British Telecommunications Plc v Nottinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE COLLINS |
| Judgment Date | 21 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1021-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/1694/98 |
| Date | 21 October 1998 |
[1998] EWCA Civ J1021-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
and
Mr Justice Collins
CO/1694/98
MR JEREMY CARTER-MANNING QC and MR MARK BRYANT-HERON (instructed by BT Group Legal Services, Milton Keynes) appeared on behalf of THE APPELLANT
MR C TREACY QC (instructed by the Solicitor to Nottinghamshire County Council) appeared on behalf of THE RESPONDENT
Wednesday 21 October 1998
BT appeals by case stated against its conviction by the Stipendiary Magistrate for the County of Nottingham under two informations preferred against it by the Nottingham County Council as prosecutor.
The first information alleged that between 30 January and 28 July 1997, at Worksop, BT, as an undertaker, having executed street works in Claylands Avenue, Worksop, in 1994, on 30 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 New Roads and Street Works Act 1991 as to the standards of workmanship to be observed in reinstating the street contrary to sections 71(1) and 71(5) of the 1991 Act.
The second information was in identical terms, save that it referred to the specification of materials to be used in reinstating the street instead of the standards of workmanship to be observed in reinstating the street.
The facts were not in issue before the stipendiary magistrate, and as helpfully summarised by him were as follows. BT in the course of its business caused an excavation of a footpath in a street at Claylands Avenue, Worksop, in February and March 1994 and purported to reinstate on completion of its work. In December 1996 an employee of the County Council found a depression in the reinstated area and gave notice to BT to make good the repairs to an acceptable standard. BT denied that it was liable to do so. On 30 January 1997 the County Council took core samples along the stretch of repaired footpath at six points. Analysis of the samples suggested defects in materials and standards of workmanship which had been in existence since the reinstatement of the footpath in February 1994. The defects complained of included insufficient compaction of the in-fill material, insufficient depth of suitable materials, and presence of other inappropriate material in the reinstatement, making the repairs in breach of the statutory provisions and codes of practice.
BT declined to undertake the work required to make good the reinstatement, and summonses were issued on 28 July 1997. The sole argument between the parties, as the stipendiary magistrate records, was in relation to the limitation of time for the laying of these informations in summary proceedings. BT relied on section 127(1) of the Magistrates' Courts Act 1980, and contended that the stipendiary magistrate could not try the informations because they 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 County Council submitted that the informations had been laid within the six-month time limit. It was that submission which the stipendiary magistrate accepted.
The New Roads and Street Works Act 1991 contains a number of provisions which bear on the present question. By section 68(1) an undertaker executing street works is obliged to afford the street authority reasonable facilities for ascertaining whether he is complying with his duties under that Part of the Act, and it is an offence if an undertaker fails to afford the street authority such facilities. It is not in doubt that in this case BT were for the purposes of the Act an undertaker and the County Council were the street authority.
Section 70 is also of relevance and contains the following subsections:
"(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.
…."
Section 71, under which these informations were laid, provides:
"(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."
We are told, and it is common ground, that the period prescribed for the purposes of section 71(2)(b) is two years.
By subsection (4) of section 71 the Secretary of State is empowered to
"issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsections (1) and (2); and regulations made for the purposes of the subsection may provide that—
(a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duties under this section; and
(b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with those duties."
Subsection (5), the penal provision, reads:
"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."
Section 72 empowers the street authority to carry out such investigatory works, as appears to the authority to be necessary to ascertain whether an undertaker has complied with his duties under the Act, and (putting the matter shortly) the cost of that investigation is borne by the undertaker if he is found to be in breach, and by the County Council if he is not.
Attention must be drawn to section 95 of the Act, which provides as follows:
"(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."
Our attention has also been drawn to section 105(1) where "reinstatement" is defined to include "making good" and we have also been referred to a code of practice issued by the Secretary of State under section 71 of the Act for the reinstatement of openings in highways, which defines "permanent reinstatement" as meaning "the orderly placement and proper compaction of reinstatement layers up to and including the finished surface level".
The County Council rely on the statutory provisions in particular, but also on decided cases to support their construction that section 71 created a continuing offence where reinstatement was carried out and completed, but improperly completed because of a failure to use proper materials or standards of workmanship. It was this argument which the stipendiary magistrate accepted, and he posed three questions for the opinion of the court:
"(a) Whether Section 71 New Roads and Street Works Act creates a continuing offence?
(b) Whether I was entitled to hear and determine the specific informations laid?
(c) (If it is not a continuing offence), whether the six month limitation of time for laying an information runs from the date the offence was committed (ie the time the defective reinstatement was effected) or from the date of the discovery?"
Whether a statutory provision creates a continuing obligation such that failure to comply with it creates a continuing offence necessarily depends on the language of the provision in question and on its correct construction. For that reason it seems to me that caution is called for when applying the observations in one case with reference to one statute, to different provisions of a different statute in another case. However, Mr Carter-Manning QC, representing BT, as a general principle, draws our attention to an observation made by Croom-Johnson J in R v Wimbledon Justices, ex parte Derwent [1953] 1 QB 380, where at page 390 he said:
"As a general rule, the court is not, I think, eager to find continuing offences created by a statute, and certainly not without express words which make clear that that was the intention of the legislature when the statute was passed."
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