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England and Wales High Court (Administrative Court) Decisions |
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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: http://www.bailii.org/ew/cases/EWHC/Admin/2021/948.html Cite as: [2021] WLR 3305, [2021] Env LR 30, [2021] 1 WLR 3305, [2021] EWHC 948 (Admin), [2022] 1 All ER 554, [2021] HLR 37, [2021] WLR(D) 219 |
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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
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Ms Zoe Allen |
Appellant |
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- and - |
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London Borough of Ealing |
Respondent |
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Mathew McDermott (instructed by Director of Law and Administration, London Borough of Ealing) for the Respondent
Hearing date: 16 March 2021
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Crown Copyright ©
Lord Justice Popplewell:
Introduction
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?
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."
"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."
The facts
"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."
"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
The parties' submissions
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)?
"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."
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.