Power to charge statutory undertaker for late completion of street works - regulation deeming works to continue until works clear or works closed notice served applicable only to remedial works - deeming provision rebuttable

Leicestershire County Council v Transco plc: CA (Lord Phillips of Worth Matravers, Master of the Rolls, Lords Justice Kennedy and Jacob): 4 November 2003

The council claimed against a statutory undertaker charges for the alleged late completion of non-remedial street works, levied pursuant to its statutory powers under the New Roads and Street Works Act 1991 and the Street Works (Charges for Unreasonably Prolonged Occupation of the Highway) (England) Regulations 2001 made thereunder.

The undertaker denied that they were liable for any charges since, although they had failed to give any 'works clear notice' or 'works closed notice' under regulation 4(3)(4) in respect of the works, they had in fact completed the works within the 'reasonable period' allowed by regulation 5(1).

On a trial of preliminary issues the judge held that regulation 5(6), which provided that works were deemed to continue until a works clear or a works closed notice had been given, applied to all street works, not merely to remedial works; and that the deeming effect of regulation 5(6) was irrebuttable.

The statutory undertaker appealed.

Javan Herberg (instructed by Osborne Clarke, Bristol) for the statutory undertaker; James Ramsden (instructed by the County Solicitor, Leicestershire County Council, Leicester) for the council.

Held, allowing the appeal, (Lord Phillips of Worth Matravers, Master of the Rolls, dissenting) that regulation 5(6) of the 2001 regulations applied only to remedial works; and that, in any event, the deeming provision in regulation 5(6) was rebuttable, not irrebuttable.

Powers - panel recommending plans to identify locations for gypsies - local authority failing to adopt appropriate procedure for rejecting recommendation

R (Butler) v Bath and North East Somerset District Council and others: CA (Lords Justice Peter Gibson, Waller and Carnwath): 30 October 2003

A panel established to examine the previous policy of the local authority and three other unitary authorities for providing sites for gypsies and travellers in their area, after conducting inquiries in public, recommended the authorities to produce local plans to identify suitable locations in their area for gypsy community and travellers.

The defendant authorities in response to the recommendation produced plans to 'set out polices' to secure appropriate site provisions for gypsies and travellers.

The claimant's appli-cation to quash that policy on the ground that it did not adopt the recommendation of the panel was dismissed.

The claimant appealed.

Timothy Jones (instructed by Community Law Partnership, Birmingham) for the claimant; Nathalie Lieven (instructed by East Somerset District Council) for the local authorities.

Held, allowing the appeal, that national policy had drawn a clear distinction between the identifi-cation of actual locations, and the setting of policy criteria; that the preference was for the former, since the panel had taken the view that existing criterion-based policies had failed to meet the needs of the gypsy community, and that more was needed by way of guidance when they recommended for local plans to identify suitable locations; that the policy plans produced by the defendants to 'set out policies' was a deliberate departure from the recommendation; and that, although the defendants could decide not to accept the recommendation of the panel, their failure to publish a list of recommendations which they did not intend to accept and to invite objections and representations from the public, as required by regulation 15(4) of the Town and Country Planning (Development Plan) (England) Regulations 1999 (SI 1999/3280), made the plans invalid.