Defending EPA 1990 prosecutions: service of Notices

Josephine Henderson analyses a key defence available to landlords to claims under the Environmental Protection Act.

This article considers just one of many potential defences to a summons issued in the Magistrates Court by solicitors on behalf of a complainant (‘C’), usually a tenant, for statutory nuisance offences. These claims are often seen as a way for solicitors to recover costs, automatically payable under s.82 of the of the Environmental Protection Act 1990 (‘EPA’) if there is a nuisance when a valid complaint is made. The use of CFAs in housing cases continues as the provision of legal aid advice for housing is disappearing in large areas of England and Wales, creating legal aid deserts [1].

Statutory nuisance is defined in s.79 of the EPA as '... any premises in such a state as to be prejudicial to health or a nuisance'. The stakes are high because after receipt of a valid notice of intention to prosecute (‘NIP’) the landlord has very little time to abate a nuisance.

The person aggrieved (‘C’) must serve a notice before beginning proceedings in the Magistrates Court. By s.82 (6) ‘Before instituting proceedings for an order under subsection (2) above against any person, the person aggrieved by the nuisance shall give to that person such notice in writing of his intention to bring the proceedings as is applicable to proceedings in respect of a nuisance of that description and the notice shall specify the matter complained of’. By s.82(7) the NIP must be given not less than twenty-one days' notice before bringing proceedings. The NIP is key to any prosecution and it requires an urgent response.

Challenging C to prove good service may be worthwhile. If C does not serve a NIP the proceedings are probably a nullity and C is not even entitled to his costs. No offence exists before the date when the statutory notice expires (R v Liverpool Crown Court, ex p. Cooke [1997] 1 WLR 700 at p.705 line H and p.709 line E). The landlord can seek to recover its costs.

What does C have to prove? Regardless of any deeming provisions, if C can prove that a NIP was actually received by D the prosecution can begin. It’s likely that the standard of proof of service is the criminal standard (beyond reasonable doubt) because the consequences are serious, failure to respond to the NIP is the essence of the offence, and the proceedings are criminal in nature Botross v LB Hammersmith & Fulham (1994) 27 HLR 168.

If C can’t prove actual notice (e.g. by letter of acknowledgement), C might argue ‘deemed service’. Proof that a NIP was sent (often by a solicitor) is not sufficient to prove service, unless one of the deeming provisions applies. If C cannot prove notice was ‘given’, C must rely on deeming provisions or his claim will be a nullity.

So, what are the deeming provisions? By 7 of the Interpretation Act 1978: ‘Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post’. Emphasis is added to show that (i) s.7 is dependent on statutory provision authorising service by post; and (ii) the presumption is rebuttable.

There is no doubt that s.7 of the Interpretation Act 1978 applies, because the EPA 1990 does authorise a document to be served by post. Section 160 of the EPA is headed ‘Service of notices’ and it permits the complaint to serve the NIP by leaving it at the landlord’s registered or principal office or posting it to that address. It may be served on or given to the secretary or clerk of that body. Section 7 of the Interpretation Act 1978 only assists C if the NIP is sent (a) to the person required by s.160 and (b) to the address required by s.160.

If C wants to rely on deeming provisions, C must ensure the NIP is sent to the person required by s.160. Arguably the letter must be addressed to the ‘secretary or clerk’ for the provisions to be satisfied (Adeshola v Southwark LBC reported in [1998] CLY 2249 and Leeds v Islington LBC [1998] Env L.R.655).

Of course, s.160 of the EPA is merely permissive: this provision is necessary to engage s.7 of the Interpretation Act 1978. A tenant or other complainant is free to serve in any manner he or she wishes. But if the authorised manner is not used, actual service must be proved. If the C cannot prove actual service, she cannot rely on the deeming provisions.

Proof of posting: the burden of proof of posting is on C. Even if s.7 of the Interpretation Act 1978 applies, s.7 requires C to prove that the letter had been properly addressed, pre-paid and posted. It may be worth putting C to proof. It may be difficult for C to identify the secretary or other person who actually put the letter in the post box (evidence that the solicitor gave a letter to their receptionist is not enough). Everyone is prone to making mistakes. It may help to show that the conduct of the case has been careless. It may be helpful to show that C never sought an acknowledgement of service (despite asking for it in the letter) or discussed the matter or referred to it in correspondence.

In any event the presumption, if it applies, is rebuttable. Even if the NIP were correctly addressed and even if C proved it had been posted, the s.7 presumption is rebuttable (recently in Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 at para.[44],[66],[70],[71]). The evidential burden shifts to that person to show he or she had not received it (Court of Appeal decision in Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood at para.[136], Gidden v Chief Constable of Humberside [2009] EWHC 2924). For these purposes (c.f. proof of a criminal offence) when s.7 uses the phrase “unless the contrary is proved”, the landlord probably only has to show on the balance of probabilities it did not get the letter (Calladine-Smith v Saveorder Ltd [2011] EWHC 250; [2012] L. & T.R. 3 per Morgan J at para.[33]).

In summary, if the first time the landlord is aware of EPA proceedings is on receipt of a summons, it is worth putting C to proof. C must prove actual service of the NIP (probably beyond reasonable doubt) or deemed service. If C wants to rely on deemed service, C must prove the NIP was actually sent (probably beyond reasonable doubt) and must comply strictly with the requirements of s.160 of the EPA and s.7 of the Interpretation Act 1978 and the NIP must be addressed to the secretary or clerk and sent to the correct address. Magistrates may be persuaded to consider the issue of service at a preliminary hearing, with or without oral evidence relating to service.

No-one should have to put up with a statutory nuisance, but where a landlord has had no notice of an intended prosecution, and no chance to put things right, it is only fair to fight back.

Josephine Henderson is a barrister at Five Paper. She can be contactedThis email address is being protected from spambots. You need JavaScript enabled to view it..

[1] Law Society