Hertfordshire County Council v Veolia Water Central Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 19 February 2010 |
| Neutral Citation | [2010] EWHC 278 (QB) |
| Date | 19 February 2010 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X03647 |
[2010] EWHC 278 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Her Honour Judge Hampton
(Sitting as a Deputy Judge of the High Court)
Case No: HQ09X03647
Matthew Reed (instructed by County Secretary's Department Hertfordshire County Council) for the Claimant
Stephen Lennard (instructed by Veolia Water Central Ltd) for the Defendant
Hearing dates: 10th & 11th February 2010
HHJ Hampton:
(Unless otherwise stated, page numbers refer to the trial bundle).
Introduction
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.
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.
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
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.
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).
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.
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.
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).
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
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.
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
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.
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.
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.
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...
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