Street Light on private road

[midnightcatprowl]

I live on a small 'private' estate of two rows of terraced houses built in the mid-eighties and I am now one of the directors of the company set up to maintain the roads plus a couple of small areas of grass.

The original management committee declined as members moved away and finally the only director left became ill and died. The company secretary (a solicitor who'd been involved in setting up the company in the first place, who had never lived on the estate and who'd kept on the job of secretary for ours and other estates as a sort of retirement hobby) went door to door to the remaining owner occupiers and persuaded enough of us to become directors to get things going again about four years ago. Since then the old secretary moved to another part of the country and we have a new and much more useful secretary who is an owner occupier on the estate.

We've been left with a situation where there was the 'old' management, then a gap and then the 'new' management. As the new management has got down to work it has become clear that a number of matters which should have been dealt with in the early years of the estate were not but we are gradually getting things sorted out.

The most troublesome outstanding issue is that of the street lights - one on each of the two roads. Going way back to the start of the company each year in the 'Notes to the Financial Statements' there is the following statement:

"There is an unquantifiable contingent liability for the payment of electricity charges in respect of two street lamps, the responsibility for which cannot be ascertained" N.B. There is no mention anywhere of who owns the street lamps nor who is responsible for their maintenance.

Since the estate was built the old County Council which administered the area has closed down and for the last few years we have been under the management of a Borough Council.

The 'facts' about the street lights are as follows:

they are the same design as the lights on the nearby Council adopted and maintained roads;

since 1985 or so the lights have been maintained by first the County Council and since then by Borough Council workers but we have no written (nor photographic!) proof of this. People who have lived on the estate for a long time, including me, can say "staff from your department came round in a Council vehicle and changed the bulb or dealt with the faulty electrics or whatever, we saw them do it" but that's it, there is nothing in writing and it never occurred to anyone to take a photo;

after I became a director the light on my road stopped working so I phoned the Council, they were very helpful and though initially inclined to say "it is a private road so the light is your responsibility" when I explained that the light had always been maintained by the Council(s) the person I was speaking to investigated further and said that yes definitely the light belonged to the Council, the Council was responsible for maintaining it and, as I asked, they were responsible for paying for the electricity too. The light was noted as faulty and repaired a few days later. Of course I realise now I should have asked for email confirmation but they were so definite it was their light that I thought the problem was resolved;

recently the light went out again and the neighbour who noticed it first phoned the Council only to be told "it is a private road so the light is not our responsibility". I then phoned, explained the previous stance of the Council(s), again call taker very helpful and investigated but could not find any information relating to the light nor the one in the other road and said she'd have to refer the problem to another department who would phone me back - they didn't;

approx a week later with no return phone call I inquired again but by email this time, thinking it better to have some sort of written record, email answered by same person I'd spoken to on phone, who said they'd get the other department to contact me which they did later the same day and also by email. They promised to investigate and get back to me and asked if we had anything in writing about the street lights but, of course, we don't. I pointed out to them that the company was in a very difficult situation because if the light does belong to the council then we obviously can't interfere with it in any way so can't arrange repairs, but without accepting that the light is theirs the council won't even put it on the list for repair. Another week has gone by and no one has come back to me.

Three queries:

company secretary is very keen for me to get this all sorted out but also very worried we could be hit by a electricity bill for 30 + years of street lighting if the Council now say the light is ours not theirs and can prove it. Is this actually feasible bearing in mind that the company has never been billed for electricity? Is there a limitation on how far back they could go?

something the company secretary hasn't thought of yet - and I'm not keen to introduce into his mind until I'm clearer about the situation - could the council now bill us for maintaining our street lights for 30+ years?

am I approaching things with the council in the right way by going through the street lighting department? Should I be asking the legal department instead? I could see a situation where council workers do actually turn up and repair the light and then the next time it goes out we start having the same argument all over again?

[didds]

its not unknown for councils and other bodies to "lose" stuff that costs them money of course.

Stupid suggestion time cos you've probably done this... you'd have a rough recollection of the time frame of the last time the council came and repaired the light after you'd been told it was up to the council... can this person you spoke to not find any reference to any work to that postcode and immediately surrounding ones for that period at all once its narrowed down in that manner?? How long ago was this? It sounds as if it was "the council" from the van description but could it have been contractors? If you could ascertain who the contractors were maybe checking with them as to works done and BILLED could be useful?

Good luck.

didds

[PinkDalek]

... queries:

company secretary is very keen for me to get this all sorted out but also very worried we could be hit by a electricity bill for 30 + years of street lighting if the Council now say the light is ours not theirs and can prove it. Is this actually feasible bearing in mind that the company has never been billed for electricity? Is there a limitation on how far back they could go?

something the company secretary hasn't thought of yet - and I'm not keen to introduce into his mind until I'm clearer about the situation - could the council now bill us for maintaining our street lights for 30+ years? ...

Not a legal answer but in a similar case of which I'm familiar, the local council advised that, despite having paid for the erection, maintenance and energy costs for over 30 years or so, they no longer wished to continue the arrangements (due to funding cuts).

The options given were for the lighting to be dismantled, with those costs to be borne by the council, or for the private estate to take over the responsibility. It is understood the previous arrangements had been discretionary.

There was no suggestion that any prior costs were to be recharged.

PD

[midnightcatprowl]

Not a legal answer but in a similar case of which I'm familiar, the local council advised that, despite having paid for the erection, maintenance and energy costs for over 30 years or so, they no longer wished to continue the arrangements (due to funding cuts).

The options given were for the lighting to be dismantled, with those costs to be borne by the council, or for the private estate to take over the responsibility. It is understood the previous arrangements had been discretionary.

There was no suggestion that any prior costs were to be recharged.

That's very interesting PinkDalek. Personally I would be perfectly happy if our Council did this. It is retrospective charges which concern me. Having the light as a freebie is all well and good in its way but in some ways it would be useful if we could sort things out for ourselves going forward especially as the lighting on one road is very unsatisfactory due to its L shaped nature. I don't know how the other directors would react. We are down to four people again as one director just moved away and the majority of the houses are now rented out by absentee landlords.

[midnightcatprowl]

Stupid suggestion time cos you've probably done this... you'd have a rough recollection of the time frame of the last time the council came and repaired the light after you'd been told it was up to the council... can this person you spoke to not find any reference to any work to that postcode and immediately surrounding ones for that period at all once its narrowed down in that manner?? How long ago was this? It sounds as if it was "the council" from the van description but could it have been contractors? If you could ascertain who the contractors were maybe checking with them as to works done and BILLED could be useful?

Alas didds I'm really uncertain of the time frame. I feel it was only a couple of years ago but it is very vague and it could have been much more or much less. Of course I regret now not having made the that request by email as I'd have kept the email conversation... The only thing I'm definite about was that the vehicle used was a council vehicle but memory is a funny thing and maybe I'm remembering what I assumed at the time rather than what I saw. Because I thought everything was sorted out, as I came out that morning and found them working on the light, I just thought 'great' and hopped in my van and went off to my shop. Now I'd get out my phone and take a photo but hindsight is a great thing!

[Clitheroekid]

Do you know for sure whether or not the road is an adopted highway? If it is then the Council would be responsible, but I'm assuming from your post that it isn't.

In that event the highway authority (normally the County Council who may delegate it to the Borough Council) have no statutory obligation to provide street lighting. It's likely that the funding for the lighting has been provided on a `discretionary' basis, which can be withdrawn.

So from a legal point of view you may be struggling. However, you could argue that as the lighting was obviously installed by the Council, belongs to the Council and has been historically maintained by the Council then by definition the Council has a legal obligation to carry on maintaining it in the same way.

You might point out that if they fail to maintain it properly in future (which obviously includes keeping the lights switched on) they would be liable for any personal injuries suffered by people who injured themselves because they couldn't see where they were going. Although the legal grounds for such a claim may be a tad tenuous Councils tend to be paranoid about such claims, and they might just decide it was easier to maintain the status quo than take the risk.

Finally you could also argue that residents have been paying their council tax on the understanding (borne out by experience) that it included street lighting, and that if it was withdrawn the residents would want a reduction in their council tax to compensate for the cost of having to provide lighting themselves. Again, not a very compelling legal argument, but it might make them think twice.

[midnightcatprowl]

Do you know for sure whether or not the road is an adopted highway? If it is then the Council would be responsible, but I'm assuming from your post that it isn't.

Thanks Clitheroekid but I can confirm the road is not adopted and it has never been expected that it would be. The road is narrow, brick paved rather than asphalted and leads to a dead end which is the wall alongside the high speed railway route to London. It seems to have been accepted from the start that the road was not adopted and never would be. I suppose that earlier this was simply accepted as presumably part of getting planning permission for a high density development on a brown field site (used to be the site of a printing press) jammed against a busy high speed railway line. Today, even given the yearly maintenance charge has now risen to £60, it is to the advantage of residents that the road remains non adopted. The surrounding roads are now controlled parking areas where even home owners have to buy the right to park on the road. In contrast we have the relative luxury of nose in parking for one vehicle on each property (the parking place being part of each householders own land) plus a small parking area for visitors. Needless to say there have been problems over the years because when the estate was built it was conceived as 'starter' homes and at the time no more than one vehicle per house was expected and many had none and most residents were singles or couples with just one vehicle. Times change, now if you have a couple that tends to mean two vehicles and many of the 'starter' homes now home not singles or couples but whole families. There is actually enough room on the estate that given the norm today that many houses have two vehicles it can still can still be done with a bit of thought and consideration all round. Obviously you get the odd person who neither thinks nor is considerate and one of the unofficial roles of the management committee over the years has come to be 'encouraging' people to park with care and consideration. But overall it is better for residents if we stay as a private road as the maintenance charge is still less than the cost of a residents parking permit on the surrounding roads plus your friends and folk such as your heating engineer can park with ease (less pressure on parking spaces in day time) and for no charge.

[midnightcatprowl]

You might point out that if they fail to maintain it properly in future (which obviously includes keeping the lights switched on) they would be liable for any personal injuries suffered by people who injured themselves because they couldn't see where they were going. Although the legal grounds for such a claim may be a tad tenuous Councils tend to be paranoid about such claims, and they might just decide it was easier to maintain the status quo than take the risk.

Finally you could also argue that residents have been paying their council tax on the understanding (borne out by experience) that it included street lighting, and that if it was withdrawn the residents would want a reduction in their council tax to compensate for the cost of having to provide lighting themselves. Again, not a very compelling legal argument, but it might make them think twice.

My fear is that people would actually automatically sue the estate. The roads are marked with a Private Road No Parking Sign at the entrance to each as we had so many problems with people who don't live here using us as a free car park and residents coming home and finding all the spaces taken. The signs have proved useful but of course they also advertise the fact that these are private roads.

The Council Tax thing is, of course, very valid as householders do pay the full Council Tax Charge despite also having to pay separately for the maintenance of the roads but I assume that is what happens on all private roads...

[midnightcatprowl]

Had an email from the Council this morning:

Having looked into this I can confirm that the street lighting column on ---------- is not owned by the borough council. We have nothing in writing confirming any agreement about these lights on private land.

If they are saying they don't own the light presumably they are by implication saying they have not been paying for the electricity. Unless a meter in one of the houses in each road is going round faster than it should....

[didds]

If they are saying they don't own the light presumably they are by implication saying they have not been paying for the electricity. Unless a meter in one of the houses in each road is going round faster than it should....

guess its time to ask every house, one by one, to turn its power off at the circuit box as a test...



didds

[modellingman]

At the end of the 90s, I spent some time doing some IT consulting work with one of the Regional Electricity Companies. The work was all about electricity demand forecasting and part of that demand comes from street lighting. Street lighting is generally on an unmetered supply. Consumption is estimated from the number of lights, their rated power consumption and the period of darkness. Christmas was a particular problem for the RECs as public festive lighting gets added in. There's an interesting thread on the SABRE (Society for All British and Irish Road Enthusiasts) forum about how public streetlighting is paid for http://www.sabre-roads.org.uk/forum/viewtopic.php?t=33845 (I'm not a member, I hasten to add).

I suspect that given
-nobody has done anything about billing the estate's management company for the street lighting for 30 years
-the council departments dealing with the physical maintenance of street lighting and the streetlighting bill are probably well siloed from each other
the status-quo as far as the billing is concerned will probably prevail indefinitely. It is entirely possible that there are separate asset lists for streetlighting: one for billing and one for maintenance. The transition from one authority to another will not have done anything to oil the wheels of data administration for a backwater like public street lighting.

Given that you have a response in writing from the Council that they are not responsible for maintaining the lights, then why not just get a contractor in to fix it. Possibly the other thing to be concerned about is insurance: lamp-posts have been known to fall over and damage people and property. Might also be sensible to estimate the size of the back-bill and have a plan for dealing with it if the council does ever get its act together.

[dspp]

Somehow my reply got crossed over with modellingman when I posted. Curious. Oh well it has vanished & gone now.

Anyway I was saying something similar to him. I suggest you read https://www.gov.uk/government/publicati ... egulations and ask them and your local DNO (electricity distribution network operator) who they think is paying these unmetered connections.

If it is anything like some lights I know then the lighting circuit terminates at one or more houses, but upstream of the metered connection for the house so that the householder is a) not charged and b) cannot switch off the lamp supply.

Email me if you need some info about clauses to watch out for in getting a council to adopt these lights. A relative of mine has dealt with exactly this issue.

regards, dspp

[Gengulphus]

company secretary is very keen for me to get this all sorted out but also very worried we could be hit by a electricity bill for 30 + years of street lighting if the Council now say the light is ours not theirs and can prove it. Is this actually feasible bearing in mind that the company has never been billed for electricity? Is there a limitation on how far back they could go?

something the company secretary hasn't thought of yet - and I'm not keen to introduce into his mind until I'm clearer about the situation - could the council now bill us for maintaining our street lights for 30+ years?

Something I'm a bit surprised not to have seen mentioned in the replies is that even if all else fails, debts over 6 years old are generally time-barred from legal enforcement. (With some rules about acknowledging the debt restarting the clock, the exact details of which I don't remember, but as I understand the situation here neither side is currently trying to say the debt exists.)

Is this an oversight in the replies? Or is there some reason I don't know of why the general rule wouldn't apply?

Gengulphus

[Clitheroekid]

Is this an oversight in the replies?

Yes, at least on my part, I'd got so involved with the issue of whose responsibility it was to maintain the lights that I'd completely overlooked this point.

I really don't see how any of the householders could be billed for any of the electricity used. By definition, none of them has signed a contract to pay for the lighting, so in the highly unlikely event that the council were to make a claim they would simply defend it by saying that the electricity had been supplied entirely voluntarily by the Council using their discretionary powers; or alternatively that they had already paid for the electricity through their council tax, just like everyone else.

Either way, they need have no concerns about receiving a bill.

[IsleofWightPete]

Something I'm a bit surprised not to have seen mentioned in the replies is that even if all else fails, debts over 6 years old are generally time-barred from legal enforcement. (With some rules about acknowledging the debt restarting the clock, the exact details of which I don't remember, but as I understand the situation here neither side is currently trying to say the debt exists.)

Is this an oversight in the replies? Or is there some reason I don't know of why the general rule wouldn't apply?

Gengulphus

Actually I don't think that would be relevant in this case, as there is a shorter limit on how far electricity suppliers can go if their failure to bill has caused the debt, that would probably apply.
Ofgem’s Back-Billing Principle
From 2007, Ofgem requirements state that energy suppliers can no longer try to reconcile incorrect domestic energy charges from more than 12 months ago, if the supplier itself is at fault for not billing the household correctly.

This is known as the Back-Billing Principle, and suppliers must adhere to it. It states:

"If your supplier is at fault, it will not seek additional payment for unbilled energy used more than 12 months prior to the error being detected and a corrected bill being issued."
https://www.uswitch.com/gas-electricity ... k-billing/

Obviously there is a need to show that it WAS the failure of the supplier, not a fault of a consumer who "should have known" but did nothing, but in this instance, i think there seems to be a basis for very reasonable assumption that it is someone else's responsibility.

Might also be a question if this is a commercial rather than domestic supply, not sure how the above applies to commercial or whether supplying domestic customers with a common supply would be classed as commercial (certainly electricity to INTERNAL common parts is treated as domestic).

[Clitheroekid]

Actually I don't think that would be relevant in this case, as there is a shorter limit on how far electricity suppliers can go if their failure to bill has caused the debt, that would probably apply.

Interesting as this is I can't see that it would be relevant to the OP's problem, as the householders have never been customers of the power company in the first place. The only people that could benefit from this provision would be the local authority.

[IsleofWightPete]

Interesting as this is I can't see that it would be relevant to the OP's problem, as the householders have never been customers of the power company in the first place.

No, but the management company just might somehow have been.
In any event, I was just pointing out that IF somehow liability could be proved, they would probably not need to rely on the 6 year limit (which was what was being discussed) because this shorter limit would likely apply.

But I agree it would be a tough job to show liability in the first place.

[modellingman]

Interesting as this is I can't see that it would be relevant to the OP's problem, as the householders have never been customers of the power company in the first place.

No, but the management company just might somehow have been.
In any event, I was just pointing out that IF somehow liability could be proved, they would probably not need to rely on the 6 year limit (which was what was being discussed) because this shorter limit would likely apply.

But I agree it would be a tough job to show liability in the first place.

Unmetered public street lighting almost certainly won't be a domestic supply. OFGEM's back-billing protection (https://www.ofgem.gov.uk/consumers/household-gas-and-electricity-guide/who-contact-if-its-difficult-paying-energy-bills/energy-back-billing-your-rights) is limited to domestic customers. In addition, the code states it "may not apply if you have been using the gas or electricity supply but have made no attempt to contact the supplier to arrange payment."

Even if the LA did decide that it shouldn't have been paying for the electricity or have been maintaining the lights, I strongly suspect that 6 year rules aside it wouldn't try and go back the full 30 years - more likely it would simply go back to the point it became the responsible authority. Even that is far from certain, LAs have a severe aversion to admitting their mistakes, so it might just well suffer the loss but try to rectify the position going forward.

The actual electricity costs involved are probably quite low. Shropshire (as an example) says lights vary from 35W on residential streets to 150W on main roads and the annual electricity costs per lamp are between £25 and £65 ([url]http://shropshire.gov.uk/street-lighting/facts,-figures-and-faqs/street-lighting-facts/[/url).

[midnightcatprowl]

I'm still here and paying attention folks. Thanks for all the comments so far. I'm passing some of the received wisdom on to our company secretary. He in turn is wondering if there is an implied contract between the Council and the Management Committee as the Council have maintained the light in the past whatever they may say now and is proposing to get a solicitor's opinion on this issue. N.B. It has occurred to me, though we don't have proof in writing or photos that the Council have been maintaining the light, we could prove that it isn't us that has been maintaining it as obviously we have financial records going back to the 1980s and the bulb in the light cannot have continued to function for 30+ years. It isn't the sort o job which could be undertaken by management committee members or householders as I believe a cherry picker will be needed. (Some things on the estate, such as mowing a couple of small patches of communal grass, tend to get done for free by residents.)

[Clitheroekid]

IHe in turn is wondering if there is an implied contract between the Council and the Management Committee as the Council have maintained the light in the past whatever they may say now and is proposing to get a solicitor's opinion on this issue.

At the risk of outraging fellow members of my noble profession I'd save the solicitor's fee. There is no implied contract - period (as our American cousins would put it!)

The courts are extremely reluctant to imply / infer a contract, and it's very rare that it happens.

In this case such an argument wouldn't even get off the ground. For a start, there has been no intent to create legal relations, which is an essential part of any contract. Neither has there been any `consideration', i.e. you have not offered or given any value for the Council's services.