High Court dismisses challenge to local authority policy restricting the installation of private apparatus in the highway

18 Feb 2019

Public Law and Judicial Review

Street works licencing – policy – local authority refusing licence for installation of LPG apparatus in the highway – consistency of policy with statutory scheme – rationality – policy held to be lawful.

Mr Justice Dove has dismissed a challenge to a highway authority’s policy containing a presumption against the installation of private longitudinal apparatus in a street. Part III of the New Roads and Street Works Act 1991 allows highway authorities to licence the installation of apparatus such as gas pipes and electricity cables in the highway. Statutory undertakers have the right to install their apparatus in the highway, but private (i.e. non-statutory) bodies do not.

Instead they must seek a street works licence. Norfolk County Council has a policy that it will not licence the installation of private longitudinal apparatus in a street unless (a) there is no impediment to highway use, (b) there is a genuine public need for the apparatus, and (c) it is not possible to locate the apparatus on neighbouring land. This policy was challenged by Calor Gas Limited, which specialises in the supply of liquefied petroleum gas.

It was argued by CGL that the Council’s policy was contrary to the statutory scheme, which (it was said) sought to treat statutory and non-statutory undertakers alike. It was also said that the policy was irrational. In dismissing this challenge, Dove J held that there was a material difference between statutory and non-statutory undertakers.

The statutory scheme operated in the interests of safety, to minimise the inconvenience to persons using the street, and to protect the structure of the street and the integrity of apparatus in it, and the Council’s policy was consistent and rationally connected with these factors.

Robin acted for Norfolk County Council.

You can read the judgment here.