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When is a notice validly served?

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Summary: A rating authority is today bemoaning a lack of precision that has cost it a significant amount of rates income. The Court of Appeal found that a Completion Notice that was delivered by the authority to a building and addressed to the “Owner” (without specifying who was the owner) was not validly served, despite the fact that the intended recipient had, eventually, received it.

During 2009, UKI (Kingsway) Limited was redeveloping a building at 1 Kingsway, London.  Once the building neared completion, the owners’ rating surveyors engaged with the local rates billing authority to agree the date of placement of the newly developed building on the 2010 rating list.

The parties could not agree a date and eventually Westminster City Council (as rating billing authority) took matters into its own hands and served a “Completion Notice” in respect of the building, with the aim of placing the property on the rating list with an effective date of 1 June 2012.

The notice was addressed to “Owner, 1 London Kingsway, London, WC2B 6AN” and delivered by hand to a  receptionist working for the building management company.  The management company had no connection to UKI and was not authorised to accept service of correspondence on behalf of UKI.  UKI did ultimately receive a copy of the Completion Notice by email from the management company. 

The property was, subsequently, added to the rating list with a rateable value of £2.75 million.

UKI appealed on the basis that the Completion Notice was invalid for not stating the owner’s name and for being invalidly served.

Valuation Tribunal

The Valuation Tribunal (“VTE”) considered the matter and held:

  • that a completion notice is not necessarily invalid, simply because it does not state the actual name of the building owner; but
  • Under the circumstances of this case, the notice had not been properly served.

The only occasion, according to the VTE, where a notice addressed to the “Owner” of a property can be validly served is under the specific rule in Paragraph 8(c) of Schedule 4A of the Local Government Finance Act 1988 (“the Act”), which provides for a notice to be addressed to the “Owner” where the actual name cannot be ascertained after reasonable enquiry. It also provides that in these circumstances, the notice addressed to the “Owner” must be delivered by affixing it to a prominent part of the building. 

This led to the somewhat odd situation whereby the omission of the owner’s name did not invalidate the notice itself, but contributed to the conclusion that the notice had not been validly served.

Upper Tribunal

Westminster City Council appealed to the Upper Tribunal who took a different view.  It was not disputed that a copy of the Completion Notice did, eventually, find its way into the hands of UKI.  The Upper Tribunal found that the methods of service set out in Schedule 4A of the Act were permissive and not mandatory i.e. other methods of service could be used to validly serve a Completion Notice. 

As the notice had found its way to the right party (as was admitted) there was no justification for finding that service had not been effected in these circumstances.
The decision caused concern because the Completion Notice had only found its way to UKI  several days later, via email, from a third party who was not instructed to accept service on its behalf. 

There was a risk that, based on the Upper Tribunal’s approach in this case, local authorities might be encouraged to adopt a short-cut or “sloppy” approach to service of Completion Notices. 

UKI appealed to the Court of Appeal.

Court of Appeal 

It was agreed, in advance of the appeal, that the rating authority could, by reasonable enquiry, have discovered UKI’s name. This meant that paragraph 8(c) of Schedule 4A of the Act could not be relied upon by Westminster City Council to prove good service of the Completion Notice.

Accordingly, the Completion Notice could only have been validly served if the transmission of a copy of the original notice to UKI Kingsway, by a third party, not instructed to accept service on its behalf, was good service.

The Court of Appeal found that this was not good service.

The words of the relevant statute required the rating authority to “serve” the Completion Notice “on the building owner”.  Delivery of a notice to a third party, who was not instructed to accept service, could not be said to be service on the owner. The Court of Appeal held that the methods of service set out in Schedule 4A of the Act were only permissive and did not provide a complete, exclusive, or mandatory, code for service.  It would thus be open to an owner and the rating authority to agree another method of service between them, but indirect transmission of the notice could not be considered “service”.

As a consequence, the property was removed from the 2010 rating list.

Implications

For rate payers, where the service of a Completion Notice is in the offing, check how the notice has been served once it is received.  If the land in question is registered, it will be simple enough for the authority to ascertain the name of the owner.  A notice addressed to the “Owner” in accordance with paragraph 8(c) of the Act will, in those circumstances, be fairly hard to justify.

Rate payers may feel justified in declining to co-operate with the authority over the service of such notices, but when engaged, it should be made clear and agreed in writing what methods of service are acceptable.

Ultimately, this is another salutary lesson in the necessity of getting notices right and the consequences of getting things wrong, and shows that the service of notices is a serious business and there are no prizes for taking short cuts.

 

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