Thames Water Utilities Ltd v London Underground Ltd

Part III of the New Roads and Streetworks Act 1991 establishes a comprehensive code for the street works within its scope. Major highway works and major transport works are categories of street works and may overlap. An inconsistent special enactment is displaced for street works under section 101. This applies both to an earlier Act incorporating an indemnity and to a later Act containing the same incorporation where necessary modifications are required. Section 69 provides protective duties and criminal sanctions, not a compensation mechanism. Section 85 enables prescribed cost-sharing. Private Acts should not be treated as contracts where the statutory language creates no relevant ambiguity.

Underground construction authorised by the London Underground Act 1992 and the London Underground Jubilee Act 1993 disturbed a sewer maintained by Thames Water Utilities Ltd. The parties accepted that compensation was payable but disputed the governing statutory regime. London Underground Ltd relied on Part III of the New Roads and Streetworks Act 1991; Thames Water relied on the indemnity regime incorporated from section 13 of the London Transport Act 1976.

On a preliminary issue, Douglas Brown J held that the 1991 Act applied. The appeal concerned whether section 101 displaced or modified the incorporated indemnity provisions, including in relation to the later 1993 Act.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. The appellant was ordered to pay the respondent’s costs, and leave to appeal to the House of Lords was refused.
2. Scope of Part III. Part III of the New Roads and Streetworks Act 1991, together with regulations and codes of practice made under it, was intended to provide a comprehensive code for street works. Its structure, language and purpose show that major highway works and major transport works are categories of street works and are not mutually exclusive. The works in question fell within section 48(3), since they involved apparatus and associated excavation, tunnelling or boring.
3. Protective measures and costs. Section 69 imposes duties concerning monitoring, protection and access, backed by criminal sanctions. It does not establish a compensation procedure. Section 85 is an enabling provision for sharing allowable costs as prescribed. The Street Works (Sharing of Costs of Works) Regulations 1992 form part of the statutory regime.
4. Effect on the 1992 Act. The 1992 Act was a special enactment passed before Part III commenced. When section 101 came into force on 1 January 1993, its inconsistent provisions ceased to have effect in relation to street works, but not otherwise. The references to the 1991 Act in the 1992 Act confirmed that Parliament was aware of the statutory scheme.
5. Effect on the 1993 Act. The incorporation of section 13 of the 1976 Act into the 1993 Act, expressly made with necessary modifications, did not disclose a contrary intention under section 101. The 1993 Act therefore had to be construed consistently with Part III in relation to street works. The court also rejected construing the private Acts as contracts; the authorities relied on for that approach were not in point.

• Court of Appeal (Civil Division) [2004] EWCA Civ 615: dismissed the appeal and refused leave to appeal to the House of Lords.
• Queen’s Bench Division: Douglas Brown J decided on 15 July 2003, on a preliminary issue, that the New Roads and Streetworks Act 1991 governed the compensation assessment.