Hertfordshire County Council v Veolia Water Central Ltd

Where an undertaker fails to maintain apparatus in a street, a street authority’s power to execute emergency works under section 81(4) of the New Roads and Street Works Act 1991 is not confined to apparatus requiring an inspection under regulation 3 of the Street Works (Maintenance) Regulations 1992. Regulation 4 must be read, where necessary to avoid absurdity and give effect to the legislative purpose, as requiring an inspection in accordance with regulation 3 only where appropriate. It therefore extends to visible surface apparatus, such as a manhole cover, where the authority needs no facilities from the undertaker to inspect it. If the statutory conditions are met, the authority may carry out the emergency works and recover its reasonably incurred costs under section 81(5).

The highway and street authority responded to reports of a cracked manhole cover that had caused people to trip. It placed cones and tape over the cover, arranged an expert examination and later collected the equipment after the undertaker repaired the cover.

The Deputy High Court Judge accepted that the work was emergency work, that the apparatus was not maintained in efficient working condition, and that the undertaker had breached section 81(1) of the New Roads and Street Works Act 1991. She nevertheless dismissed the authority’s claim for its costs, construing regulation 4 of the Street Works (Maintenance) Regulations 1992 as requiring an inspection under regulation 3. The central issue on appeal was whether that requirement applied where the defect was visible and no inspection facilities were needed.

1. Appeal allowed. Lord Justice Pill, with whom Lord Justices Hughes and Stanley Burnton agreed, held that the authority had power to execute the emergency works and was entitled to be indemnified for its reasonably incurred costs.
2. Section 81(3) of the New Roads and Street Works Act 1991 and regulation 3 of the Street Works (Maintenance) Regulations 1992 address cases where the authority needs facilities to inspect apparatus, particularly underground apparatus that is not observable from the street. They do not confine section 81(4) to underground apparatus.
3. Section 81(4) contemplates emergency works on apparatus above or below ground where necessary to protect the public in consequence of the undertaker’s failure to maintain it. Regulation 4 must therefore be read as referring to an inspection in accordance, where appropriate, with regulation 3, rather than exclusively to an inspection under that regulation. A request for facilities was inappropriate for a visible manhole cover, but the authority’s inspection satisfied regulation 4.
4. The interpretation was required to avoid an absurd result. The definition of relevant apparatus in regulation 2 includes manhole covers and other surface boxes, yet the respondents’ literal construction would remove surface apparatus from regulation 4 altogether. That would emasculate section 81(4) and deprive the street authority of emergency powers needed for the safety and convenience of street users.
5. Under section 81(5), works executed by a relevant authority under section 81(4) are treated as works executed by the undertaker, which must indemnify the authority for costs reasonably incurred. The court left open whether a separate damages claim for breach of section 81(1) would otherwise have been available.

• Court of Appeal (Civil Division): Appeal allowed on 27 July 2010.
• Queen’s Bench Division: Her Honour Judge Hampton, sitting as a Deputy High Court Judge, dismissed the authority’s claim on 19 February 2010: [2010] EWHC 278 (QB).