Statutory construction of s101 of the 1991 Act meant that express incorporation of s13 of the 1976 Act into the 1992 and 1993 Acts ceased to have effect by virtue of the 1991 Act, subject in the case of the 1993 Act to there being no “contrary intention”. When London Underground promoted the 1992 and 1993 Acts the effect of s101 of the 1991 Act on the incorporation of s13 of the 1976 Act would have been obvious. As there was no evidence to suggest that Thames Water had relied on the incorporation of s13 of the 1976 Act, no intention that s13 of the 1976 Act should apply notwithstanding s101 of the 1991 Act could be implied or inferred.
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The court found that the 1991 Act was meant to provide a complete code for street works and cover any claims for compensation they gave rise to. It was intended that this would be the only provision regulating street works and that earlier special enactments, such as s13 of the 1976 Act, would cease to have effect. It further provided that unless a contrary intention appears, any such special enactment made after the 1991 Act would not have effect. The 1991 Act was enacted after the 1992 Act but before the 1993 Act. The effect of s101 on the express provision of the 1992 Act was therefore clear, but in respect of the 1993 Act, the court had to decide whether a “contrary intention” appeared to the effect that s13 of the 1976 Act should continue to apply. The judge found that there was no express contrary intention in the 1993 Act and rejected Thames Water’s contention that a contrary intention could be inferred from the fact that London Underground had themselves promoted the 1992 and 1993 Acts with s13 of the 1976 Act expressly included. The case thus provides an example of the complications and pitfalls that arise where an arrangement is governed by an Act of Parliament rather than by a contract between the parties. Thames Water sought to avoid the problem altogether by relying on some 19th-century authorities that suggested that the promoter of private legislation is bound by the terms of a private Act of Parliament, which should be construed as being akin to a contract, but the judge was not satisfied that the authorities supported such an approach in this case. Thames Water also sought to argue that the express inclusion of s13 of the 1976 Act amounted to a representation that London Underground would pay them in accordance with the terms of this section notwithstanding any legislation to the contrary, but they did not support this with any evidence that they had not opposed the relevant legislation in reliance upon such a representation. London Underground relied upon s20(2) of the Interpretation Act 1978, the effect of which, in the absence of a contrary intention, was to make the incorporation of s13 of the 1976 Act subject to any amendment to that section – in this case, subsequent legislation that rendered it without effect. The judge had to take account of the intentions of Parliament as well as the intentions of the parties, and was unwilling to infer any intentions on the part of the parties that conflicted with the intentions of Parliament for this and related matters. The case therefore urges caution and careful investigation where payment depends upon a statutory provision rather than a term of a contract entered into by the parties independently of the will of Parliament. The same caution applies to the scope of any new legislation. Although the 1991 Act referred to “street works”, the effect of s48(3) combined with s105(2)(3) meant that the court held that the Act could also apply to major transport works. If major transport works affected streets they would come under the definition of street works and the 1991 Act would apply.