Leicestershire County council (LCC) charged Transco Plc (Transco) the sum of £111,500 for six separate failures to complete under-street works to gas pipes on time. Transco was required by statute to give a notice when its works were complete, and it had failed to do so, although it gave notice of registration some time later in accordance with a code of practice published by the government. LCC treated the works as having continued until the date of these notices and imposed penalty charges on the basis that the works were deemed completed at the date of the registration notices under the relevant Regulations. Transco refused to pay, claiming that in one case it never even commenced the works and that in the other five, it had actually completed the works within the “reasonable” period allowed by the Regulations, and simply failed to serve its notice to that effect. Proceedings were issued in the High Court and a judge determined two preliminary issues in LCC’s favour. Transco appealed the judge’s decision in the Court of Appeal.
The court had to determine whether the deeming provision contained in the Regulations as to the date on which works were to be regarded as complete had any application to works that were not remedial in nature, and even if it did, whether the deeming effect was conclusive or rebuttable.

Reference

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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Postscript

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.