Thames Water Utilities Ltd v London Borough of Bromley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN |
| Judgment Date | 04 March 2000 |
| Judgment citation (vLex) | [2000] EWHC J0304-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 March 2000 |
| Docket Number | Case No: CO/4600/99 |
[2000] EWHC J0304-3
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
DIVISIONAL COURT
CROWM OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Schiemann
Mr. Justice Douglas Brown
Case No: CO/4600/99
GEOFFREY STEPHENSON (instructed by Legal Department, Thames Water for the Appellant)
MARK LOWE Q.C. & IAN ALBUTT (instructed by Legal Department London Borough of Bromley, Parker, Arrenberg, Dawson, Co for the Respondent)
Statutory undertakers have various rights to carry out street works in order to ensure the proper functioning of their undertaking. They are supposed to reinstate the street as soon as is reasonably practicable. They do not always do that. The Defendant Thames Water Utilities is a statutory undertaker and it failed to reinstate the street. The Respondent Street Authority has the task of policing these duties and they laid informations against Thames Water charging 16 separate offences of failing to complete permanent reinstatement of the streets as required by section 70(4) of the New Roads and Street Works Act 1991. Thames Water accept that they had failed as alleged but it relied on section 127 of the Magistrates Court Act 1980 as depriving the magistrates of jurisdiction to try any of the 16 informations. The magistrates nonetheless convicted. Before the Court is Thames Water's appeal by way of Case Stated.
Section 127(1) provides:
…….. "A magistrates' court shall not try an information or hear a complaint unless the information was laid …. within 6 months from the time when the offence was committed ……."
The issue in the present appeals is 'when were the offences charged committed?'. There is no dispute as to the facts. The determinative question is : what facts amount to the commission of the offence charged?
The relevant sections of the street works code are now contained in sections 70, 71, 72, and 95 of the 1991 Act. These provide as follows:
s. 70(1) It is the duty of the undertaker by whom street works are executed to reinstate the street.
(2) He shall begin the reinstatement as soon after the completion of any part of the street works as is reasonably practicable and shall carry on and complete the reinstatement with all such dispatch as is reasonably practicable.
(3) He shall before the end of the next working day after the day on which the reinstatement is completed inform the street authority that he has completed the reinstatement of the street, stating whether the reinstatement is permanent or interim.
(4) If it is interim, he shall complete the permanent reinstatement of the street as soon as reasonably practicable and in any event within six months (or such other period as may be prescribed) from the date on which the interim reinstatement was completed; and he shall notify the street authority when he has done so.
……
(6) An undertaker who fails to comply with any provision of this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7)……………………….
s. 71(1) An undertaker executing street works shall in reinstating the street comply with such requirements as may be prescribed as to the specification of materials to be used and the standards of workmanship to be observed.
(2) He shall also ensure that the reinstatement conforms to such performance standards as may be prescribed -
(a) in the case of interim reinstatement, until permanent reinstatement is effected, and
(b) in the case of permanent reinstatement, for the prescribed period after the completion of the reinstatement.
(3)………….
(4)………….
(5) An undertaker who fails to comply with his duties under this section commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
s. 72(1)…………..
(2)…………………
(3) The street authority may by notice require an undertaker who has failed to comply with his duties under this Part with respect to reinstatement to carry out the necessary remedial works within such period of not less than 7 working days as may be specified in the notice.
If he fails to comply with the notice, the authority may carry out the necessary works and recover from him the costs reasonably incurred by them in doing so.
(4)……………
(5)…………..
s. 95(1) Any provision of this Part imposing criminal liability in respect of any matter is without prejudice to any civil liability in respect of the same matter.
(2) Where a failure to comply with a duty imposed by this Part is continued after conviction, the person in default commits a further offence.
The only case on these sections to which we have been referred is an unreported case British Telecommunications Plc v Nottinghamshire County Council decided by this Court (Lord Bingham of Cornhill C.J. and Collins J. on 21st October 1998 reference CO/1694/98). The information in that case alleged that British Telecom having executed street works in 1994 on 30th January 1997 and thereafter did fail to comply with the requirements prescribed in the specification for the reinstatement of openings in highways made under section 71 of the 1991 Act as to standards of workmanship to be observed in reinstating the street contrary to sections 71(1) and 71(5) of the 1991 Act. It was argued on behalf of British Telecom that section 127(1) of the Magistrates Courts Act 1980 deprived the Magistrate of jurisdiction because the information had not been laid within six months from the time the offences had been committed, which had been in early 1994. The County Council on the other hand contended that the offences were continuing offences, continuing so long as the defective reinstatement remained unrectified. Accordingly the Council submitted that the informations had been laid within the six months time limit. That submission was accepted by Stipendiary Magistrate who was upheld by this Court.
Lord Bingham C.J. said this:
"If an undertaker reinstates a street using materials or workmanship which do not comply with the specification, does the duty to reinstate in accordance with this specification continue indefinitely so that his failure to reinstate in accordance with the specification constitutes a continuing offence for which he may be prosecuted at any time until the street is reinstated in accordance with the specification? Or is the offence complete when the undertaker reinstates otherwise than in accordance to the specification so that an offence is committed then and any information must be laid within six months of the purported completion?…… It seems to me important that the over-riding duty to reinstate in section 70(1) of the...
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