2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Redrow, a house builder, appealed a decision that allowed a local council to require payment for future maintenance of street lighting in a section 38 agreement under the Highways Act 1980. The court upheld the previous ruling, interpreting section 38(6) as allowing such provisions in agreements, maintaining that this wide and unqualified language includes future maintenance expenses.
Judgment
Master of the Rolls:
The appellant (“Redrow”) is a house builder. On 7 February 2011, it was granted outline planning permission to carry out a development of 525 dwellings on land at Huyton near Liverpool. The first phase of the development includes estate roads constructed by Redrow. The normal course with such developments is that the roads when constructed become public highways maintainable at the public expense. This result is usually achieved by the mechanism of an agreement made between the developer and the local highway authority under section 38 of the Highways Act 1980 (“the 1980 Act”) whereby (i) the roads are dedicated and adopted as public highways and (ii) they become highways maintainable at the public expense.
In the present case, both Redrow and Knowsley Metropolitan Borough Council (“the Council”) as the highway authority wish in principle that this should occur. A part of the roads will be street lighting. The Council says that it will not enter into an agreement under section 38 unless it contains a provision that Redrow pays at the date of the agreement £39,000 which is a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The Council says that such a provision in a section 38 agreement is lawful by reason of the word “maintenance” in section 38(6) and that maintenance refers to and includes future maintenance of the road following its adoption. Redrow says that no such provision may lawfully be included in a section 38 agreement.
Mr Michael Fordham QC (sitting as a Deputy Judge of the High Court) held that the Council’s interpretation of section 38(6) was correct. He granted a declaration that:
“on the correct interpretation of section 38(6) of the Highways Act 1980, a section 38 agreement, including when made under section 38(3), can in law contain provision for the party other than the highway authority to pay a sum (whether a commuted sum or otherwise) referable to the expenses of a highways maintenance after the date on which it becomes maintainable at public expense.”
Redrow appeals with the permission of Laws LJ. The present case relates only to street lighting and a relatively small sum. But the issue of statutory interpretation is of wide importance. It is perhaps surprising that there is no previous authority on it. Mr Barnes QC points out that, if the judge’s interpretation is correct, then section 38 agreements may lawfully contain a provision fo