Case No: B2/2009/0061

Neutral Citation Number: [2009] EWCA Civ 708
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE-ON-TRENT
(HIS HONOUR JUDGE RUBERY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 11th June 2009

Before:

SIR ANDREW MORRITT, CHC
LORD JUSTICE KEENE
and
LORD JUSTICE ELIAS
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Between:

	INFOLINES PUBLIC NETWORKS LTD	
Appellant	
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NOTTINGHAM CITY COUNSEL	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr T Gosling (instructed by DWF Solicitors) appeared on behalf of the Appellant.
Ms O Chaffin-Laird (instructed by Legal Services, Litigation Section) appeared on behalf of the Respondent.
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Judgment
Lord Justice Keene:

1.	This appeal raises a short point on the interpretation of the New Roads and Street Works Act 1991 (“the 1991 Act”).  Amongst other things, the 1991 Act deals with the relationship between the street authority which, in the case of a maintainable highway, is the highway authority, and those bodies which provide apparatus in the street such as telephone kiosks, the apparatus concerned in the present case.  The appellant was such a body, an “undertaker”, in the statutory terminology, owning and operating a number of payphone kiosks in the City of Nottingham.  The respondent was the relevant street authority.  The appellant was under a statutory duty by virtue of section 81(1) of the 1991 Act to maintain the kiosks to the reasonable satisfaction of the street authority.  Section 81(4) and (5) state as follows:

“(4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section --

(a) the road works authority may in such cases as may be prescribed, and

(b) any other relevant authority may in any case,
execute any emergency works needed in consequence of the failure.

(5) The provisions of this Part apply in relation to works executed by a relevant authority under subsection (3) or (4) as if they were executed by the undertaker; and the undertaker shall indemnify the authority in respect of the costs reasonably incurred by them in executing the works.”

2.	What is meant by “emergency works” in that provision is covered by section 52, which provides:

“(1) In this Part ‘emergency works’ means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.

(2) Where works comprise items some of which fall within the preceding definition, the expression ‘emergency works’ shall be taken to include such of the items as do not fall within that definition as cannot be reasonably be severed from those that do.

(3) Where in any civil or criminal proceedings brought by virtue of any provision of this Part the question arises whether works were emergency works, it is for the person alleging that they were to prove it.”

3.	The present case concerns two telephone kiosks located in the City Centre of Nottingham: one on Clinton Street and one on South Parade.  When inspected by an officer of the respondent’s Highways Department in early 2007, they were found to be damaged in a number of respects; windows were broken, crossbars damaged, doors damaged and so on.  The judge before whom this litigation came in December 2008, at Stoke on Trent County Court -- HHJ Rubery -- found that the respondent had sent a letter to the appellant, dated 20 April 2007, requiring it to make the kiosks safe and then to repair them.  It may be that the appellant did not receive this letter, but in any event nothing was done to the kiosks to put right the defects.  Eventually the council fenced the two kiosks off with plastic netting for safety reasons.  This took place on 22 June and 8 June 2007 respectively.  On 29 June 2007 the respondent’s workmen removed the kiosks and their contents, and it seems that they were then disposed of.  No notice of the proposed removal or of the proposed disposal was given by the respondent to the appellant.  The respondent brought a claim under section 81(5) for the costs of executing these works and, although at trial the appellant sought to contend that the removal of the kiosks and contents was not required as emergency works, the judge found against it on that issue.  He found that both kiosks were in a condition likely to cause danger to persons or property.  Consequently, he gave judgment in favour of the respondent on its claim to recover its costs.  There is now no dispute that the council was entitled to remove the kiosks by means of emergency works.  

4.	The issue on this appeal concerns the appellant’s counterclaim, which arises out of the council’s disposal of the kiosks and their contents after they had been removed from the street.  The council returned to the appellant the money found in the coin-boxes of the telephone equipment within the kiosks.  As I have said, it disposed of the kiosks and the telephone apparatus which had been contained therein.  The appellant’s counterclaim for the loss resulting from that disposal was dealt with briefly, perhaps surprisingly briefly, by the judge, who initially seems to have regarded it as covered by his finding that the kiosks were in a condition justifying emergency works.  It was rather in a lengthy subsequent discussion between both counsel and the judge over whether permission to appeal should be granted that he gave as his reason for dismissing the counterclaim the absence of evidence as to the viability or cost of repairing the kiosks, except for the evidence of the appellant’s managing director, Mr Pearson, that he believed that they could be repaired.  It should also be noted that the evidence from the council’s inspecting officer was that both kiosks were “operational” in terms of the telephone apparatus within them when they were last inspected before being fenced off.  

5.	The appellant now contends that the judge was wrong to dismiss the counterclaim.  On its behalf Mr Gosling submits that, while the removal of the kiosks could properly fall within the scope of “emergency works” as defined in section 52(1), the disposal of them and their contents did not.  Once the kiosks had been disconnected and removed from the highway, any risk of danger to persons or property had ceased.  Mr Gosling tells us, and it would seem obvious as a matter of common sense anyway, that Mr Ceeney, an officer of the council who gave evidence, accepted in cross-examination that that was in fact the case.  Consequently, it is argued that the emergency had then passed and there was no requirement to dispose of the kiosks and their contents in order to protect the public.  Mr Gosling also makes the point that the act of disposal could reasonably be severed from the works of the removal of the kiosks.  He argues that the council is therefore not assisted by subsection (2) of section 52, the terms of which I have set out earlier.  The result is, in consequence, he submits, that the disposal of these items is not rendered lawful by the council’s statutory powers and the disposal must constitute a wrongful interference with the appellant’s goods, in the old terminology, “a conversion”.  That is not overcome by the judge’s reference to the condition of the kiosks and the lack of evidence about the cost of reusing them or the telephone apparatus.  Mr Gosling emphasises that the telephone apparatus was still operational and still had a value.  

6.	The council’s response is in part to emphasise the need to remove the kiosks and then to argue that their disposal could not reasonably be severed from that removal.  Ms Chaffin‑Laird, on the council’s behalf, acknowledges that the works of disposal would not in themselves fall within the terms of section 52(1), but she contends that the council was entitled to dispose of them under section 52(2), contending that that brings the works of disposal within the definition of emergency works.  She emphasises that the appellant was given notice of the lack of repair on these telephone kiosks, although she does accept that that was notice given before the removal of the kiosks from the street and that no notice of disposal was ever given to the appellant.  However, she submits that sub‑section (2) of section 52 should be given a reasonably broad interpretation, enabling the street authority to do whatever is reasonable once the danger to the public has been dealt with.  She argues that the disposal of these kiosks, given their condition, falls within such a definition of reasonable conduct.  It is also argued that, given the state of the kiosks, the costs of storage of them would have been disproportionate.

7.	It seems to me that one needs to analyse this case under the two statutory ways in which works can qualify as emergency works, those two ways being contained in the first two subsections of section 52.  It is quite clear that the disposal of these kiosks and contents cannot be brought within section 52(1), and the respondent does not suggest that it can.  The disposal, as opposed to removal, was not:

“…required in order to put an end to, or to prevent the occurrence of, circumstances […] likely to cause danger to persons or property.”

Removal from the street was patently sufficient to remove that risk of danger, and certainly the council did not call evidence to discharge the burden of proof to the contrary, as would have been required by section 52(3).  So the disposal of these items was not “emergency works” under section 52(1).  

8.	As I have indicated, the main thrust of the council’s case before this court has focused on subsection (2) of that section, namely that the works of disposal could not, it is said, “reasonably be severed” from the works which truly fell within section 52(1), the works of removal from the street.  For my part, I simply cannot see how that argument can succeed.  There was no problem of physical severance of the works of disposal from those of removal, nor were the two activities so closely or necessarily linked in time that they could not reasonably be severed.  The evidence, as I have indicated, was that the council had the opportunity to take out the money from the coin-boxes and to return it to the appellant.  Putting it at its lowest, there was no evidence from the council on which a court could have found that the burden of proving that disposal could not reasonably have been severed from the street removal had been discharged.  

9.	I, for my part, would reject Miss Chaffin‑Laird’s approach to the interpretation of section 52(2) and the very broad meaning which she would attribute to it.  One is dealing here with emergency powers which are provided to an authority in order to protect the public.  Those powers enable the authority to interfere with somebody else’s property. In a situation such as that, it seems to me that one should interpret the wording which the legislature has seen fit to include in this Act in a straightforward and certainly reasonably restrictive fashion.  It certainly does not, in my view, entitle the council simply to do anything which it regards as, or which may subsequently be seen as, reasonable if the works could have been severed.  The word “severed” is there in the subsection clearly quite deliberately.  That being so, the disposal of the kiosks and equipment did not fall within the scope of emergency works by virtue of subsection (2).  It follows from that that the disposal of these items was not given legitimacy under any statutory provision.  

10.	The Act, in these circumstances, did not empower the council to dispose of the items free from civil liability.  The kiosks and the contents were, after all, the property of the appellant.  It seems to me that such a disposal must amount to a wrongful interference with goods, for which a claim in damages will lie.  It was a form of conversion: see Torts (Interference with Goods) Act 1977, section 1.  What the scale of the damages will be cannot be ascertained by this court, but I do not accept that it can be said that there was no evidence that there was a commercial loss resulting from the disposal.  The evidence to which I have referred earlier indicates that there would have been such a loss, particularly in relation to the telephone apparatus; but whether the loss is substantial or not remains to be seen.  

11.	I would emphasise that none of what I have said means that the street authority is obliged or expected to store removed apparatus indefinitely after exercising its section 52 powers in circumstances such as the present.  Storage itself is likely to place a financial burden on the street authority and may cause other problems for it.  What the authority should do in such a case is to give notice to the owner that it has removed the apparatus and will dispose of it by a specified and reasonable date if the apparatus is not collected by then.  If, in that situation, the owner fails to collect the apparatus, any loss resulting from its disposal will have been caused by the owner’s inaction and could not be recovered by him (see the judgment of Lord Goddard, CJ, in Sachs v Miklos [1948] 2 QB 23 at page 40 -- a case of bailment, but one sufficiently analogous, in my view, to provide a practical guide in the present circumstances).  

12.	In the present case the council did not inform the appellant of the removal of the kiosks before it disposed of them, nor did it give a notice of the kind which I have just described.  Thus it remains the case that, the disposal not being authorised by the 1991 Act, the council remains liable for any loss caused by that disposal.  I, for my part, would allow the appeal and remit the case to the county court for damages to be assessed if this matter cannot be settled by agreement, which I would strongly hope it can.

Sir Andrew Morritt: 

13.	I agree.

Lord Justice Elias: 

14.	I also agree.

Order:  Application allowed