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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Telecommunications Plc v Nottinghamshire County Council [1998] EWHC Admin 989 (21 October 1998) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/989.html Cite as: [1998] EG 147, [1999] Crim LR 217, [1998] EWHC Admin 989 |
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1. MR
C TREACY QC (instructed by the Solicitor to Nottinghamshire County
Council)
appeared on behalf of THE RESPONDENT
2. THE
LORD CHIEF JUSTICE: 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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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.
10. We
are told, and it is common ground, that the period prescribed for the purposes
of section 71(2)(b) is two years.
13. 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.
15. 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".
16.
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:
17.
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:
18. That
seems to me to be consistent with the general approach in these matters that
conduct is not to be criminalised unless Parliament has made plain its
intention that it should.
19.
The first of the cases to which we have been referred is
Hodgetts
v Chiltern District Council
[1983] 2 AC 120. In that case the informations preferred by the council
against Mr Hodgetts alleged a breach of section 89(5) of the Town and Country
Planning Act 1971, the terms of which are recited by Lord Roskill in his speech
at page 127. Subsection (5) read:
21. That
is a passage to which attention has repeatedly been paid in later cases, but it
is in my judgment important to bear in mind that it is all with reference to
the giving of notices telling someone either to do or stop doing something.
22.
The second case which has been extensively discussed before us is
Camden
London Borough Council v Marshall
[1996] 1 WLR 1345. This concerned the exercise by a local authority of its
powers under the Housing Act 1985 in relation to premises in multiple
occupation. Under section 352 of that Act the local authority had power to
require certain works to be done. The case turned in large measure on the
terms of the penal section, which is section 376 which, as amended, read:
26. He
then referred to section 89(1) of the 1971 Act. He made reference to Lord
Roskill's speech in the passage at page 128A-C and commented:
27. The
County Council place particular reliance on that case because of the analogy
between section 376(2) and the reference in section 95(2) to the continuation
of a duty after conviction.
28.
We were also referred to
Hertsmere
Borough Council v Alan Dunn Building Contractors Ltd
(1985) 84 LGR 214. In that case the penal provision was section 4(6) of the
Public Health Act 1961, which provided:
29. The
council laid a large number of informations against the contractor, alleging
breaches of regulations A10 and A11 of the Building Regulations 1976. The
gravamen of their complaint was that the building contractors carried out work
in about 1982 and the early part of 1983, but failed to deposit plans or give
notices as required by the regulations. It was common ground in the case that
all the relevant works had been begun and ended more than six months before the
informations were laid, and accordingly the application of section 127 of the
1980 Act was again central to the argument.
30.
After extensive reference to authority Neill LJ, giving the first
judgment, referred at some length to
Hodgetts,
which he described as giving guidance of general application, and he said:
31. That,
as I repeat, was a conclusion reached in relation to a failure to deposit plans
or give notices as required by the regulations, and those were obligations
which had to be performed by a clear and discernible deadline.
32.
The last authority to which we have been referred in detail is
Torridge
District Council v Turner
(1991) 90 LGR 173. The penal provision was contained in section 35 of the
Building Act 1984, which provided:
33. That
section was invoked in relation to an alleged breach of the Building
Regulations 1985, which alleged that the builder had used or allowed others to
use an agricultural exhibition centre and farm produce unit contrary to the
1985 Regulations and section 35 of the Act. It is plain from the judgment
given by Woolf LJ, in particular, that the court found the possible application
of section 127 problematical on the facts of the case before them. With the
benefit of the guidance given both by
Hodgetts
and
Hertsmere,
however, the court came to the conclusion that it was a one-off offence and not
a continuing offence. With reference to
Hertsmere
Woolf LJ said at page 183:
34. Woolf
LJ went on to find reinforcement for his conclusion in the practical
consequences which would follow if another construction were adopted.
35.
By analogy Mr Carter-Manning for BT submits that this case is of
assistance to him since he argues in reliance on it that his offence was
complete when the reinstatement was completed and that there was no continuing
duty thereafter. Mr Treacy QC, on the other hand, draws attention to the terms
of the regulations and suggests that there was no finite moment at which the
duty was to have been completed.
36.
It is necessary after that excursus into the authorities to remind
oneself of the particular provisions with which this appeal is concerned. 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
the 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 with the specification so that an offence is
committed then and any information must be laid within six months of the
purported completion?
37.
I for my part have found this a difficult question and my mind has
altered more than once in the course of argument. On balance, however, I have
concluded that the stipendiary magistrate reached the correct answer. 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.
38.
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 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.
39.
I do not for my part regard this case as closely analogous with the
cases in which a party is required to give a notice, or do a single act like
depositing a plan, which can much more readily be regarded as a one-off act.
Nor does it seem to me that the power of the local authority to investigate
under section 72 of the Act is inconsistent with a continuing duty, not least
because the power to investigate is itself without limit of time.
40.
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).
41.
Accordingly, in relation to the questions asked by the stipendiary
magistrate, I would answer question (a) in paragraph 7: "Yes". I would give
the same answer to (b). The question posed in (c) does not arise.
42. MR
JUSTICE COLLINS: I agree. This case underlines the importance of considering
and construing the particular statutory provisions applicable. The cases which
have been cited have dealt with other statutory provisions and are as it seems
to me of limited value. It is dangerous to draw conclusions relating to case A
from provisions in statutes which cover different fields and are dealt with in
case B.
43.
Having said that, there are principles which may be of general
application and may assist in the construction in any individual case. Here
one has to consider what it is that the duty involves and, like my Lord, it
seems to me clear that the duty is to reinstate properly. Thus 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.
44.
That being so, the description of the nature of this duty as a "do
provision" (which is the description that Mr Carter-Manning seeks to apply to
it) may be misleading if by "do provision" one means a provision which does not
create a continuing offence. In one sense this is a "do provision" in that it
is an obligation to do something, but in making his observations, which my Lord
has already cited in
Torridge
District Council v Turner
,
it seems to me quite plain that Woolf LJ was referring only to a duty which was
to be completed within a specified time. Furthermore, the conclusions which
follow upon which Mr Carter-Manning particularly relies and which my Lord has
cited, must be read in the context of the precise duty which was in issue. It
is not altogether easy to discover exactly what that was, not least because the
prosecuting authority had chosen to prosecute for the wrong offence. But the
obligation in question was to carry out building work so that it did not
adversely affect the safety of the building. Accordingly in that case the duty
was breached once the building was completed in the offending manner. It is
easy in those circumstances to see why in
Torridge
it was possible for the court to construe the duty as not being a continuing
one.
45.
The situation here, as my Lord has said, is quite different. In those
circumstances I have no hesitation in finding that this was indeed a duty which
continued and thus the stipendiary magistrate was correct. For those reasons,
in addition to those given by my Lord, I agree with his conclusions.
46. MR
TREACY: My Lord, I would ask you to make an order for costs in favour of the
respondent, to be taxed if not agreed?
50. MR
CARTER-MANNING: My Lord, may I raise the observation that your Lordship has
made: "I have found this a difficult question and my mind has changed more than
once".
51. MR
CARTER-MANNING: My Lord, we would obviously be anxious to consider your
Lordship's judgment. Might I return to this court, if it is felt appropriate,
to invite your Lordship to certify?
52. THE
LORD CHIEF JUSTICE: I think it is much more satisfactory to deal with it now.
I think we shall probably not give leave.
58. THE
LORD CHIEF JUSTICE: Does this suffice: "May an information against an
undertaker alleging a breach of section 71(1) of the New Roads and Street Works
Act 1991 be laid more than six months after completion of works of
reinstatement of a street which do not comply with the undertaker's
obligation?"
61. THE
LORD CHIEF JUSTICE: We shall certify that question, Mr Carter- Manning, as a
question of general public importance. We shall refuse you leave to appeal,
and leave you to go to their Lordships for leave.