Thames Water Utilities Ltd v London Underground Ltd

The Court of Appeal held that Part III of the New Roads and Street Works Act 1991 (the 1991 Act) forms a comprehensive code for street works and, by section 101, displaces earlier special enactments so far as they regulate the execution of street works in a manner inconsistent with that Part. The court decided that works authorised by the London Underground Act 1992 and the London Underground Jubilee Act 1993 were 'street works' within the meaning of the 1991 Act (including as 'major transport works'), so that the protective and cost‑sharing regime under the 1991 Act and its regulations applies rather than the express incorporation of section 13 of the London Transport Act 1976 into the 1992 and 1993 Acts. Section 101 therefore ceased to give effect to the inconsistent provisions of the 1992 Act on its commencement and required the 1993 Act to be construed so as to avoid inconsistency.

Background and parties. London Underground Limited (LUL) constructed the Jubilee Line Extension, works that affected sewers belonging to Thames Water Utilities Limited (TWUL), in particular Low Level Sewer No 1. TWUL claimed compensation under the London Underground Act 1992 and the London Underground Jubilee Act 1993 as incorporating section 13 of the London Transport Act 1976. LUL contended that the New Roads and Street Works Act 1991 governed the compensation regime.

Procedural posture. A preliminary issue was tried in the Queen's Bench Division before Douglas Brown J, who held that the 1991 Act applied. TWUL appealed to the Court of Appeal.

Nature of the issue and relief sought. The question was whether section 101 of the 1991 Act operates to displace the effect of the express incorporation of section 13 of the 1976 Act into the 1992 and 1993 Acts. TWUL sought a conclusion that the 1992 and 1993 Acts, by incorporating section 13 of the 1976 Act, entitled TWUL to the indemnity‑style compensation it sought; LUL sought a conclusion that compensation is governed by the 1991 Act and associated regulations and codes.

Issues framed by the court.

• Whether the 1992 and 1993 Acts were special enactments displaced by section 101 of the 1991 Act in respect of street works.
• Whether the Jubilee Line works were "street works" (including "major transport works") within the meaning of the 1991 Act.
• Whether any contrary intention in the 1992 or 1993 Acts prevented displacement by section 101.
• Whether statutory provisions should be construed as if they were contractual promises (private Act construction).

Reasoning and conclusion. The court examined the structure, definitions and purpose of Part III of the 1991 Act and concluded it was designed to be a comprehensive code for street works. The definitions in the 1991 Act show that "major transport works" and "major highway works" fall within the statutory concept of "street works". Section 101 operates to cause earlier special enactments regulating street works inconsistently with Part III to cease to have effect from its commencement; the court held that the 1992 Act therefore ceased to apply to street works on that date. As to the 1993 Act enacted after section 101 came into force, the court held that its express incorporation of section 13 of the 1976 Act is to be read "with necessary modifications" so as to avoid inconsistency with Part III and that no contrary intention appears. The court rejected treating the private Acts as akin to contracts for construction purposes. The appeal was dismissed.

This is an appeal from the Queen's Bench Division. The Court of Appeal dismissed the appeal. It held that Part III of the New Roads and Street Works Act 1991 is a comprehensive code for street works and, by section 101, displaced earlier special enactments so far as they regulated street works inconsistently with that Part. The Jubilee Line works were "street works" (including as "major transport works"), so the 1991 Act and its regulations govern the protective measures and cost‑sharing; the 1992 Act ceased to have effect for street works on commencement of section 101 and the 1993 Act must be read so as to avoid inconsistency with Part III. The court refused to apply a contractual mode of construction to the private Acts.

Appeal from the Queen's Bench Division (Douglas Brown J: preliminary issue decided 15 July 2003 in favour of the 1991 Act). The present decision of the Court of Appeal ([2004] EWCA Civ 615) dismisses the appellant's challenge to that decision.