By: tewsolictors

Judicial Review is a legal remedy that is frequently mentioned in respect of challenging decisions by public sector bodies. Whilst it certainly has its place in the lawyer’s tool box, it is a process that must be approached with some caution.

As a remedy, Judicial Review is principally aimed at ensuring that bodies exercising public law functions exercise those functions lawfully and fairly and do not abuse their powers. It is possibly less concerned about the actual merits of the decision that was reached and more concerned with the process that was adopted to reach that decision.

In terms of where Judicial Review sits in a lawyer’s tool box, it may be seen as more a tool of last rather than first resort. Generally speaking all other challenge and/or appeal routes against the decision in question need to be exhausted before one can turn to Judicial Review. An application for Judicial Review is also subject to stringent time limits so one has to be careful about ensuring that all necessary steps are complied with as promptly as possible.

In the ordinary course of events the initial application to Court will be for permission to proceed with the Judicial Review, which can and will face detailed scrutiny. Only if the permission stage is successfully passed will the Judicial Review proceed to full hearing.

Whilst the outcome of a Judicial Review may be in an applicant’s favour, it is also possible that the decision making body might subsequently make a similar decision but this time correctly based and justified. It is therefore always important to take a strategic approach to Judicial Review.

We regularly advise parties on challenging the decisions of public law function exercising bodies and Judicial Review.

Contact us if you want to discuss challenging public sector decision making processes and Judicial Review.

The ongoing UK broadband roll out is providing real opportunities for existing and new companies in the telecoms sector.

Whilst companies can undertake many aspects of work without  having powers under the Electronic Communications Code (“Code Powers”), holding or obtaining Code Powers is likely to play a significant part in whether a new entrant can compete on a level playing field.

The Electronic Communications Code is contained within Schedule 3A to the Communications Act 2003. What it does is confer certain rights on a party that is granted Code Powers by Ofcom.  These rights include, amongst other things:

  • exemptions from certain aspects of planning requirements that may otherwise apply for the placing of telecoms apparatus;
  • rights to place and maintain electronic communications apparatus and infrastructure within the public highway; and
  • means to facilitate access to private land for the placing and maintaining of electronic communications apparatus and infrastructure.

Ofcom’s own website also provides some useful information on the Electronic Communications Code.

We regularly:

  • advise companies on whether they are eligible to secure Code Powers;
  • apply to Ofcom and secure Code Powers for companies; and
  • advise new and existing Code Power operators on the extent and operation of their Code Powers and their wider regulatory responsibilities.

Contact us if we can assist you in respect of the Electronic Communications Code.

Whilst there have been very significant increases in street works compliance by utility companies and their contractors over the years, the financial and reputational risks posed to utility companies by certain street works related criminal offences has dramatically increased in recent years. This is as a result of the “uncapping” of level 5 offences brought about by the implementation on 12th March 2015 of s.85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. For anyone wanting to know the detail, the implementing legislation was the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 11) Order 2015 (SI 2015/504).

The upshot of “uncapping” is that the previous maximum fine of £5,000 that applied to level 5 fines was removed and the level of fine that the Magistrates’ Court might impose is now effectively unlimited.

Before the “uncapping” of level 5 fines, a bad day in Court on a level 5 capped street works offence was unlikely to prove too financially painful – in the greater scheme of things. That is no longer the case. A bad day in Court on something that 5 years ago might have attracted a £3,000 fine might today see a utility company be sentenced to a considerably larger fine. Whilst it has taken a few years for fines to increase, fine ‘inflation’ has been significant in some parts of the country for even relatively minor non-compliances.

There are steps that an undertaker can take to mitigate the risks that its street work activities may pose. These include:

  • Ensuring that all internal and contractor staff have an appropriate understanding of the legal obligations that street works legislation imposes;
  • Self auditing of works being done by you and on your behalf and ensuring all non-compliances are promptly identified and rectified; and
  • Responding promptly and effectively to any report of problems with a site or works.

Our team has extensive experience of advising undertakers on street works compliance and defending related criminal prosecutions.

Do contact us if you think we can assist in reducing your legal risks from street works.

Growth in the multi utility provider sector has created a situation that the original drafters of the s.50 of the New Roads and Street Works Act 1991(“NRSWA”) possibly did not envisage.

This possible stretching of the original drafting does create potential issues for multi utility and other providers when seeking to install apparatus in the street where that apparatus is not being installed under an existing statutory right. It can also create issues where a multi utility provider does hold a statutory right to install one supply. The holding of a statutory right in respect of, say, gas as an Independent Gas Transporter will not, of itself, provide a statutory right to install water, electricity or telecoms apparatus.

Unlike a party with a statutory right to install apparatus in the street, a party wishing to install utility apparatus in the street who does not hold that right is left having to secure a s.50 licence from the street authority.

The most frequently encountered problem by parties seeking s.50 licences are the terms demanded by the street authority. The cause of this is that there is not a right to a s.50 licence. S.50(1) of NRSWA confers a discretion on a street authority as to whether it grants a s.50 licence by its use of the wording “The street authority may grant a licence…..” (our emphasis added).

That discretion is not an absolute one. Like all authority decision making, the discretion must be exercised reasonably. Any unreasonable exercise of the discretion by a street authority may leave the authority open to Judicial Review.

We advise multi utility providers on s.50 licence issues. We also challenge authority decision making processes where that is the appropriate course of action.

Contact us if you would like to discuss how we might assist you in respect of s.50 licences.

Being as keen on bacon sarnies as the next person and also seeing the real benefit of seeking to resolve disputes at an early stage, we take no issue with sorting out disputes over a bacon sarnie. Likewise, if your tastes run to chocolate biscuits with settlement discussions, we’re still completely on side. We’ll add the dull (but necessary) caveat about gifts and hospitality policies being complied with in terms of who is giving/receiving what.

One thing we are less certain of is whether all such discussions set off on the firmest of footings – particularly in respect of the legitimacy of the charges being discussed.

It’s obviously a great result for the paying party if they manage to successfully negotiate a claim down to a fraction of its original value. If however there was no legitimate charge there in the first place but you have agreed to paying 10% of the claimed charge, it may look less of a deal.

Placed in the context of low margins in the sector and those margins potentially getting smaller the further down the contractual chain one goes, a £10,000 payout on a s.74 charge could seriously dent the financial viability of the ultimate paying party. It’s obviously a great result if the charge is legitimately payable but has been successfully negotiated down. It’s a less great result if that charge should never have been accepted in the first place – even if it was successfully negotiated down.

Bearing in mind the significant sums that might fall to be decided over the bacon sarnies, we think there is real merit to going through all the individual charges with the proverbial fine tooth comb. If a proportion of them can be booted into touch before the bacon sarnies invite gets sent or the choccie biscuits bought, the base line for settlement discussions might significantly change.

From our own experience of advising on prolonged occupation charges, one of the key issues is the timely collation of factual information about the job in question relevant to how and why a job may have taken the time that it did. Collating that information as the job progresses so that it is all immediately accessible 12 months later when people are actually looking seriously at the charge makes things far easier than for the person charged with dealing with the dispute having to try to piece together what went on and why. Having all that information to hand may make the difference between nothing being paid out and several thousand being paid.

That a street authority may want you to pay them several thousand pounds for something they perceive to be a prolonged occupation meriting a charge, doesn’t necessarily mean that you owe them anything. Starting off with all of the relevant information to hand will provide considerably greater certainty of what sums may be owed and what a deal looks like.

Knowing that one has all relevant information before going into a meeting with the street authority will enable the person meant to be cutting the deal to concentrate on the key question for the meeting.

And, as we all know, that key question is whether to opt for brown sauce or ketchup.

We advise various energy and utility companies on the validity of s.74 prolonged occupation charges and challenges to such charges.

Contact us if we can assist you with any prolonged occupation charge issues you are encountering.