Calor Gas Ltd v Norfolk County Council

A highway authority may adopt a restrictive policy governing licences for private longitudinal apparatus under the New Roads and Street Works Act 1991. The policy must remain consistent with the statutory purpose and rationally connected to the authority’s duties, including public safety, coordination of street works and protection of the highway. A policy is not unlawful merely because it makes permission exceptional, provided that genuine exceptions can be considered. The authority may distinguish between statutory and non-statutory undertakers where statutory undertakers operate under a different regulatory and financial regime. Industry guidance supporting a particular installation method does not prevent the authority from adopting a broader safety policy addressing detectability, excavation risks and the status of the apparatus.

Calor Gas Ltd challenged Norfolk County Council’s policy concerning private longitudinal apparatus in highways. The policy sought to avoid such apparatus in new developments, allowing it only where there was no impediment to highway use, a genuine public need, and no possibility of locating it on neighbouring land.

The challenge alleged that the policy frustrated the statutory scheme for street works licences under the New Roads and Street Works Act 1991 and was irrational. The central issues were whether the policy made the installation of private longitudinal apparatus impossible and whether its safety rationale was rationally connected with the statutory scheme.

1. Claim dismissed. The Council’s policy governing applications for section 50 street works licences was lawful.
2. The discretion under section 50 was widely expressed and guided by the general duties in section 59. Those duties provided the statutory coordinates for the exercise of the Part III powers, including safety, minimising inconvenience and protecting the highway and apparatus.
3. The Council was entitled to publish a policy. Although highly restrictive, the policy did not impose an absolute prohibition. Applying the principle that a policy need not spell out the possibility of exceptions, it required a clear and specific justification for private longitudinal apparatus. Circumstances such as the absence of available neighbouring land or significant planning or environmental constraints could justify an exception.
4. The policy had a rational connection with the statutory purpose. Longitudinal private apparatus might be difficult to discover through ordinary utility searches and might lack physical features identifying its location. Excavation of non-passive apparatus such as LPG pipes created significant safety risks, particularly against the background of extensive excavation works in highways.
5. Industry guidance did not establish that a common service trench in the highway was the only safe installation method. The evidence showed that installation on private land was technically possible and not prohibited by the guidance. The Council was entitled to consider not only detailed design, but also detectability, the nature of the apparatus and the risks associated with private ownership.
6. The different treatment of statutory and non-statutory undertakers was justified. Statutory undertakers operated under licensing, financial and regulatory controls which did not apply to a private applicant before the grant of a section 50 licence. Licence conditions could not realistically reproduce that regulatory regime.