Section 50 of the New Roads Street Works Act 1991 provides a power for a street or highway authority to grant a licence, subject to Schedule 3 conditions, to permit a person to undertake street works. The power has been considered by Dove J in Calor Gas Ltd v Norfolk County Council (2019) EWHC 308 (Admin). The claimant’s case proceeded, firstly, on the basis that the policy operated by the Council in relation to Section 50 licences was contrary to the statutory scheme. Dove J said:-
47. The first point which in my view it is important to note is that the discretion afforded by section 50 of the 1991 Act to the street authority is one which is widely expressed and, in substance, to be guided by the general duties specified in section 59 of the 1991 Act. In my view Section 59 of the 1991 Act articulates the purpose of providing the regulatory regime contained within Part 3 of the Act and, within the three criteria provided at section 59 (1) (a) to (c), provides the coordinates for the exercise of the powers provided by Part 3 of the Act. Further, there can in my view be no doubt that the Defendant is entitled to publish a policy setting out the way in which it will approach applications for street work licences under section 50 of the 1991 Act. The issue which then arises is as to whether or not the policy which the Defendant has promulgated is one which reflects the policy and purpose of the legislation. …”
“51. It is clear beyond doubt that public safety is part of the purpose and policy of the 1991 Act as articulated in section 59. …”
“53. … I am unable to conclude that the policy operated by the Defendant in relation to section 50 licences is one which has no rational connection with the policy of the legislation to protect public safety.
54. Further, and again bearing in mind the breadth of organisations which may seek to install their private infrastructure in the pubic highway, there is in my judgment justification in the arrangements made by the policy for treating non-statutory undertakers differently from statutory undertakers when approaching whether or not to grant a licence under section 50. That question is not affected by the fact that once a licence has been granted they both are to be treated as equivalent under section 48 (4) of the 1991 Act. Prior to the grant of the licence it is clear from all the legislative arrangements … that a statutory undertaker inhabits a very different legal context to a non-statutory undertaker. … a statutory undertaker will by virtue of the licence which has been granted to it be subject to a strict regulatory regime not only as to the manner in which it conducts its business, but also in respect of its financial stability by virtue of, for instance, the conditions on the licence. … In substance the statutory regime reflects the fact that there will be some statutory undertakers who have rights to undertake street works granted at least in part because of their special status as a licenced statutory undertaker on the one hand, and a variety of other non-statutory undertakers who are controlled in relation to whether or not they are permitted to undertake street works through the section 50 process on the other. It is not realistic to suggest that through the section 50 licencing regime some proxy for the detailed regulatory regime applied to statutory undertakers could or should be implemented. The distinction between statutory and non-statutory undertakers provides further justification for the Defendant’s policy.
55. In short, the material provided … explaining the reasons for having the policy demonstrate that it is in my judgment clearly a policy consistent with the policy and objects of the 1991 Act. It is also, in the light of that material, a policy which is rationally connected with the policy of the 1991 Act.
56. It follows from the above that having considered the issues raised by the Claimant in this application for judicial review I am not satisfied that the policy operated by the Defendant in relation to applications for street works licences under Section 50 of the 1991 Act is unlawful. As a consequence this claim must be dismissed.”