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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Allen v London Borough of Ealing [2021] EWHC 948 (Admin) (20 April 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/948.html Cite as: [2021] Env LR 30, [2021] WLR(D) 219, [2021] HLR 37, [2021] WLR 3305, [2021] EWHC 948 (Admin), [2022] 1 All ER 554, [2021] 1 WLR 3305 |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE CAVANAGH
____________________
Ms Zoe Allen | Appellant |
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| - and - |
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| London Borough of Ealing |
Respondent |
____________________
Mathew McDermott (instructed by Director of Law and Administration, London Borough of Ealing) for the Respondent
Hearing date: 16 March 2021
____________________
Crown Copyright ©
Lord Justice Popplewell:
Introduction
Zoe
Allen,
against the Respondent, the London Borough of Ealing ("the Council") in relation to an alleged statutory nuisance of mice infestation at the property she rents from the Council. Section 82(6) of the Environmental Protection Act 1990 ("the EPA") provides that before such a private prosecution may be brought, a notice of intention to do so must be given. Section 160 of the EPA applies to the giving or serving of notices required by the EPA, including a notice under s. 82(6). The appeal concerns the interpretation and application of s. 160, which is in similar language to sections addressing service and giving of notices in a number of other statutes.
Allen's
solicitors, Messrs Alexander Shaw Solicitors ("Alexander Shaw"), had sent a written notice by recorded delivery post to the Council more than the required 21 days before the prosecution commenced. It was addressed to "the London Borough of Ealing" but not to any identified person or department. It was not addressed to the "secretary or clerk" who are individuals identified in s. 160(3) and (4) of the EPA; nor was it addressed to the department within the Council which dealt with these matters, which was the Housing Litigation Team.
Allen's
complaint.
i) Was I correct to find that a Notice under section 82(6) of the [EPA] must, by section 160(3) of the Act, be served on or given to the Clerk or Secretary of a Body Corporate or any identifiable person or Department of the Body Corporate, (given the 21 day time limit to respond to such a Notice)?
ii) Was I correct to find that proper Service of a Notice was not proved (and the Complaint/Summons must be dismissed) in circumstances where, notwithstanding the provisions of section 160(3) of the Act, the prosecutor contends that s/he can prove actual/physical receipt of the Notice at the Body Corporate's proper address?
Allen
requires leave to appeal out of time, because although her solicitors lodged an appeal electronically within time, it was ineffective, having been lodged with the Queen's Bench Division rather than the Administrative Court. Once the error had been drawn to their attention, the appeal was filed in the Administrative Court a little over a month out of time. The extension of time was not opposed by the Council and we grant it, applying the principles in Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926.
The statutory framework
"Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of."
"160 Service of notices
(1) Any notice required or authorised by or under this Act to be served on or given to an inspector may be served or given by delivering it to him or by leaving it at, or sending it by post to, his office.
(2) Any such notice required or authorised to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
(3) Any such notice may—
(a) in the case of a body corporate, be served on or given to the secretary or clerk of that body;
(b) in the case of a partnership, be served on or given to a partner or a person having the control or management of the partnership business.
(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served or given shall be his last known address, except that—
(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;
(b) in the case of a partnership or person having the control or the management of the partnership business, it shall be the principal office of the partnership;
and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
(5) If the person to be served with or given any such notice has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.
(6) The preceding provisions of this section shall apply to the sending or giving of a document as they apply to the giving of a notice."
"7 References to service by post
Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Allen.
The EPA 1990, s. 82(1) states that a Magistrates' Court may act under the section on a "complaint ….. made by any person on the ground that he is aggrieved by the existence of a statutory nuisance." Consistent with this language, the summons issued by the Magistrates' Court referred to Ms
Allen's
"complaint", and the authorities often refer to proceedings brought under s. 82 as a "complaint" (see, for example, Fairless, below). As McCracken: Statutory Nuisance, 4th Ed. (2019), points out, at paragraphs 6.39-6.40, the phrase "making a complaint" is apt to describe civil proceedings in Magistrates' courts. However, proceedings under s. 82 are criminal proceedings, not civil proceedings (see Botross v London Borough of Fulham [1995] 16 Cr App R (S) 622). Criminal proceedings are commenced, not by making a complaint, but by laying an information before the magistrates.
"50. Construction of references to complaint in enactments dealing with offences
In any enactment conferring power on a magistrates' court to deal with an offence, or to issue a summons or warrant against a person suspected of an offence, on the complaint of any person, for references to a complaint there shall be substituted references to an information."
Allen,
through her solicitors, commenced the proceedings by laying an information upon the Magistrates. The question therefore does not arise as to whether the summons would have been defective if Ms
Allen
had made a complaint instead. It is not necessary nor appropriate for us to express a view on this matter, especially as we have not heard argument upon it. In this judgment, for convenience, and for consistency with the authorities, we have referred to a person who issues proceedings under s. 82 as "the complainant", and to the proceedings as a "complaint".
The facts
Allen
holds a secure tenancy from the Council of a flat at 54, Romney Court, Northolt. She was concerned about an infestation of mice in her flat, which she said had been taking place since at least September 2016. Ms
Allen
instructed Alexander Shaw to act for her, pursuant to a conditional fee agreement. Alexander Shaw has specialist experience and expertise in bringing proceedings on behalf of local authority and Housing Association tenants in housing disrepair matters, including bringing private prosecutions under section 82 of the EPA.
Allen's
behalf dated 9 August 2019. The letter was four pages long. The introductory paragraph of the letter said that Alexander Shaw had been instructed to act for Ms
Allen
in a housing disrepair matter, and that the firm was using the Housing Disrepair Protocol. It alleged that the Council was clearly in breach of its repairing obligations under Ms
Allen's
tenancy agreement and under the Landlord and Tenant Act 1985. The letter invited the Council to provide Alexander Shaw with its proposals for settlement and compensation for the inconvenience, discomfort, and loss of enjoyment suffered by Ms
Allen.
On the fourth page of this letter, there was a section headed, "S. 82 EPA 1990 NOTICE", which stated as follows:
"We write to inform you that if repairs detailed in our letter of claim are not carried out within 21 days of the date of this letter, we put you on notice that we will issue proceedings in the Magistrates Court for a breach of s79(1)(a) Environmental Protection Act 1990. We believe the disrepair items specified constitutes a statutory nuisance that is prejudicial to our client's and her family's health. Please note that this constitutes a s82 Notice for the purpose of any action that may be taken in the Magistrates Court."
Allen,
laying an information before the Magistrates, and enclosing a request for a summons for breach of section 79(1)(a) of the EPA 1990, and also enclosing a copy of the Notice. A summons was issued by Uxbridge Magistrates' Court on 14 October 2019, addressed to the Council, with a return date of 4 November 2019, at 10.00 am, at Ealing Magistrates' Court. In accordance with a draft provided to the Magistrates' Court by Alexander Shaw, the summons was addressed by the Court to "London Borough of Ealing, Perceval House, 14-16 Uxbridge Road, Ealing, W5 2HL." The summons was served upon the Council by Alexander Shaw under cover of a letter dated 18 October 2019. The letter enclosing the summons was sent by Recorded Delivery. Once again, the letter was addressed to "The London Borough of Ealing" at Perceval House.
"Our monthly inbound volumes are around 20,000 items so loosely translates to 1,000 items a day – bear in mind that there are peaks and troughs.
Mail addressed simply to "Ealing Council" would be delayed as the team have to do some investigative work and there is also a risk of incorrectly addressed mail initially being sent to the wrong team and that then having to come back before being redistributed."
"We write to inform you that henceforth the address for service of abatement notices pursuant to section 82 of the Environmental Protection Act against the London Borough of Ealing shall be:-
Housing Litigation Team,
Legal Department,
5th Floor,
Perceval House,
14-16 Uxbridge Road,
London W5 2HL"
In addition it would be appreciated that as well as a hard copy that a soft copy of the notice is sent by e mail to LegalSupport@ealing.gov.uk for the urgent attention of the Housing Litigation Team.
For the avoidance of doubt any further notices under section 82 of the Environmental Protection Act not sent to the above address will not be deemed as being appropriately served."
"Received with thanks. I have updated our systems, hopefully future notices will be sent to the address specified…."
The ruling of the District Judge
Allen
was represented by Mr Andrew Locke of Counsel, and the Council was represented by Mr Mathew McDermott of Counsel, both of whom also appeared before us. The District Judge was provided with the witness statements of Mr Raza and Mr Lowes, and with the documents to which we have referred above, but no witnesses gave oral evidence at the hearing (the witnesses were present at court and the District Judge invited the parties to call them but they declined the invitation).
Allen's
application. He indicated that he did not need to determine whether the effect of the EPA 1990, section 160(5), was that, once the letter of 10 August 2018 was sent to Alexander Shaw the requirements of section 160 could only be complied with by service in accordance with the method that was set out in the letter. The effect of the District Judge's ruling was that the service was ineffective, regardless of the answer to that question. However, he regarded it as relevant, when considering the justice of the matter, that Alexander Shaw, an experienced firm with relevant expertise, had received a clear request to send s. 82 notices to the Housing Litigation Team.
The parties' submissions
Allen,
Mr Locke submitted that section 160 is permissive, not mandatory. If a notice is received by a person on behalf of a body corporate in circumstances in which such receipt is attributed to the body corporate in accordance with the normal common law rules of attribution, then there will be good service for the purposes of section 82(6). In particular, the reference in section 160(3) to serving or giving any such notice to the secretary or clerk of the body corporate is permissive, not mandatory: the complainant may serve upon such a person, but is not required to do so. This is indicated by the use of the word "may" in section 160(3). He submitted that otherwise section 160 would lay a trap for the unwary.
Allen
had therefore done all that was required of her by section 82(6). She had, in fact, effected postal service in accordance with section 160(2). Her solicitors had posted the letter to the Council, using the Council's principal address. It had been received and signed for by an employee of the Council, "Mark", who was able to accept service on the Council's behalf. There was no additional mandatory requirement to address the letter to the Council's clerk or secretary, or to address it to a person in authority or to a person or department at the Council with responsibility for dealing with s. 82 notices.
Allen's
case, the period provided to abate the nuisance was 21 days, but in a noise case the period is as short as three days. It is therefore crucial to the statutory purpose, Mr McDermott submitted, that the right people within a body corporate, who have the power and expertise to deal with statutory nuisances, have the notice drawn to their attention before the time period starts to run. Many bodies corporate, such as the Council, are very large and have complicated corporate structures. It is simply not good enough, he submitted, for a complainant to address a s. 82 notice to the body corporate itself at its registered or principal office. The Council receives 20,000 letters a month. If a notice is not addressed to a person in authority or a person or department with responsibility for dealing with such notices, there is an obvious risk that it will fall through the cracks when it arrives at the post room. Staff in the post room may well not know to whom it should be forwarded (and it is worth noting that Alexander Shaw's letter of 9 August 2019 did not even mention that it was a section 82 notice until the fourth page). The notice may never be seen by a person who is in a position to take action on it, as happened in the present case, or there may be a delay which means that the period of notice is substantially shorter in practice than that which is provided for by the statutory regime. Mr McDermott emphasised that section 82 potentially gives rise to criminal liability, and so the requirements relating to service of notice should be applied strictly.
Discussion
Is s. 160 permissive or mandatory?
"The number of cases under section 82 points away from the court adopting an over-technical approach to section 82(6) notices. The present case is a good example. It is accepted that a statutory nuisance did in fact exist at the date of the information. It would be most unfortunate if, purely because of a technical defect in a notice under section 82(6), the magistrates' court was deprived of any jurisdiction to make an Order under section 82(2), or to award the complainant compensation under section 82(12) if the complaint was justified when it was made but the nuisance had been abated by the time of the hearing. It is relevant, in my view, that a complaint under section 82 may be made by any person who is aggrieved by the existence of a statutory nuisance. It is important that ordinary members of the public who may not have any legal expertise, such as tenants, are not deterred from pursuing complaints which are well founded on the merits by over-technical procedural requirements. The complainant may know very well what it is he is complaining about, but find it difficult to set out at that stage precisely what should be done to remedy it."
"Section 82 is intended to provide a simple procedure for a private citizen to obtain redress when he or she suffers a statutory nuisance of any one of the various kinds itemised in section 79(1), which may relate to the state of the premises or the emission of smoke or the emission of fumes or gases, or dust, steam, smell or other effluvia arising on premises, or the accumulation or deposit, or the keeping of an animal, or noise, or anything else declared by statute to be a statutory nuisance. It would frustrate the clear intention of Parliament if the procedure provided by section 82 were to become bogged down in unnecessary technicality or undue literalism. It is important that the system should be operable by people who may be neither very sophisticated nor very articulate, and who may not in some cases, unlike this appellant, have the benefit of specialised and high quality advice."
"The rationale of the section 82 procedure is there clearly stated. It is a simple procedure for a private citizen to obtain redress when he or she suffers a section 79(1) statutory nuisance. Thus the system should be operable by people who may be neither very sophisticated nor very articulate and who may not in some cases have the benefit of legal advice. The notice should be such as will reasonably alert the recipient to matters complained of so that the recipient may take timely and effective steps to put right such matters as he accepts need to be put right. Thus the hallmarks of the statutory remedy can be summarised in two words: "simple" and "speedy"."
At page 1093, he said:
"This aspect of the 1990 Act [section 82(6) notices] is intended to provide ordinary people, numbered amongst whom are those who are disadvantaged (whether by reason of their health or their financial circumstances or otherwise), with a speedy and effective remedy for circumstances which will often have an adverse effect (or a potentially adverse effect) upon their health and/or the health of their children. Parliament's intention, in the absence of compelling statutory language, should not in our view be frustrated by introducing into this straightforward and swift statutory remedy any technical obstacle of which the ordinary citizen will almost certainly be unaware. Clearly, the criminal nature of the proceedings under section 82 must not be lost sight of and the legitimate interests of those proceeded against under these provisions have to be protected."
"No point was taken on section 160(3) by counsel either here or below. However, it seems to me, on re-reading the Case Stated after judgment was reserved, that the notice in question, addressed as it was to the Senior Estate Manager, was not given to the clerk of the authority. The use of the word "may" in this context is not one which indicates that the persons specified in section 160(3) is one of a number of persons who may be served when it is sought to apprise a corporate body of the existence of a notice. If that were so, the subsection would be redundant. Take a situation where the notice is sent to the principal office of the authority so that one has none of the problems associated with getting the right address. If the notice is merely addressed to "the Authority" that arguably would not suffice. The notice should have been addressed to the clerk who would be in a position to secure that action was taken with all appropriate speed. But if the notice is addressed to someone other than the clerk – say the librarian – that does not seem to me to be good enough. In the present case it was addressed to the Senior Estate Manager at Canonbury Neighbourhood, Canonbury West Office. That does not seem to me, to comply with section 160(3). If that be right, then the magistrate was bound to come to the conclusion to which she came and we do not need to examine whether the route that she took was correct. However, the point not having been argued in this way, if counsel wish to address us on it before we formally hand down judgment, we will hear them."
"18. The notice requirements under section 82 of the Environmental Protection Act need to be construed in accordance with their purpose within the legislation. That, in my judgment, is to provide a summary procedure for lay people to gain relief from nuisances.
19. I reject the respondent's contention that this court should consider whether the legislation is navigable by solicitors. This is not company legislation, but a statute specifically directed to the protection of the environment and contemplating action taken by the aggrieved layman, just as in this case."
"21. It is a fact that the respondent company's manager and director, Mrs Hill, had knowledge of the notice and, in my view, was authorised to deal with it. If it matters, directors have extensive powers, as is well established. But section 160 is in any event permissive not mandatory."
"30. I would answer that first question, no. The provisions contained within section 160 of the Act seem to me to be clearly on their face permissive as is demonstrated by the explicit use of the word used ''may'' in contrast to the selected word ''must'' in other parts of the statute.
31 …. In my view other means of service are sufficient …."
"(1) A notice or other document required or authorised to be served under this Act may be served on a person—
(a) by delivering it to him in person;
(b) by sending it by post to him at his usual or last known residence or place of business in the United Kingdom; or
(c) in the case of a body corporate, by delivering it to the secretary or clerk of the body corporate at its registered or principal office or sending it by post to the secretary or clerk of that body corporate at that office.
(1A) A notice or other document required or authorised to be served under this Act may also be served on a person by means of an electronic communication, but only if—
(a) the recipient has stated a willingness to receive the notice or document by means of an electronic communication,
(b) the statement has not been withdrawn, and
(c) the notice or document was transmitted to an electronic address specified by the recipient."
"At common law service requires receipt of the document. …. The methods of service prescribed by s.15 and similar statutory provisions are there to assist the serving party in that if he uses them then there has been good service of the document for the purposes of the relevant statute even if the intended recipient either refuses to accept or (in cases, for example, of service by post) never in fact receives the document. To that extent, the common law rule is either modified or excluded."
"But as with any statutory provision it is necessary to have regard to the totality of the relevant provisions and to construe them by reference to the regime which they were intended to facilitate. As part of that process, one needs to take into account any contra-indications in the language of the section itself."
The two factual issues
Service in accordance with s. 160(2)?
Allen
has provided the court with the Recorded Delivery record and it is accepted that the letter arrived by post at the Council's offices on 12 August 2019, where it was signed for by "Mark". Accordingly, the letter was received well in advance of 21 days before the proceedings commenced.
Allen
therefore complied with section 160(2). It was not necessary that, in addition, she complied with section 160(3)(a) because section 160(3)(a) is permissive only, and service in accordance with section 160(2) is good service even if section 160(3)(a) is not complied with, for the reasons we have given.
"26. I appreciate that service of a document by a local authority may well lead to criminal liability, but that is no reason to adopt a strained and unnatural interpretation of section 233. Since it enables documents to be served on corporate bodies by sending them through the post, it is to be expected that companies will make the necessary administrative arrangements to ensure that the right persons within the company hierarchy see important documents. I can see no reason why the same approach should not be adopted in relation to documents that are left at the company's registered or principal office. Any company that fails to make such arrangements does so at its peril since section 725(1) of the Companies Act 1985 (which was not referred to before the Magistrates) provides:
"A document may be served on a company by leaving it at, or sending it by post to the company's registered office."
27. Thus, any company worth its salt will make arrangements to ensure that documents left at its registered office will be dealt with administratively in such a way as to ensure that they reach the correct recipient within the company."
Allen's solicitors on the Council in accordance with section 160(2).
Was service validly effected outside the terms of s. 160?
(1) Mark was an employee of the Council.(2) He was present at the Council's principal office when he signed for the letter.
(3) Whatever the nature of Mark's job might be, such as post-room operative, or receptionist, it included signing for documents on behalf of the Council which arrived by Recorded Delivery and needed to be signed for. This is clear from the fact that Mark signed for Recorded Delivery correspondence on two separate occasions (the Notice and then the summons, some weeks later). The idea that Mark may have been an employee who just happened to be passing on two separate occasions and on each occasion took it upon himself to sign for letters even though it was not part of his job is too far-fetched to be contemplated. So is the possibility that it may have been two different Marks on the two occasions, given the apparent similarity of the signatures.
(4) The Royal Mail employee or employees who delivered the two letters from Alexander Shaw to the Council regarded Mark as a suitably authorised person to sign on behalf of the Council.
Conclusion
i) The District Judge should have not have found that a notice under section 82(6) of the EPA 1990 must, by section 160(3) of the Act, be served on or given to the clerk or secretary of a body corporate or any identifiable person or department of the body corporate. The requirements of section 160(2) and s160(3), as regards notice, are permissive, not mandatory. A notice complies with s. 160 (2) and is validly served if delivered or posted to the registered or principal place of business of a body corporate when addressed solely to the body corporate without further identification of an addressee. The District Judge should have found that proper service of the Notice was proved in this case in circumstances in which the notice was addressed to the "London Borough of Ealing" and was sent by Recorded Delivery post to the Respondent's principal address. This was effective service in accordance with the EPA 1990, section 160(2).ii) The District Judge should also have found that valid service had been effected when, having been sent by post, the notice was signed for by "Mark" at the Respondent's principal address. In light of the undisputed evidence, the District judge should have found that the person who accepted and signed for the notice had actual authority to accept service on behalf of the Respondent.