Notices and statutory nuisances
A recent High Court ruling shows the need to avoid an overly technical approach to s.82(6) notices under the Environmental Protection Act 1990, writes Sarah Salmon.
In recent years, local authority and social landlords have seen an increase in private prosecutions brought against them under section 82, Environmental Protection Act 1990 (EPA 1990).
I have written before about the costs claimed in such prosecutions and the use of experts so as to prove the case beyond reasonable doubt. Here, I consider the High Court’s decision on 20 April 2021 in Zoe Allen v London Borough of Ealing [2021] EWHC 948 (Admin) [2021] EWHC 948 (Admin).
Ms Allen brought a prosecution under section 82, EPA 1990 against the London Borough of Ealing. There was a preliminary issue at trial regarding the validity of the notice of intention to bring such a prosecution.
The importance of the decision
There is a high burden of proof on a tenant in section 82, EPA 1990 prosecutions. Many landlords will, however, also look to take technical defences (for which there may well be merit) and often focus on issues with notices.
There were conflicting authorities on such issues (R v Birmingham CC ex p Ireland [1999] 2 All ER 609; Leeds v Islington LBC (1999) 31 HLR 545, DC; and, Hewlings v McLean Homes East Anglia (2001) 3 HLR 50) which the court has considered. In the Islington case the court stated obiter that a notice addressed to the Senior Estate Manager did not comply with section 160(3).
The Ealing case confirms that section 160, EPA 1990 is permissive not mandatory and that an that an over-technical approach to section 82(6) notices should be avoided. Therefore a notice 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.
Legal framework
Before bringing a prosecution under section 82, the person aggrieved by the nuisance shall give to the proposed defendant the relevant notice in writing of his/her intention to bring the proceedings. The notice shall specify the matter complained of: s.82(6), EPA 1990.
The notice must give the proposed defendant not less than 21 days before the proceedings are instituted (save in noise cases where three days’ notice must be given).
Section 160, EPA 1990, which applies, but is not confined, to notices under section 82, provides:
“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.”
Background and decision at first instance
By letter dated 9 August 2019, Ms Allen’s solicitors wrote to the council. The letter set out that the letter was written pursuant to the Housing Disrepair Protocol and alleged that the council was in breach of its repairing obligations under Ms Allen’s tenancy agreement and under the Landlord and Tenant Act 1985.
On the fourth page of the letter, there was a section headed, “S. 82 EPA 1990 NOTICE”. It set out that if repairs detailed in within the letter were not carried out within 21 days from 9 August, then the council was put on notice that proceedings in the Magistrates Court for a breach of section 79(1)(a), EPA 1990 would be issued. This section of the letter confirmed that it was believed that the disrepair items constituted a statutory nuisance that was prejudicial to Ms Allen and her family’s health. It concluded: “Please note that this constitutes a s82 Notice for the purpose of any action that may be taken in the Magistrates Court”.
The letter of the 9 August (“the notice”), was addressed to “The London Borough of Ealing, Perceval House, 14-16 Uxbridge Road, Ealing, London, W5 2HL”. Perceval House is the council’s town hall and its principal address. It was sent by recorded delivery and was signed for by “Mark” at Perceval House.
At a hearing on 3 January 2020, the court found that the notice had not been validly served and, therefore, the requisite 21 days’ notice had not been given before the summons was issued and served. The complaint was dismissed.
The district judge concluded that the notice was invalid because section 160(3) of the EPA 1990 imposes a requirement that where the recipient is a body corporate, the notice must be addressed to the secretary or clerk. The district judge also took the view that section 160 would have been complied with if the notice had been addressed to “any individual who is in a position to act upon the notice”.
Case stated
The district judge raised the following two questions by way of case stated.
“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?”
Allowing the appeal, the High Court answered those two questions as follows (see paragraph 85 of the judgment).
First, the district judge should 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 160(3), as regards notice, are permissive, not mandatory. A notice complies with section 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.
Secondly, 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 council’s principal address. As there was no evidence to the contrary, 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 council.
Sarah Salmon is a barrister at Field Court.
