Local authorities and other landlords have experienced a surge in prosecutions over the last few years, brought against them by tenants for statutory nuisance under the Environmental Protection Act 1990 (the “EPA”). Before bringing such prosecutions, however, the complainant must serve on the proposed defendant a Notice of Intended Prosecution (“the Notice”) pursuant to s.82(6) EPA.
Ms Allen was a tenant of Ealing LBC. She alleged that the condition of her property amounted to a statutory nuisance. Her Notice was posted to Ealing’s principal office but was addressed merely to ‘the London Borough of Ealing’, without identifying a person or department, or being addressed to the ‘Secretary or Clerk’ (as described in s.160(3) EPA). Ealing claimed that this was not good service, and that no one who was in a position to act upon the Notice was aware of its existence until after it had expired. Ms Allen advanced evidence showing that someone called ‘Mark’, at Ealing’s principal office, had signed for the Notice.
At first instance, the District Judge dismissed the summons on the basis that the Notice ought to have been addressed to the Council’s Secretary or Clerk, or to some other identifiable person or department. The judge further found that receipt by ‘Mark’ did not result in valid service, as there was no evidence that he was in a position of authority.
Ms Allen appealed to the High Court by way of case stated.
The High Court (Popplewell LJ & Cavanagh J) allowed the appeal.
There was no requirement in s.160(3) to address the Notice to the Secretary, the Clerk, or any other identifiable person or department at the local authority.
By s.160(2), the 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 the need for further identification.
Accordingly, addressing the Notice to ‘the London Borough of Ealing’ and sending it to its principal office was good service.
The Court also said that, although no evidence had been advanced relating to the identity of ‘Mark’, it was safe to infer that he was an employee of Ealing. The District Judge should have found that ‘Mark’ had actual authority to accept the Notice on Ealing’s behalf.
In cases such as this, where the prosecution involves premises which are alleged to be prejudicial to health, recipients of notices of intended prosecution have 21 days in which to abate any nuisance (if they wish to avoid prosecution). It is therefore vital to ensure that the notice of intended prosecution makes its way to the right person or team.
As stated by the High Court, it is incumbent upon large body corporates to ensure processes are in place, by which letters that do not identify a named addressee can be forwarded to the right person – so that prompt and appropriate action can be taken.
Mathew McDermott appeared at first instance and on appeal, on behalf of the local authority.
Damian was called to the Bar in 1995, taking Silk in 2019. Read more >
Gill was called to the Bar in 1998 and I joined 42BR in August 2020. Read more >