Oldham Metropolitan Borough Council v Tanna [2017] EWCA Civ 50

Case No B2/2016/2694[2017] EWCA Civ 50
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
MR RECORDER KLEIN
1IQ56528
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/02/2017
Before
LADY JUSTICE ARDENLORD JUSTICE LEWISON
Between
OLDHAM METROPOLITAN BOROUGH COUNCILAppellantTANNARespondent
Heather Sargent (instructed by Oldham Metropolitan Borough Council) for AppellantHuw Shepheard (instructed by Rohita Tanna) for RespondentHearing Hearing date: 2 nd February 2017
Judgment
[1]The issue on this appeal is whether Oldham MBC validly served notice under section 215 of the Town and Country Planning Act 1990 on Mr Tanna. Mr Recorder Klein held that it had not.[2]Since 3 December 1996 Mr Tanna has been the registered proprietor of what was an unoccupied, run down and derelict former nursing home, whose address was Lake View, King’s Road, Oldham. Oldham decided to serve notice under section 215 (1) of the 1990 Act which provides:
“If it appears to the local planning authority that the amenity of a part of their area, or of an adjoining area, is adversely affected by the condition of land in their area, they may serve on the owner and occupier of the land a notice under this section.”
[3]The significance of this is that, if validly served, the notice paved the way for Oldham to demolish the property and to recover the cost of doing so from Mr Tanna.[4]Mr Whitworth-Hamilton, an officer in Oldham’s planning department, was responsible for implementing Oldham’s decision. The proprietorship register of the registered title at HM Land Registry gave Mr Tanna’s address as 8 Greenfield Close, Davenport, Stockport (“Greenfield Close”). In January 2009 Mr Whitworth-Hamilton had posted an envelope addressed to Mr Tanna at Greenfield Close. Although that envelope had reached its destination it had been returned to Oldham. Someone had written on the envelope “Not here!”. Mr Whitworth-Hamilton said that this had rung alarm bells, because the return of the letter led him to believe that someone did not want to receive mail. On 29 June 2009 Mr Whitworth-Hamilton purported to serve notice on Mr Tanna under section 215 on Oldham’s behalf. The notice was addressed to “The Owner of Lake View, King’s Road, Oldham”. It was addressed to that person at Greenfield Close; and Mr Whitworth-Hamilton delivered it by placing it by hand through the letter box at Greenfield Close having elicited no response by knocking on the front door. The judge also found that he affixed conspicuously a second copy of the notice to some part of the land at Lake View. That notice was also addressed to “The Owner of Lake View, King’s Road, Oldham”. In addition to these notices, Mr Whitfield-Hamilton also served notice at an address at Dairyground Road, which was an address that colleagues in Oldham’s credit control department had given him as an address at which they were in correspondence with Mr Tanna.[5]At the date when the notices were served Mr Tanna did not live at Greenfield Close. He had lived there with his parents for some time before 2007, but in November 2008 he had moved to Brentford. He had never lived at Dairyground Road. Oldham had no knowledge of the Brentford address at the time when the notices were served. However, it appears from the judge’s findings (although it is not entirely clear) that before the notices were served Mr Tanna had been communicating with a different department of the council by e-mail so that some officers had an e-mail address for him. No one in the planning department knew of that e-mail address.[6]There are two relevant statutory provisions which deal with the service of notices: section 233 of the Local Government Act 1972 and section 329 of the 1990 Act.[7]Section 233 (2) of the 1972 Act provides that any notice authorised by any enactment to be served on any person by a local authority:
“… may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.”
[8]Section 233 (4) provides that, with irrelevant exceptions, “the proper address of any person to or on whom a document is to be given or served shall be his last known address.”[9]Section 329 (1) (b) of the 1990 Act provides that a notice authorised to be given under the Act may be served on a person:
“by leaving it at the usual or last known place of abode of that person or, in a case where an address for service has been given by that person, at that address”
[10]Section 329 (3) provides:
“Where— (a) the notice or other document is required to be served on or given to all persons who have interests in or are occupiers of premises comprised in any land, and (b) it appears to the authority required or authorised to serve or give the notice or other document that any part of that land is unoccupied, the notice or document shall be taken to be duly served on all persons having interests in, and on any occupiers of, premises comprised in that part of the land (other than a person who has given to that authority an address for the service of the notice or document on him) if it is addressed to “the owners and any occupiers” of that part of the land (describing it) and is affixed conspicuously to some object on the land.”
[11]It is, I think, also relevant to consider the rules about the contents of the proprietorship register at HM Land Registry. Unfortunately these were not shown to the judge. When Mr Tanna became the registered proprietor the rules in force were the Land Registration Rules 1925. Rule 6 provided:
“The Proprietorship Register… shall contain the name … and address of the proprietor of the land…”
[12]Rule 315 (1) provided:
“The address of any person, as entered in the register shall, unless he shall direct otherwise, be his address for service.”
[13]The rules currently in force are the Land Registration Rules 2003. Rule 8 provides that the proprietorship register must contain, where appropriate, the name of the proprietor and:
“(c) an address for service of the proprietor of the registered estate in accordance with rule 198”
[14]Rule 198 provides:
“(1) A person who is (or will as a result of an application be) a person within paragraph (2) must give the registrar an address for service to which all notices and other communications to him by the registrar may be sent, as provided by paragraph (3).”
[15]This class of person includes a registered proprietor. Rule 198 (3) goes on:
“(3) A person within paragraph (1) must give the registrar an address for service which is a postal address, whether or not in the United Kingdom.”
[16]Rule 198 (4) enables a person to have two additional addresses (which may include an e-mail address); and rule 198 (5) enables him to give the registrar a replacement address. What is important about these rules is that the address required to be given is an address for service.[17]Oldham argued before the judge that it served valid notice on Mr Tanna at his “last known address” (s 233 of the 1972 Act) or “last known place of abode” (section 329 of the 1990 Act). In either case, Oldham argued that that place was Greenfield Close.[18]The judge rejected that argument. He reasoned as follows. The word “known” in the two phrases “last known address” and “last known place of abode” includes both actual knowledge and constructive knowledge: R (Tull) v Camberwell Green Magistrates Court [2004] EWHC 2780 (Admin), [2004] RA 31 at [18]; Collier v Williams [2006] EWCA Civ 20, [2006] 1 WLR 1945 at [71]. Thus a former address will only be the “last known” address if the server of the notice has taken reasonable steps to find out what the intended recipient’s current address is. What he would have found out on making reasonable inquiries will be knowledge imputed to him. Oldham does not challenge these steps in the legal analysis.[19]The judge held that what Mr Whitfield-Hamilton ought to have done was to have contacted all Oldham’s departments to see if they had contact details for Mr Tanna. If he had done that the regeneration department would have provided him with Mr Tanna’s e-mail address. Armed with that information, he ought to have e-mailed Mr Tanna asking him to provide a postal address; and Mr Tanna would have complied with that request. Since Mr Whitfield-Hamilton had not taken these steps, Oldham was not entitled to rely on Greenfield Close as being Mr Tanna’s ”last known” address or place of abode.[20]So far as the notice left at the property was concerned, the judge held that it was also invalid. The reason why the judge held that that notice was not validly served was that the notice was addressed to “The Owner of Lake View, King’s Road, Oldham.” Section 329 (3) of the 1990 Act required the notice to be addressed to “the owners and any occupiers.” Where the server of a notice wished to take advantage of deemed service provisions (especially where the recipient of the notice might be exposed to criminal sanctions) he must comply precisely with the statutory requirements. Even though the land was in fact unoccupied, the omission of any reference to the occupiers meant that Oldham had not complied with section 329 (3).[21]In my judgment the judge was wrong on both points. The question of service of a notice under the 1990 Act arose before the Divisional Court in London Borough of Newham v Ahmed [2016] EWHC 679 (Admin). The notice in question was an enforcement notice requiring the cessation of use of a property in Rothesay Road, Forest Gate as three self-contained flats. The address of the registered proprietors was given as an address in Benfleet in Essex. The enforcement notice was sent by post to the Benfleet address. However, that was not where the registered proprietors lived, and Newham was in fact corresponding with them at a different address on matters unconnected with the enforcement notice or the property in Rothesay Road. After the enforcement notice had expired Newham prosecuted the owners for failing to comply with it; and before the District Judge the owners argued that they had not been properly served with the notice. The District Judge found in their favour and acquitted them. Newham argued on appeal that the Benfleet address was the owners’ current known address “as demonstrated by the fact that it was their registered address at the material time.” The District Judge had found that it was a proper address for service and that Newham was entitled to rely on it. The reason why service was held to have been invalid was not the address but the mode of service (ordinary post rather than recorded delivery). Hamblen J (with whom Laws LJ agreed) said at [32]:
“In summary, on the basis of the District Judge's findings, the Benfleet address was the proper known address for service. As such, the appellant was entitled to serve the notice by sending it by post to that address pursuant to section 233 of the 1972 Act and the District Judge's contrary conclusion is wrong in law.”
[22]Mr Shepheard, who appeared for Mr Tanna on the appeal, but who did not appear below, said that although this decision was not wrong, the court was constrained by the district judge’s findings of fact. I do not agree. If anything the facts found by the District Judge (namely that Newham was in fact corresponding with the Ahmeds at a correct current address) were stronger than the facts of our case.[23]It is fair to say that there is little reasoning in support of the court’s conclusion; and it does not appear that the court was referred to the relevant Land Registration Rules. However, in my judgment, consideration of those rules reinforces the Divisional Court’s conclusion. The land register maintained at HM Land Registry is an open register, capable of inspection by the public; and has been since 1988. The right to inspect the register is now contained in section 66 of the Land Registration Act 2002. As the Law Commission explained in their report Land Registration for the Twenty-First Century at 9.37:
“Its contents are no longer regarded as a private matter relevant only to the parties to a conveyancing transaction, but as a source of public information about land that can be used for many purposes unconnected with conveyancing.”
[24]The 1925 rules provided that a person’s address for service would be the address given in the register, unless he directed otherwise. The rule is very generally expressed, and is not on its face confined to service of notices and documents under the Land Registration Act itself. The 2003 rules state in terms that the address stated in the proprietorship register is an “address for service”. It is no doubt the case that the primary purpose of the requirement (in both sets of rules) that a registered proprietor must give an address for service is to enable notices and other documents to be served under the Land Registration Act itself. However, the fact that the address thus given appears in a public part of the register indicates that its use is not necessarily confined to internal administrative purposes.[25]In Newham LBC v Miah [2016] EWHC 1043 (Admin), [2016] PTSR 1082 officers in Newham’s planning department served an enforcement notice on Mr Miah, relating to a breach of planning control at a property that he owned. They served it at the address given for him in the proprietorship register at HM Land Registry. Mr Miah was not living there. In fact Newham’s finance department had Mr Miah’s home address because they had billed him for council tax there. The magistrates found that Newham had not served the enforcement notice at Mr Miah’s last known address because of the knowledge of Newham’s finance department. Cranston J reversed their decision. Cranston J emphasised that the function of serving an enforcement notice is one that is given to “the local planning authority” (as in this case) rather than to the council as a whole. The important part of his judgment said at [21]:
“To my mind the statutory framework points clearly to the knowledge of the local planning department being relevant as regards service of an enforcement notice, not the Council as a whole. That knowledge comes from the proprietorship register at the Land Registry. That construction of the 1990 Act is supported by the policy context. The planning department cannot be expected to trawl through the records of the Council as a whole to see whether the registered owners of property have another address in the borough for council tax purposes, by reason of having a market stall or other licence, because they receive some sort of welfare benefit or because their children are in local authority schools. Moreover, even if the planning authority did find another address elsewhere in the Council it would not always be evident which would be the current address for the person on whom an enforcement notice is to be served.”
[26]Cranston J also drew support for his conclusion from Newham v Ahmed. He concluded at [23]:
“The correct interpretation of the relevant statutory provisions is that if a local authority is not provided with a current address by the owner of property, it is entitled to use the address at the Land Registry as the proper address to serve an enforcement notice.”
[27]I agree.[28]Once again it does not appear that Cranston J was referred to the relevant Land Registration Rules; but if he had been it could only have reinforced his conclusion. I would hold that as a general rule, unless there is a statutory requirement to the contrary, in a case in which i) a person (in this case the local planning authority rather than the council taken as a whole) wishes to serve notice relating to a particular property on the owner of that property, and ii) title to that property is registered at HM Land Registry, that person’s obligation to make reasonable inquiries goes no further than to search the proprietorship register to ascertain the address of the registered proprietor. It is the responsibility of the registered proprietor to keep his address up to date. If the person serving the notice has actually been given a more recent address than that shown in the proprietorship register as the address or place of abode of the intended recipient of the notice, then notice should be served at that address also.[29]So far as the second copy of the notice is concerned, I would also hold that the judge was wrong. It is clear that Oldham failed to comply with the statutorily prescribed form of words. It is equally clear that Acts of Parliament ought to be complied with. But the fact of non-compliance is not the end of the inquiry. It is necessary to pose the further question: Can Parliament fairly be taken to have intended total invalidity in the event of non-compliance on the scale of Oldham’s non-compliance? The intense focus on the consequence of the particular non-compliance with statutory requirements is a well-trodden path in the law: see e.g. London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182; R v Soneji [2005] UKHL 49, [2006] 1 AC 340; Petch v Gurney [1994] 3 All ER 731; Newbold v The Coal Board [2013] EWCA Civ 584, [2014] 1 WLR 1288.[30]Suppose that a person who wished to serve notice in accordance with section 329 (3) of the 1990 Act fixed two copies of the notice to a conspicuous part of the land: one addressed to “the Owner” and the other addressed to “the Occupiers”. That would not amount to literal compliance with the prescribed form of words. Could it be said, in those circumstances, that Parliament must have intended that no valid notice had been served? Mr Shepheard said that the answer was “Yes”. But, at least to my mind, he was unable to give any convincing policy reason for that answer; and I would reject that submission.[31]It is a fundamental principle of the interpretation of statutes that Parliament does not intend an absurd or futile result. If there are no occupiers of the land in question (and it is known that there are no occupiers) it seems to me to be futile to require the server of a notice to address it to “the occupiers” knowing full well that there are none. I cannot see that the intended recipient of the notice, if he is the registered proprietor of the property, gains anything (other than an adventitious defence) by the inclusion of “the occupiers” in the addressees of the notice. I do not consider that in such circumstances Parliament can have intended that the omission to include “the occupiers” as addressees of the notice leads to the conclusion that it was not validly served on the owner, to whom it was addressed. Of course, as Ms Sargent accepted, if there were in fact occupiers of the land in question they would not have been validly served by a notice addressed only to “the Owner”; but that does not arise on the facts of this case.[32]I would allow the appeal.[33]I agree.

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