Hertfordshire wins "make safes" appeal

Hertfordshire County Council has won an appeal over charges highway authorities can levy against utilities after judges decided the wording of regulations was defective.

The case began when the council made safe a manhole cover in Rickmansworth belonging to the water company Veolia, after members of the public complained they had tripped over it.

It sought to charge Veolia £335.31 for the cost of a repair team visiting the site, cordoning it off and erecting warning cones.

Last March Judge Hampton said she was driven “reluctantly” to rule in Veolia’s favour under the New Roads and Street Works Act 1991 and the Street Works Maintenance Regulations 1992.

This was because the wording of the regulations allows an authority to execute emergency works only where it has made an inspection “where they have reasonable cause to believe, by reason of subsidence or disturbance of the road surface, that the undertaker's apparatus has not been maintained as required by that subsection”.

Since the manhole cover was not underground and did not cause subsidence or disturbance the regulations did not apply, Veolia argued. The company also claimed that Hertfordshire Highways’ costs were too high.

Lord Justice Pill, who noted the case concerned “an issue which is likely to arise frequently”, said the court should read the regulation “in a way which avoids absurdity, having regard to the legislative purpose”.

“There is no sensible reason why the power to execute emergency works should not cover works on the surface, where no facilities for inspection are required from the undertaker,” he noted.

Stuart Pile, executive member for highways and transport at Hertfordshire CC, said the council was delighted with the decision.

"The ramifications for taxpayers would have been great as these repairs cost us over £100,000 a year, plus around 80% of highway authorities claim costs from utility companies in this way,” he said.

“At a time when resources are so tight, it's a great relief that the public sector will not have to foot the bill for private repairs. It's a victory for common sense as this could have cost taxpayers across the country millions.”

Pile said the council would seek to recover its costs, which are estimated at £110,000. The Court of Appeal ruled that Veolia Water would have to pay the county council's costs, subject to assessment.