Torts – Emergency powers – Interference with goods – Local authorities’ powers and duties

Infolines Public Networks Ltd v Nottingham City Council: CA (Civ Div) (Sir Andrew Morritt [Chancellor], Lords Justice Keene, Elias): 11 June 2009

The appellant public service undertaker (U) appealed against the dismissal of its counterclaim for wrongful interference with goods against the respondent local authority.

The local authority, acting as the relevant street authority for the purposes of the New Roads and Street Works Act 1991, had removed two of U’s telephone kiosks from the city centre pursuant to its emergency works powers under section 52(1) on the basis that U had failed to repair defects in them or to make them safe for public use. The local authority returned such money as remained in the kiosks to U and, thereafter, disposed of the kiosks and the equipment therein. It did not notify U of its intention to dispose of the kiosks. Subsequently, the local authority commenced proceedings to recover the costs of removing the kiosks against U. The judge found that the local authority was entitled, in the exercise of its statutory powers, to remove the kiosks by reason of its emergency works powers under section 52(1) and was therefore entitled to the costs of such removal. The judge then proceeded to dismiss U’s counterclaim, premised as it was on wrongful interference with goods. The judge determined that U had failed to adduce a sufficiency of evidence to support the proposition that the kiosks would have been financially viable even if retained by the local authority. U submitted that disposal of the kiosks was not a legitimate use of the local authority’s emergency works powers; once the kiosks had been dismantled and removed any risk of damage to persons or property ceased; and there was no power conferred by the statute on the local authority to dispose of them. U contended that the act of removal could be severed from the act of disposal and that disposal of the kiosks was not rendered lawful by the exercise of the local authority’s statutory power of removal. The local authority argued that disposal could not be severed from removal and that it was entitled to dispose of the kiosks pursuant to its powers under section 52(2), which brought the powers of disposal under the title of emergency works. It argued, moreover, that section 52(2) had to be given a reasonably broad interpretation such as to entitle the local authority to do whatever was reasonable once the danger posed by an offending article had passed.

Held: (1) Disposal of the kiosks was not required to prevent danger to persons or property; removal of the kiosks was patently sufficient to remove any such danger. Moreover, there was no question that it was entirely possible to sever the works of removal from the works of disposal. The two were not so wholly interrelated in time that they could not be severed.

(2) A broad interpretation of section 52(2) could not be sustained. Emergency powers were provided to the authority in order to protect the public from danger, conferring upon it the power to interfere with someone else’s property. In those circumstances, the court should interpret the powers of section 52(2) in their narrow and strict sense. On that basis, disposal could not be said to be a legitimate emergency power under section 52(2). The local authority was not entitled to dispose of those kiosks free from civil liability. Such a disposal amounted to a wrongful interference with goods, and the local authority remained liable to U for the loss of the kiosks.

(3) (Obiter) A local authority was obliged, once it had removed an offending article pursuant to its statutory powers, to store it. It was then obliged to give notice of removal and storage to the article’s owner, stating that if it was not collected within a reasonable time it would be disposed of. If the owner then failed to collect the article or to do anything, any loss he suffered would be his own fault.

Appeal allowed.

Tom Gosling (instructed by DWF) for the appellant; Olivia Chaffin-Laird (instructed by in-house solicitor) for the respondent.