Thames Water Utilities Ltd. v Transport for London

A statutory undertaker remains responsible for obtaining a permit for street works for which it is statutorily responsible. It cannot avoid liability for undertaking works without a permit by contractually delegating that responsibility to a contractor. A contractor may also be liable under regulation 19 of the Traffic Management Permit Scheme (England) Regulations 2007, but that additional liability does not displace the undertaker’s own responsibility. The statutory scheme, its sanctions, and the London Permit Scheme confirm that the undertaker retains responsibility as a matter of public law.

Thames Water, a statutory undertaker, was convicted in Westminster Magistrates’ Court of undertaking street works without a permit, contrary to regulation 19 of the Traffic Management Permit Scheme (England) Regulations 2007. The works were performed by a contractor after Thames Water’s applications for a permit had been refused. The contract placed responsibility for obtaining the permit on the contractor.

The District Judge held that Thames Water could still be prosecuted and imposed a fine. Thames Water appealed by way of case stated. The central question was whether a statutory undertaker could avoid liability under regulation 19 by delegating its regulatory responsibilities to a contractor.

1. Appeal dismissed. The Divisional Court answered the question stated by the Magistrates’ Court in the affirmative: a statutory undertaker cannot avoid liability under regulation 19 by delegating its responsibilities under the Traffic Management Permit Scheme (England) Regulations 2007 and the London Scheme to a contractor.
2. Regulation 19(1), read according to its ordinary meaning, makes it an offence both for a statutory undertaker and for a person contracted to act on its behalf to undertake specified works without a permit. Although a contractor may perform the physical works, the statutory undertaker undertakes works for which it has statutory responsibility. It therefore remains liable even if a contractor is also liable.
3. Regulation 18 supports that construction. It permits remedial notices to be directed to a person undertaking works without a permit, but provides for recovery of remedial costs from the statutory undertaker. The term “undertake” should have a consistent meaning in regulations 18 and 19.
4. The London Scheme places permit obligations on the statutory undertaker. A contractor may apply as the undertaker’s agent, but the undertaker cannot divest itself of its public-law responsibility by contract. This reading accords with the regulatory purpose of improving the management and co-ordination of street works.
5. The inclusion in regulation 19 of a contractor as an additional possible defendant expands enforcement. It does not permit the undertaker to escape liability. That conclusion is also consistent with the distinction between the notice regime under Part 3 of the New Roads and Street Works Act 1991 and the permit regime established under the Traffic Management Act 2004.

Lord Justice Laws agreed, particularly emphasising the clarity of regulation 19(1).

• Westminster Magistrates’ Court: District Judge Barron convicted Thames Water under regulation 19 and imposed a fine of £850.
• High Court (Administrative Court): The appeal by way of case stated was dismissed.