BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thames Water Utilities Ltd v London Borough Of Bromley [2000] EWHC Admin 301 (4 March 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/301.html
Cite as: [2000] EWHC Admin 301

[New search] [View without highlighting] [Printable RTF version] [Help]


THAMES WATER UTILITIES LTD. v. LONDON BOROUGH OF BROMLEY [2000] EWHC Admin 301 (4th March, 2000)


Case No: CO/4600/99
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
DIVISIONAL COURT
CROWM OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 4 March 2000
B e f o r e :
LORD JUSTICE SCHIEMANN
MR. JUSTICE DOUGLAS BROWN


THAMES WATER UTILITIES LTD.

Appellant


- v-



LONDON BOROUGH OF BROMLEY

Respondent


- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

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)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©



LORD JUSTICE SCHIEMANN:


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 Act is expressed in wholly general terms and without any qualification whatever as to time, albeit it the undertaker is required to give notice to the street authorities. 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........ It seems to me very difficult..... to give any effect to section 95(2) if there is not, in fact, a continuing duty...... It seems to me difficult to construe section 95(2) on the premise that a duty ends on the completion of 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."
So far as the present case is concerned we can take the first summons as a paradigm. The appellant repaired its mains on the 11th February of 1998. On that very date it completed the reinstatement informing the street authority that the reinstatement was interim. Pursuant to s.70(4) it should have completed permanent reinstatement as soon as reasonably practicable and in any event within 6 months. However, it did nothing. The Street Authority likewise did nothing until, we are told, 21st. April 1999 when the information was laid. The date of the offence alleged in the information is given as on and after the 25th of August 1998.
The Magistrates, like this Court in the British Telecom case, found that section 95(2) pointed to the continuance of the duty imposed by section 70 and that in consequence the undertaker could be prosecuted at any time until the street was permanently reinstated.
Mr. Geoffrey Stephenson, in his elegant submissions, made the following points. First, the 1991 Act creates a number of separate offences in each sub-section and imposes civil as well as criminal liabilities. Second, each such offence provision needs to be separately construed. Third, there is no reason in logic or as a matter of construction that all offences should be continuing or all once and for all offences. Fourth, the Court should not strain towards a construction of the relevant subsection which would have the result of maintaining a liability to be prosecuted in a Magistrates Court for more than six months after such a prosecution might have been launched.
Mr. Mark Lowe, Q.C., taking the British Telecom case as having been rightly decided, submits that if the applicant succeeds in the present case then two anomalies will arise. First the undertaker who fails to complete works of permanent reinstatement simpliciter commits a continuing offence and may be prosecuted at any time whereas the undertaker who first undertakes interim works may not be prosecuted for any failure to carry out the permanent reinstatement after the expiry of the relevant period. Second he submits that it must be the appellant's case that, although it may be prosecuted under section 71(1) for a failure to execute interim works to the required standard at any time (see British Telecom) it commits no offence in respect to the failure to complete the permanent reinstatement of the street after the expiry of the six months commencing with the completion of the interim works. Further he draws attention to the fact that section 70(4) imposes upon the undertaker a duty to complete the permanent reinstatement of the street as soon as reasonably practicable; the six month period is merely a long-stop. He posits the situation where the undertaker fails to complete within the six months provided for in section 70(4) and where the authority lay an information three months thereafter. He suggests that, if the appellant is right in the present case, an undertaker would be able to lead evidence that the permanent reinstatement of the street could have been achieved within three days of the interim reinstatement. Then, on the appellant's argument, the information would not have been laid within the six months referred to in the Magistrates Court Act. He submits that the court should be slow to assume that Parliament intended to confer an immunity from prosecution in such circumstances.
Mr Stephenson analysed the speech of Lord Bingham in British Telecom with care. He pointed out that s.70(1) and s.71(1) impose a civil duty breach of which entitles the Street Authority to carry out the work at the undertaker's expense - see s.72(3). He suggested that Lord Bingham had perhaps overlooked this when he attached importance to the absence of any reference to time in those two sub-sections. It is perfectly possible to have a continuing civil duty and yet prevent prosecutions after 6 months.
For my part, I find the reasoning of Lord Bingham in relation to s.95(2) wholly convincing. I therefore see no reason to try and distinguish the case. To do so would add yet further complexities to an area of the law which already abounds in them. Mr Stephenson cited a number of cases in which similar problems under different Acts of Parliament have been considered - Hodgetts v Chiltern District Council [1983] 2 A.C. 120, Hertsmere Borough Council v Alan Dunn Building Contractors Ltd. (1985) 84 L.G.R. 214 (D.C.), Camden B.C. v Marshall [1996] 1 W.L.R. 1345 (D.C.) and Torridge D.C. v Turner (1991) 90 L.G.R. 173. Each of these cases is considered in the judgment of Lord Bingham CJ in the British Telecom. The only one upon which I propose to stay is the first, which was decided by the House of Lords.
In Hodgetts' case the appellant council preferred informations against George and Helena Hodgetts under section 89(5) of the Town and Country Planning Act 1971. The information alleged that he/she had on and since May 27th 1980 permitted land and buildings to be used for the purposes of an office and storage of builders' materials in contravention of an Enforcement Notice served pursuant to section 87 of the Act. The Crown Court was persuaded that section 89 (5) created a continuing offence which occurred and repeated itself during the period of default and that since the information related to more than one day they were bad for duplicity. There was authority to that effect and the Divisional Court set in train a leap-frog appeal to the House of Lords which in due course over-ruled that authority. Lord Roskill delivered the leading speech in which he said at p. 127G:
"Section 89 deals with penalties for non-compliance with two classes of enforcement notices: (a) those, dealt with in sub-sections (1) to (4), which require the owner of land to do something on it ("do notices"), and (b) those, dealt with in sub-section (5), which require the user of land to stop doing something on it ("desist notices"). As respect each of these classes of notice the section creates two types of offences (i) an initial offence created by sub-section (1) and by the first limb of sub-section (5) down to the semi-colon, respectively; and (ii) what is described as a "further offence" which is created by sub-section (4) and by the second limb of sub-section (5) after the semicolon, respectively, and (sc. which) can only be committed by a person who has already been convicted of the corresponding initial offence.
It is not an essential characteristic of a criminal offence that any prohibited act or omission in order to constitute a single offence, should take place once and for all on a single day. It may take place, whether continuously or intermittently, over a period of time. The initial offence created by sub-section (1) in the case of non-compliance with a "do notice", is complete once and for all when the period for compliance with the notice expires; but it is plainly contemplated that the further offence of non-compliance with a "do notice" created by sub-section (4), though it too is a single offence, may take place over a period of time, since the penalty for it was made depended on the number of days on which it takes place.
Similarly, as respect is non-compliance with a "Desist Notice", it is in my view clear that the initial offence (as well as the further offence) though it too may take place over a period, whether a continually or intermittently (e.g. holding a Sunday Market), is a single offence and not a series of separate offences committed each day that the non-compliance prior to the first conviction for non-compliance continues. If it were otherwise it would have the bizarre consequence that upon summary conviction a fine of £400 per diem could be imposed for each such separate offence committed before the offender received his first conviction, whereas for any further offence committed after the offender against a "desist notice" had been convicted, a daily fine of only £50 could be inflicted. Uniquely a previous conviction would be a positive advantage to the offender. This can hardly have been in Parliament's intention."
Mr Stephenson relies upon the obiter dicta of Lord Roskill in the second paragraph cited above in which he says that the initial offence in the case of non-compliance with a "do" notice is complete once and for all when the period for compliance with the notice expires. Mr Lowe draws attention to the statement in the same paragraph that it is not an essential characteristic of a criminal offence that any prohibited act or omission in order to constitute a single offence should take place once and fore all on a single day. I personally do not find Hodgett's case of any great assistance. Each statute imposes its own regime and the Planning Act's regime is different from the Street Works Act. For these reasons I forbear from an examination of the other cases he cited all of which were decided under other statutes.
As it seems to me this court ought to follow the reasoning in British Telecom which has the advantage that it was recently decided under the relevant Act and that we ought to avoid the anomalies to which Mr Lowe has drawn our attention.
I would dismiss this appeal and answer the magistrates question, namely does s.70(4) of the 1991 Act create a continuing offence, in the affirmative.


MR JUSTICE DOUGLAS BROWN :- I agree.


© 2000 Crown Copyright


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/301.html