Hertfordshire County Council v National Grid Gas Plc

Under section 71(2) of the New Roads and Street Works Act 1991, failure to ensure that a single reinstatement conforms to prescribed performance standards constitutes one offence, regardless of the number of defects. Multiple informations cannot be used to multiply the offences arising from that single failure.

“Reinstatement” in sections 70 and 71 means proper reinstatement meeting the section 71 requirements. Remedial works therefore form part of the continuing reinstatement process and may fall within section 70(2). Section 66 concerns the execution of street works, whereas section 70 concerns reinstatement; section 66 does not extend to delay in remedial reinstatement works.

Hertfordshire County Council prosecuted National Grid Gas plc in relation to defective and delayed reinstatement following gas-main works in Northfield Gardens, Watford. The District Judge held that multiple section 71(2) informations relating to the same date constituted an abuse of process, that section 70(2) continued to apply during remedial works, and that section 66(1) did not apply to reinstatement.

The Council appealed the rulings on sections 71(2) and 66(1). National Grid appealed the ruling on section 70(2). The Divisional Court considered whether the defects constituted multiple offences, whether remedial works fell within the continuing duty to reinstate, and whether section 66 applied beyond the initial street works.

1. Section 71(2). The Council’s appeal was dismissed. The duty is to ensure that the reinstatement conforms to prescribed performance standards. Non-conformity, whether consisting of one defect or many, is one failure of that duty and one offence under section 71(5). The number and seriousness of defects may affect sentence, but do not create separate offences.
2. It would be artificial to leave the number of offences to arbitrary judgments about how defects should be divided. Multiple informations concerning the same single set of street works and the same date therefore amounted to prosecuting one offence multiple times and were an abuse of process. One information could properly contain all the particulars relied upon for that date.
3. Section 70(2). National Grid’s appeal was dismissed. Following British Telecommunications Plc v Nottinghamshire County Council and Thames Water Utilities Ltd v London Borough of Bromley, “reinstatement” means proper reinstatement. A works-closed notice records the undertaker’s purported completion, but does not establish that the statutory requirements have been met.
4. Where reinstatement is defective, remedial works form part of the continuing process of reinstatement. The duty under section 70(2) therefore requires those works to be begun, carried on and completed with all such dispatch as is reasonably practicable.
5. Section 66(1). The Council’s appeal was dismissed. The execution of street works and the reinstatement of the street are separate stages. Section 66 governs the former, while section 70 governs the latter. Section 66 does not encompass delay in carrying out remedial reinstatement works, and extending it to the whole process would duplicate section 70.
6. Both appeals were dismissed and the District Judge’s decisions on all three issues were upheld.

1. Watford Magistrates’ Court. On 12 January 2007 the District Judge ruled that the section 71(2) informations should be restricted to one information for each date, that the section 70(2) proceedings should continue, and that there was no case to answer under section 66(1).
2. High Court (Administrative Court). The Divisional Court answered all three questions affirmatively, upheld the District Judge’s rulings and dismissed both appeals.