 on the standard scale.”

I have omitted reference to subss. (3) and (4) of s.71, which refer to regulations and codes of practice relevant to the matters mentioned in subss. (1) and (2). The details are material to the substantive breaches alleged in the various informations in this case but are not needed for the purposes of the issues in the two appeals.

Section 72 confers certain powers on the street authority in relation to reinstatement. It provides:

“72.(1) The street authority may carry out such investigatory works as appear to them to be necessary to ascertain whether an undertaker has complied with his duties under this Part with respect to reinstatement.

If such a failure is disclosed, the undertaker shall bear the cost of the investigatory works; if not, the street authority shall bear the costs of the necessary works and of any necessary reinstatement.

(2)

Where an undertaker has failed to comply with his duties under this Part with respect to reinstatement, he shall bear the cost of -

(a)

a joint inspection with the street authority to determine the nature of the failure and what remedial works need to be undertaken;

(b)

an inspection by the authority of the remedial works in progress; and

(c)

an inspection by the authority when the remedial works have been completed.

(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.”

Included within the supplementary provisions of Part 3 is s.95, concerning offences. It provides:

“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.”

Finally, reference should be made to the definition of “reinstatement” in s.105(1), which reads:

“’reinstatement’ includes making good. ”

In the course of 2004 the defendant’s predecessor in title, Transco plc, carried out work to replace the existing gas main and to renew services along both sides of Northfield Gardens. Northfield Gardens runs round three sides of a large square, with houses on each side of the road, but it is not in dispute that the area of the street works fell within a single “unique street registration number” in the relevant gazetteer and that a single statutory notice under s.54 and/or s.55, covering the entirety of Northfield Gardens, was relied upon by the defendant, without objection by the council, each time advance notice was given of where and when street works were to be carried out. We are therefore concerned in this case with a single, albeit substantial, set of street works.

On 7 December 2004 the defendant gave the council notice under s.70(3) that reinstatement of the street was complete (a “works closed” notice).

The council’s evidence was that, as a result of complaints, various inspections were carried out and numerous defects were identified in the early part of 2005. At a joint inspection in March 2005 the defects were recorded and it was determined what remedial works were required. Despite repeated reminder notices, however, numerous defects remained outstanding by 15 September 2005, when a follow-up inspection was carried out. The remedial works had still not been completed to the requisite standard by 12 October 2005, when a further follow-up inspection was carried out. And some defects were found at yet another follow-up inspection, on 8 November 2005. Only on 14 December 2005 was it found on inspection that the defects had all been rectified to an acceptable standard. That brief chronology explains the dates in the various informations.

The first of the 7 informations alleging breaches of s.71(2) on 15 September 2005 was in these terms:

“That you did on 15 September in Watford in the County of Hertfordshire being an undertaker by whom street works were executed in Northfield Gardens Watford fail to ensure that the reinstatement of street works complied with performance standards prescribed pursuant to Section 71(2) of the New Roads and Street Works Act 1991 in that you failed to reset and grout paving stones outside house numbers 2, 3, 5, 11, 13, 16, 17, 21, 22, 24, 30, 36, 38, 45, 49, 53, 55, 57, 59, 85 and opposite house number 21 and to the side of house number 38 Northfield Gardens using paving stones of incorrect materials and dimensions leaving the paving stones rocking or uneven thereby leaving the footway in a hazardous condition

CONTRARY TO Section 71(2) and (5) of the New Roads and Street Works Act 1991.”

The allegations in the other 6 informations relating to the same subsection and same date are summarised as follows in the case stated:

“1.

Failing to replace damaged paving stones outside house numbers 3, 6, 14, 23, 28, 34, 44, 54, 55, 56, 60, 63, 65 and 81 Northfield Gardens.

2.

Failing to reset paving stones outside numbers 19, 20, 23 and 34 Northfield Gardens.

3.

Failing to re-grout paving stones outside numbers 4, 25, 26, 48, 50, 51 and 67 Northfield Gardens.

4.

Failing to reset kerb stones at the junction between Northfield Gardens and Bushey Mill Lane, Watford to the side of house number 83 and 85.

5.

Failed to relay bituminous areas of the footway outside numbers 13, 23, 25 and 55 Northfield Gardens to the correct specification.

6.

Failed to replace a damaged dropped kerbstone outside Swanley Court and Parkgate Infants School.”

The position taken in the witness statement of Mr Paul Castleman, the council’s Street Works Strategy Manager, was that the number of informations relating to 15 September 2005 could have been far greater, since “each defect equates to a separate offence”, but that “in order to reduce the number of offences, where the same defect occurred outside a number of properties, these have been collated into one offence”.

The first of the 16 informations alleging breaches of s.71(2) on 8 November 2005 was in these terms:

“That you did on 8 November in Watford in the County of Hertfordshire being an undertaker by whom street works were executed in Northfield Gardens Watford fail to ensure that the reinstatement of street works complied with the performance standards prescribed pursuant to Section 71(2) of the New Roads and Street Works Act 1991 in that a 40mm trip hazard was left adjacent to reinstated paving stones outside house number 3 Northfields Gardens leaving the footway in a dangerous condition

CONTRARY TO Section 71(2) and (5) of the New Roads and Street Works Act 1991.”

The allegations in the other 15 informations relating to the same subsection and same date are summarised as follows in the case stated:

“1.

The surface depression outside house number 12 Northfield Gardens was 12mm leaving the footway in a dangerous condition.

2.

Paving stones were left damaged and sunken outside number 6 Northfield Gardens causing a trip hazard.

3.

The surface depression outside house number 21 Northfield Gardens was 12mm and paving grouting was ineffectual leaving the footway in a hazardous condition.

4.

The kerb at the junction of Bushey Mill Lane and Northfield Gardens was left dislodged leaving the footway in a hazardous condition.

5.

The surface depression outside house number 49 Northfield Gardens was left low resulting in a 15mm trip hazard.

6.

Damaged paving stone adjacent to the boundary of house number 55 Northfield Gardens had not been replaced and its condition had deteriorated resulting in a 30mm trip hazard.

7.

A paving stone outside number 77 Northfield Gardens was not properly secured resulting in a 40mm trip hazard.

8.

A paving stone outside number 60 Northfield Gardens was not properly secured leaving the footway in a hazardous condition.

9.

The surface depression outside house number 34 Northfield Gardens was left low resulting in a 15 mm trip hazard.

10.

The bituminous footway adjacent to reinstated paving stones outside Swanley Court and adjacent to Northfield Gardens had not been replaced and the condition had deteriorated leaving the footway in a hazardous condition.

11.

The paving stones outside number 56 Northfield Gardens had not been replaced and the surface depression was reduced resulting in a trip hazard.

12.

Failed to reset paving stones to an acceptable standard outside house number 24 Northfield Gardens leaving the paving stones rocking or uneven thereby leaving the footway in a hazardous condition.

13.

Failed to reset paving stones to an acceptable standard outside house number 30 Northfield Gardens leaving the paving stones rocking or uneven thereby leaving the footway in a hazardous condition.

14.

Failed to reset paving stones to an acceptable standard outside house number 45 Northfield Gardens leaving the paving stones rocking or uneven thereby leaving the footway in a hazardous condition.

15.

Failed to reset paving stones to an acceptable standard outside house number 52 Northfield Gardens leaving the paving stones rocking or uneven thereby leaving the footway in a hazardous condition.”

The witness statement of Mr Castleman gave no explanation for the rather different, more house-specific, approach adopted in relation to 8 November as compared with that adopted in relation to 15 September.

The first of the informations alleging breaches of s.70(2) was in these terms:

“That you did between 11 February 2005 and 15 September 2005 in Watford in the County of Hertfordshire fail to comply with the requirement prescribed in Section 70(2) of the New Roads and Street Works Act 1991 in that being an undertaker by whom street works were executed in Northfield Gardens Watford … you failed to complete the reinstatement of such works with all such dispatch as is reasonably practicable

CONTRARY TO Section 70(2) and 70(6) of the New Roads and Street Works Act 1991.”

The other 2 informations under s.70(2) related to later periods of time (15 September to 12 October, and 12 October to 8 November) and alleged not simply a failure to complete the reinstatement of the works with all such dispatch as is reasonably practicable but a failure “to begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable and carry on and complete the reinstatement with all such dispatch as was reasonably practicable leaving the footway in a dangerous condition”.

Finally, the information alleging breach of s.66(1) was in these terms:

“That you did between 11 February 2005 and 14 December 2005 at Watford in the County of Hertfordshire fail to comply with the requirement prescribed by Section 66(1) of the New Roads and Street Works Act 1991 in that being an undertaker by whom street works were executed in Northfield Gardens you did not carry on and complete the works with all such dispatch as is reasonably practicable

CONTRARY TO Section 66(1) and Section 66(2) of the New Roads and Street Works Act 1991.”

The argument for the defendant before the district judge was that it was an abuse of process for the defendant to be charged under s.71(2) and (5) with numerous offences all arising on the same date at the same street location. The works in question were a single set of works. To prosecute each failure was oppressive and was a manipulation of the court process designed to expose the defendant to a far greater fine than that intended by Parliament.

The council contended that it was entitled as a matter of jurisdiction to lay the informations in the way it had, and that the number of informations was a product of the number of breaches of duty which had occurred over a significant period of time. In any given set of works there can be multiple breaches of duty, each of which amounts to a separate offence for the purposes of s.71. The number of informations laid reflected the extent of the breaches and their seriousness.

In the case stated the judge has expressed her conclusions in these terms:

“I was of the opinion that the facts alleged against [the defendant] on the two dates detailed in the summonses each constitute a single offence of failing to ensure that the reinstatement conformed to the required standard on each of the two dates. It was clear that the alleged breaches all occurred on the same date, in the same location and in furtherance of a single set of street works. I was of the opinion that it was oppressive and an abuse of process to prosecute each failing separately and that to allow the prosecution to continue on these multiple summonses would be unfair to [the defendant], not least because it would expose them to a fine far greater than parliament intended for offending of this kind.”

She has posed two questions for the opinion of this court:

“1.

Was I right to conclude that the laying of 7 informations in respect of alleged contraventions of section 71(2) New Roads and Street Works Act 1991 on 15 September 2005 was an abuse of process?

2.

Was I right to conclude that the laying of 16 informations in respect of alleged contraventions of section 71(2) New Roads and Street Works Act 1991 on 8 November was an abuse of process?”

Although the judge has asked in those questions whether she was right to conclude that the laying of multiple informations was an abuse of process, the reasons she gave for her decision were twofold - that the facts alleged constituted a single offence, and that it was oppressive and an abuse of process to prosecute each failing separately.

Mr Reed, for the council, submits that both aspects of the judge’s reasoning were wrong. Subss.(2) and (5) of s.71 cannot properly be read as allowing only one offence of failing to conform to performance standards. The standards contained within the statutory guidance are wide-ranging and there may be many breaches of duty in a large set of street works. The legislation appears to comprehend this by referring in subs.(5) to a failure to comply with “duties” under the section. If, as a matter of jurisdiction, it was open to the council to prosecute multiple offences, there was no proper basis for interfering with the informations unless the judge could properly find that the prosecutions amounted to an abuse of process on the basis of oppressiveness or unfairness. She was not entitled to dismiss the majority of the informations simply because she considered that as a matter of policy the prosecution ought to have been framed differently: DPP v Humphrys [1977] AC 1 at pp.26 and 46.

As to abuse of process, Mr Reed submits that this was a case where the laying of several informations was entirely appropriate. There were significant breaches occurring over a considerable period of time within a large stretch of road. The judge’s view that multiple informations were unfair because they would expose the defendant to a greater fine than Parliament intended was based on her erroneous view that a reinstatement could only be the subject of one offence under s.71(2). A prosecution based on two single charges under s.71(2) for a set of breaches that included safety hazards and took nearly 10 months to complete was woefully inadequate and an insufficient deterrent. In any event, if the judge felt it appropriate to limit the defendant’s liability in this case, the proper approach was to reduce the individual fines accordingly. Mr Reed submits further that the judge did not refer to any other matter that might make it oppressive to proceed on the basis of multiple informations. In particular, there was no suggestion that the defendant would be procedurally or evidentially disadvantaged by the number of informations laid.

Thus the council contends that the judge’s decision on s.71(2) should be quashed and that, since the defendant disputed the informations under that subsection only on points of law, convictions should be entered in respect of all the informations (with appropriate amendment, back to their original form, of the 2 informations which the judge allowed to proceed and to which the defendant pleaded guilty).

Mr Bradnock, for the defendant, seeks to uphold the judge’s conclusion on the basis that this was a reinstatement in respect of a single set of street works and that the failure to ensure that the reinstatement conformed to the prescribed performance standards gave rise to only one offence (though a continuing offence which could be the subject of separate prosecutions at different points in time). By issuing 7 informations in relation to alleged defects on one date and 16 informations in relation to alleged defects on another date the council was seeking to prosecute the same offence multiple times in relation to each date. That was impermissible, oppressive and unfair. The council’s stance was akin to charging with 16 burglaries a defendant who stole 16 items in the course of a single burglary. Its approach was a clear attempt to circumvent the maximum fine laid down by Parliament, and as such amounted to an abuse of the process of the court. If delay was a concern, informations could have been laid in respect of additional dates.

In my view the judge was correct to hold that breach of the duty in s.71(2) to “ensure that the reinstatement conforms to such performance standards as may be prescribed” constitutes a single offence under subs.(5) irrespective of the number of individual defects involved. The duty is to ensure that the reinstatement conforms. There is a failure to comply with that duty when the reinstatement does not conform, whether the non-conformity consists in one defect or a number of defects. It is a single failure - a single breach of duty - and a single offence. The existence of multiple defects may affect the seriousness of the offence but does not generate multiple offences. That seems to me to be the natural construction of the provision.

Moreover, to treat each and every separate defect as giving rise to a separate failure, and therefore a separate offence, would be highly artificial and cannot have been the legislative intention. The number of offences committed would then depend on difficult and potentially arbitrary judgments as to how the individual instances of non-conformity were to be defined. The problem is illustrated by the council’s view, referred to above, that the occurrence of the same defect, such as a failure to reset and grout paving stones, outside different houses on 15 September could have been charged as separate offences. If a failure to reset and grout paving stones outside no.2 is a separate offence from a failure to reset and grout paving stones outside no.3, why is a failure to reset and grout one paving stone outside no.2 not a separate offence from a failure to reset and grout another paving stone outside no.2? Indeed, why is the failure to reset not a separate offence from the failure to grout? Mr Reed’s response was that the number of different offences generated by the defects is a matter of fact and degree and subject to the judgment of the prosecutor. But I cannot accept that s.71(2) was intended to operate in such a way.

If the council’s case were correct, it would also follow that many of the individual informations laid in this case were bad for duplicity, since the council “collated” (to use Mr Castleman’s word) a number of separate offences into a single charge.

The reference in s.71(5) to an undertaker’s failure to comply with his “duties” under the section does not assist the council. On any view the section imposes more than one duty: there is a duty under subs.(1) as well as a duty under subs.(2). To suggest that, because subs.(5) refers to “duties”, subs.(2) must be read as imposing multiple duties (and seemingly, on the council’s argument, as many duties as there are instances of non-conformity) is a nonsense.

In British Telecommunications Plc v Nottinghamshire County Council (judgment of 21 October 1998) the Divisional Court considered an appeal by case stated against a conviction on 2 informations under s.71(1) and (5). One alleged a failure to comply with the prescribed requirements as to the specification of materials to be used in reinstating the street. The other alleged a failure to comply with the prescribed requirements as to the standards of workmanship to be observed in reinstating the street. Mr Reed sought to rely on this as supporting the council’s case. In my judgment, however, it does no such thing. It may be that s.71(1) creates two separate offences, the one relating to specification of materials and the other relating to standards of workmanship, which would explain the separate informations (though the court was not called upon to decide the question). But the recitation of the facts in British Telecommunications shows that each information related to multiple defects: core samples suggesting defects in materials and standards of workmanship had been taken at 6 separate points. Thus the approach taken by the authority under s.71(1) in that case was consistent with what I consider to be the correct approach under s.71(2). In any event the point falling for decision in the present case was not in issue before the court.

In Thames Water Utilities Ltd v London Borough of Bromley (judgment of 4 March 2000) the Divisional Court considered an appeal by case stated against a conviction on 16 separate informations alleging offences of failing to complete permanent reinstatement as required by s.70(4). The judgment gives little by way of factual background and, in particular, gives no indication of the number of sets of street works to which the informations related. That is of obvious relevance, since it is possible that separate breaches of the duty to reinstate may arise in relation to separate sets of street works, whereas in the present case we are concerned with the application of the duty to a single set of street works. In any event the present issue was not considered in Thames Water and in my view the case gives no assistance on it.

At the heart of the submissions for the council is a policy argument, that it is only by charging multiple offences that a sufficient financial sanction will be available to deter undertakers from taking a lax approach towards the reinstatement of the street and thereby to reduce the hazards to the public arising from delayed or defective reinstatement. It is submitted that Parliament must have intended larger fines to be available in the case of a large set of street works where there are multiple defects in reinstatement. I am not swayed by that policy argument. The intention of Parliament is to be found in the language of the statute, and I have already explained why in my view s.71(2) is to be construed as creating a single offence rather than multiple offences for a breach of duty such as occurred in this case. If the resulting sanctions are insufficient to operate as a deterrent, the remedy lies not in a distorted construction of the statute but in amending legislation.

The view I have reached on the proper construction of s.71(2) means that it was not open to the council to lay multiple informations under that subsection in relation to a single date (though the defendant has accepted that it was open to the council to lay separate informations in relation to different dates). The laying of multiple informations in respect of a single offence was an abuse of process. The judge was therefore right to rule as she did and to direct that the case should proceed on the basis of a single information in relation to each date, containing all the particulars of non-conformity relied on in respect of that date. It is unnecessary for me to consider whether the laying of multiple informations would have been open to objection as oppressive or in abuse of process if, contrary to my view, each defect had involved a separate offence.

I would therefore give an affirmative answer to each of the questions in the case stated on the s.71(2) issue, upholding the judge’s decision by reference to the first of the reasons she gave, and I would dismiss the council’s appeal on this issue.

The defendant’s contention before the judge was that s.70(2) was concerned specifically with the “reinstatement” of street works, whereas the council’s complaint related to “remedial works”. The council alleged that the defendant failed to begin remedial works with appropriate dispatch. There was no evidence of reinstatement not taking place as soon as reasonably practicable. Indeed, reinstatement was carried out in 2004 and a “works closed” notice was served. The allegations of defective reinstatement under s.71 could not have been brought were this not the case. The correct section for a prosecution based on the facts alleged would be s.71, as a continuing offence. In respect of s.70(2) and (6) there was no case to answer.

The council submitted that a “works closed” notice did not mean that reinstatement was necessarily complete. It was simply a notice to the council required by s.70(3) to inform the council that the works could thereafter be inspected. Reliance was placed on British Telecommunications as supporting the view that there was a continuing duty to reinstate properly and that s.70(2) could therefore be relied on in relation to the remedial works.

In the case stated the judge sets out her conclusion as follows:

“I was of the opinion that Section 70 should be seen to refer to reinstatement to the required standard and would therefore continue to apply after a ‘Works Closed’ notice has been served if further works are required by the authorities following inspection by them. I was of the opinion therefore that the summonses under Section 70(2) were properly brought and that the section applied to works required to be done by [the council] after the service of a ‘works closed’ notice; that there was no distinction to be drawn between works done prior to the notice being served and works later required by the authorities and described by [the defendant] as ‘remedial’ works.”

The question she has posed for the opinion of this court is:

“Was I right to conclude that there was a case for [the defendant] to answer in respect of 3 alleged contraventions of Section 70(2) New Roads and Street Works Act 1991 on dates between 11 February 2005 and 8 November 2005 on the ground that Section 70(2) can relate to delay in commencing ‘remedial’ works in the street?”

Before us, Mr Bradnock has repeated the defendant’s submissions to the judge. He says that the council has conflated the two separate concepts of reinstatement and remedial works. Reinstatement refers purely to the act of finishing street works so that the street is left in useable condition: it may be applied to the original works or to remedial works as the case may be. It is an essential part of any street works involving an excavation and cannot exist independently of such works. Remedial works, by contrast, are street works in themselves. They are necessitated by a failure of reinstatement, as s.72(2) makes clear. It is apparent from Mr Castleman’s witness statement that the council’s allegation is that the defendant failed to begin remedial works with appropriate dispatch, not that reinstatement (whether as part of the substantive works or the remedial works) was delayed. Reinstatement of the substantive works was carried out in 2004. Once a purported reinstatement has been completed, as indicated by the filing of a “works closed” notice under s.70(3), the authority is at liberty to inspect it; and if it does not meet the required standard, an offence will have been committed under s.71. That section creates a continuing offence and any delay can be reflected by the authority laying a suitable number of s.71 informations to cover the entire period for which the undertaker fails to remedy the defects in reinstatement.

Mr Bradnock further submits that if the judge’s interpretation of s.70(2) were correct, reinstatement could never be said to be complete until the “guarantee” period (i.e. the prescribed period under s.71(2)) for the work carried out had expired without further works being required – in the case of failure to meet required performance standards, two years after the “works closed” notice or two years after the authority’s requirement for further works to be undertaken, whichever is the later. Any requirement to carry out further work would prolong the guarantee period and therefore the period of reinstatement. Such an interpretation would render the “works closed” notice meaningless and would make s.71 allegations all but impossible for prosecutors to prove: if street works remained open for the purposes of s.70 even after purported reinstatement had been concluded, an allegation that the relevant standards of workmanship and materials had not been met could be successfully defended by the argument that the defects were merely temporary and reinstatement was not yet complete.

For the council, Mr Reed submits that the judge was right to consider that “reinstatement” means proper reinstatement or reinstatement not requiring remedial works; and if she was right on that, then the defendant’s case falls down, since on that basis delays in remedial works are necessarily delays in the overall reinstatement under s.70(2). First, “reinstatement” is defined in s.105(1) as including “making good”, which indicates that reinstatement is not achieved until remedial works are carried out. Second, in British Telecommunications it was held that “reinstate” means “reinstate properly” (and the same decision undermines the defendant’s argument based on the existence of the guarantee period). Third, the purpose of the section is to ensure that the completion of the relevant works is carried out in a manner to enable the proper use of the street in good time, and it is consistent with that aim that “reinstatement” should include the totality of the works required to be carried out to achieve it. Further, the issue of a “works closed” notice does not mean that reinstatement is completed, which is a question of fact. The requirement to give notice under s.70(3) is simply a mechanism to ensure that the authority is aware of the progress of the works. As to the possibility of a prosecution under s.71 for delays in remedial works, that is a tortuous means of interpreting the legislation so as to achieve a result which can be achieved more simply under s.70(2).

For my part, if I had come to this issue free from existing authority, I would have been doubtful about the correctness of the judge’s decision. In my view there is much to be said for the view that the Act provides in Part 3 a staged approach. The first stage, so far as relevant to the present dispute, relates to the execution of the street works of which notice has been given under s.54 or s.55. Where those street works are of a kind mentioned in s.66(1), there is a duty to carry on and complete the works with all such dispatch as is reasonably practicable. The next stage is the reinstatement of the street, pursuant to the duty under s.70(1). That duty is engaged as the street works are completed: the undertaker is required by s.70(2) to begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable, and then to carry on and complete the reinstatement with all such dispatch as is reasonably practicable. When the reinstatement is completed, there is a duty to inform the street authority pursuant to s.70(3). The completed reinstatement is required to meet the standards in s.71. If it fails to do so, the undertaker is liable to prosecution under that section. The street authority can carry out the investigatory works referred to in s.72(1), with the costs consequences referred to in that subsection and in s.72(2). By notice under s.72(3) the authority can also require the undertaker to carry out any necessary remedial works; and if the undertaker fails to comply with the notice, the authority can carry out the necessary works and recover from the undertaker the costs reasonably incurred in doing so. On the face of it, that is an intelligible and workable scheme, and it does not require “reinstatement” in s.70 or s.71 to be interpreted as meaning proper reinstatement or reinstatement not requiring remedial works. If the completed reinstatement is defective, remedies are available both in the form of prosecutions and in the form of the street authority’s power to get remedial works carried out.

That is not, however, the approach that has been taken in the decided cases. Of particular importance is British Telecommunications, in which the essential question for decision was whether the duty to reinstate in accordance with the specification under s.71(1) continues indefinitely so that failure to reinstate in accordance with the specification constitutes a continuing offence for which the undertaker may be prosecuted at any time until the street is reinstated in accordance with the specification. Lord Bingham CJ said that he had found this a difficult question and that his mind had altered more than once in the course of argument. On balance, however, he had concluded that there was a continuing offence, for these reasons:

“It seems to me important that the overriding 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 the undertaker is required to give notice to the street authority. 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. Mr Treacy is, I think, entitled to submit that ‘reinstate’ means ‘reinstate properly’, both because the definition section refers to the street being made good and because the code of practice which is incorporated by reference indicates that compliance with proper standards is inherent in the concept of reinstatement. It does not appear to me that section 71(2) undermines that conclusion since, although it refers to what is in effect a guarantee period, that would be applicable in a case where the work had initially been done properly but had developed defects during the two-year period.

Furthermore it seems to me very difficult, as it seemed to Henry LJ in Camden London Borough Council v Marshall, to give any effect to section 95(2) if there is not, in fact, a continuing duty. It was the language of section 376(2) that was the crucial factor leading to his decision. It seems to me difficult to construe section 95(2) on the premise that a duty ends on the completion of the 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. If further proceedings are brought after a conviction then the matter is covered by section 95(2).”

Collins J agreed, stating that the duty in s.71(1) is to reinstate properly and that “a reinstatement which is not done properly, and in respect of which there is a breach of section 71(1), can be the subject of a prosecution, notwithstanding that the contractor in question has purported to complete the reinstatement”.

In Thames Water the undertaker had informed the street authority of the completion of an interim reinstatement but had thereafter done nothing. Informations alleging failure to complete the permanent reinstatement as soon as practicable and in any event within 6 months, as required by s.70(4), were laid over a year later. The issue was whether they were out of time. The court followed the reasoning in British Telecommunications in holding that they were not. A suggestion that Lord Bingham had perhaps overlooked the significance of s.72(3) was rejected, and the reasoning of Lord Bingham in relation to s.95(2) was described as wholly convincing.

In my judgment, British Telecommunications is neither irrelevant nor distinguishable, as submitted by Mr Bradnock, and I am satisfied that this court should follow the reasoning in it. The doubts I have expressed come nowhere near satisfying the conditions set out in R v Manchester Coroner, ex p. Tal [1985] 1 QB 67, 81, for a departure by one divisional court from a prior decision of another divisional court. The fact that there are now two prior decisions and that the first of them was by a court which included Lord Bingham, and on an issue that he considered difficult, makes it all the more appropriate that a consistent line should be taken.

On that basis it seems to me that the matters relied on by the council were properly included in informations alleging a breach of the duty under s.70(2). “Reinstatement” must be given the same meaning in s.70 as in s.71, and in each case it must be taken to mean “proper reinstatement”, i.e. a reinstatement meeting the requirements of s.71. The issue of a “works closed” notice under s.70(3) marks the point where the undertaker has purported to complete the reinstatement, but the contractor’s view of the matter tells one nothing about whether there has in fact been a proper reinstatement. The reinstatement will not have been completed for the purposes of the statute unless and until it is a proper reinstatement meeting the s.71 requirements. Where it does not meet those requirements, the carrying out of remedial works to correct the defects forms part of the continuing process of reinstatement and is subject to the duty under s.70(2) to carry on and complete the reinstatement with all such dispatch as is reasonably practicable. It follows that it was open to the council to bring a prosecution on the basis that the process of reinstatement continued during the periods specified in the 3 informations and that reinstatement was not carried on and completed with all such dispatch as was reasonably practicable during those periods.

I would therefore give an affirmative answer to the judge’s question on s.70(2) and would dismiss the defendant’s appeal on this issue.

The defendant’s contention before the judge was that s.66 is designed to catch those who delay completion of existing street works rather than remedial works. The council contended that s.66(1) relates to the amount of time taken to complete the entirety of the works, from their commencement to satisfactory reinstatement.

In the case stated the judge refers to the terms of s.66(1) and s.70(1), and continues:

“Considering the wording of these two sections I was of the opinion that the use of the word ‘executed’ in section 70 indicates that section 66 applies to the actual work undertaken (i.e. in this case the digging up of the road and the replacing of the gas pipes) and that Section 70 is aimed at the work that is necessary to reinstate the road. I noted that the Section 70 summonses [the defendant] faced spanned the identical time frame as the section 66 matter.

I therefore concluded that the prosecution under section 66 was ill founded and that there was therefore no case to answer.”

The question she has posed for the opinion of this court is:

“Was I right to conclude that there was no case to answer in respect of the alleged contravention of Section 66(1) and Section 66(2) of the New Roads and Street Works Act 1991 between 11 February 2005 and 14 December 2005 on the ground that Section 66 does not relate to delays in the carrying out of remedial works in the street?”

Mr Reed submits that the judge wrongly interpreted s.66(1) in taking the view that it is restricted in its meaning to the initial street works. “Street works” is defined in s.48(1) by way of the broad purposes of the undertaker’s actions in the street, rather than by way of the particular works to the street. The “works” referred to in s.66(1) must be read in this context. There is no limitation in the subsection as to the section of works to which the requirement in s.66(1) relates. Whilst s.70(1) refers to the need to complete reinstatement with the same degree of dispatch, there is no reason why s.66(1) cannot relate to the works as a whole. Further, the judge was wrong to rely on the point that the s.66(1) offence covered the same time span as the s.70 offences: the s.70 offences did not allege delays through to 14 December 2005, and they related, individually, to only parts of the entire period covered by the s.66(1) offence. The s.66(1) offence was regarded as an overarching offence dealing with the entirety of the works in question. The laying of an information in such terms was accurate and appropriate.

Mr Bradnock supports the judge’s conclusion. He submits that s.66(1) is intended to address the problem of an undertaker who delays completion of existing street works, not an undertaker who delays commencement of remedial works, which was the substance of the allegation against the defendant. The subsection refers to “executing” street works, and it is wholly unrealistic to suggest that the defendant was executing street works in Northfield Gardens throughout the period from 11 February 2005 to 14 December 2005, when the essence of the council’s complaint is that the defendant was repeatedly failing to do so. For much of the period in question there was no notice in force indicating that street works were being undertaken and no apparatus or workers on site. Further, the council has a remedy under s.71 if reinstatement has been inadequately carried out and the commencement of remedial work is delayed: s.66(1) is not needed and is not the appropriate provision for this purpose. Even if the judge was wrong to conclude that s.66(1) is restricted in its scope to “the actual work undertaken” and has no application to the reinstatement of those works, that error would have no bearing on the facts of this case or the question of commencement of remedial works, and the ruling that the defendant had no case to answer was correct.

In my judgment the judge was correct in the conclusion she reached on this issue. As touched upon already in the context of the s.70(2) issue, it seems to me that the execution of the street works and the reinstatement of the street are separate, and that the former is governed by s.66 and the latter by s.70. The duty to reinstate under s.70 is engaged as the street works are completed. It is wrong to treat s.66 as encompassing the entire process, from the street works through to reinstatement (including remedial works): it is concerned only with the street works stage of the process.

That s.66(1) is concerned only with the “street works” is clear from its terms and from its position in the statute (under the sub-heading “General requirements as to execution of street works”). The definition of “street works” in s.48(3) does not refer to reinstatement; and the separate definition of “reinstatement” in s.105(1) does not refer to street works. They are separate concepts.

Moreover, there is simply no reason why the statute should be construed in the way suggested by the council. The avoidance of unnecessary delay in the carrying on and completion of the street works is secured by the duty under s.66(1), whilst the avoidance of unnecessary delay in the carrying on and completion of the reinstatement is secured by the duty under s.70(1). To construe s.66(1) as encompassing the reinstatement as well as the street works themselves would be to duplicate the effect of the relevant part of s.70(1).

Nothing in the previous decisions compels any different conclusion from that which I have indicated.

Again, therefore, I would give an affirmative answer to the judge’s question and I would dismiss the council’s appeal on this issue.

In the result, I would uphold the judge’s decision on all three issues and dismiss both appeals.

I agree.