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Important Upper Tribunal decision on service of notices

Important Upper Tribunal decision on service of notices

Sebastian Kokelaar appeared for the successful appellant in City of Westminster v UKI (Kingsway) Ltd [2015] UKUT 301 (LC), a case concerning the service of a completion notice under section 46A and Schedule 4A of the Local Government Finance Act 1988.

The legislation

Section 46A and Schedule 4A of the 1988 Act contain provisions for determining whether a newly-constructed building which has not yet been occupied should be shown as a separate item in the local non-domestic rating list maintained by the valuation officer for each billing authority.

When it comes to the notice of a billing authority that the work remaining to be done on a new building in its area is such that the building can reasonably be expected to be completed within 3 months, the authority is required by paragraph 1(1) of Schedule 4A to serve a notice on the owner of the building, referred to as a completion notice, as soon as is reasonably practicable. A billing authority may also serve a completion notice on the owner of a building which it considers has already been completed (para 1(2)).

In each case the function of the completion notice is to identify a completion date for the new building, which will either be a date not more than 3 months from the date of service of the notice by which the building can reasonably be expected to be completed (para 2(2)) or, in the case of a building that has already been completed, will be the date of the notice itself (para 2(3)).

Where a completion notice is served, section 46A of the 1988 Act has the effect (subject to any appeal) that the new building is deemed to have been completed on the date specified in the notice. The statutory deeming has effect for the purpose of section 42 of the 1988 Act so that from the specified date the building is a hereditament which must be shown in the rating list, even if the building is not in fact completed on that date.

A completion notice is required by paragraph 2 of Schedule 4A to specify the building to which it relates and to state the day which the authority proposes as the completion date in relation to the building.

Paragraph 8 of Schedule 4A is concerned with the service of completion notices. It provides as follows:

“Without prejudice to any other mode of service, a completion notice may be served on a person -
(a) by sending it in a pre-paid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode or, in a case where an address for service has been given by that person, at that address;
(b)in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office or sending it as a pre-paid registered letter or by the recorded delivery service addressed to the secretary or clerk of the company or body at that office; or
(c)where the name or address of that person cannot be ascertained after reasonable enquiry, by addressing it to him by the description of “owner” of the building (describing it) to which the notice relates and by affixing it to some conspicuous part of the building.”

The facts

The Appellant was the billing authority for premises at 1 Kingsway WC2B 6AN. On 5 March 2012 a completion notice specifying 1 June 2012 as the completion date was delivered by hand to the building, where it was given to a receptionist employed by the facilities management company responsible for managing the building on behalf of the owner, UKI (Kingsway) Limited. The completion notice was addressed to the “Owner, 1 Kingsway, London WC2B 6AN”. 

Neither the facilities management company nor its receptionist had any authority to accept the service of legal documents on behalf of the owner. The receptionist scanned the completion notice and transmitted it electronically to the owner. It was not known precisely when this occurred but there was no doubt that the completion notice had been received by the owner by this means not later than 12 March 2012, a week after it was delivered to the building.

The decision of the Valuation Tribunal

The owner appealed against the completion notice to the Valuation Tribunal for England on the grounds that (a) it was invalid by reason of the fact that it had not been addressed to it by name, and (b) it had not been validly served.

The President of the VTE (Professor Graham Zellick QC) held that the legislation did not impose a requirement that a completion notice be addressed to the intended recipient by name (contrary to the view he himself had expressed in earlier decisions), and that the notice dated 5 March 2012 had therefore been a valid completion notice.

However, he allowed the appeal on the ground that the completion notice had not been validly served. He rejected the billing authority's submission that good service of the completion notice had been effected because it had made its way into the hands of the intended recipient, albeit indirectly. He held that Parliament would have used words much more explicit and specific if its intention were to remove "service" of a completion notice so far outside the accepted methods of service in relation to civil proceedings and related matters. Leaving the notice, without the owner's name, with a receptionist not employed by the owner and not authorised to accept service of such documents at a building in which the owner had no presence could not constitute service "on the owner" in the statutory context 

The decision of the Upper Tribunal

On appeal to the Upper Tribunal (Lands Chamber) the billing authority argued that the President of the VTE had been right to hold that the completion notice was valid, but wrong to hold that it had not been validly served. The adopted adopted the converse position.

The Deputy President of the Lands Chamber (Mr Martin Rodger QC) allowed the billing authority’s appeal.

He agreed with the President of the VTE that the statutory scheme did not impose a requirement that a completion notice be addressed to the intended recipient by name. The only requirements as to the form and contents of a completion notice were those contained in paragraph 2(1) of Schedule 4A, i.e. it must specify the building to which it relates and the date proposed by the billing authority as the completion date. It was not necessary for the smooth operation of the statutory scheme to imply any additional requirements.

On the question of service, the Deputy President accepted the billing authority’s submission that the word ‘serve’ in paragraph 1(1) of Schedule 4A should be given its ordinary meaning of delivery of a document to a particular person (see Tadema Holdings Ltd v Ferguson (2000) 32 HLR 866). Paragraph 8 of Schedule 4A was permissive in nature; it was for the local authority to decide what method of service to adopt.

Whether or not the method of service adopted by the billing authority was effective depended on whether the document was delivered in such a way as to come into the hands of the intended recipient. In the present case there was no question that the completion notice had come into the hands of the owner. The fact that it had done so in more than one stage (passing through the hands of an employee of the facilities management company), or in electronic form, did not prevent effective service.

Accordingly, the Deputy President held that service of the completion notice had taken place when the electronic copy arrived in the hands of the owner no later than 12 March 2012.

Comment

Although this decision is concerned with service of a notice in a specific statutory context, it is likely to be highly persuasive in other contexts as well. Unless there is something in the statutory or contractual scheme to indicate otherwise, the word ‘serve’ will be given its ordinary meaning of delivery of a document to a particular person. If the method of delivery chosen by the giver results in the notice finding its way into the hands of the intended recipient, good service is likely to have been effected.