The court held by a majority only that the deeming provision applied to all works, and that its aim was to ensure that a statutory undertaker such as Transco did not obtain extra time by doing street works badly within the time originally allowed and then obtaining a second period of time to finish the same work without penalty. The court also held, however, that the deeming effect was rebuttable by production of evidence of the actual finishing time, as it would be improper for the draftsman to have inserted provisions designed to impose a sanction on a vastly greater scale than the criminal sanction authorised by statute and imposed by the Regulations for failure to give timeous notices.
*Full case details
Transco Plc vs Leicestershire County council, 15 October 2003, Court of Appeal, Lord Phillips of Worth Matravers MR, Kennedy LJ, Jacob LJ
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The drafting of the statutes and regulations came in for heavy criticism from the Master of the Rolls, and Lord Justice Kennedy pronounced part of a Code of Practice issued by the Department of Environment, Transport and the Regions on the subject to be wrong in law. The outcome of the case is good news for utilities and other statutory undertakers who need to dig up roads in order to gain access to their plant, as their liability for failure to serve timeous works closure notices can be limited to the much smaller criminal sanction if they can show that in reality the works were completed within the statutory prescribed - or a reasonable - period. It is frustrating for the highway authorities, who will have to do reality checks behind the notices they receive before attempting to levy charges against statutory undertakers. It will also be an embarrassment for government draftsmen and will surely prompt a review of the codes of practice in current use in respect of the New Roads and Street Works Act 1991 and related statutes.