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Tenant wins appeal over service of notice as she pursues private prosecution of council over mice infestation

A tenant seeking to bring a private prosecution against a council over a mice infestation has won an appeal over her compliance with the notice requirements of the Environmental Protection Act 1990 (EPA).

The judgment of the Divisional Court in Allen v London Borough of Ealing [2021] EWHC 948 (Admin) followed an appeal by way of case stated from District Judge (MC) Iyundo in Ealing Magistrate's Court.

The appellant, Ms Allen, alleges statutory nuisance of mice infestation at the property she rents from Ealing Council.

Section 82(6) of the EPA provides that before such a private prosecution may be brought, a notice of intention to do so must be given. Section 160 of the EPA applies to the giving or serving of notices required by the EPA, including a notice under s. 82(6).

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The appeal concerned the interpretation and application of s. 160, which is in similar language to sections addressing service and giving of notices in a number of other statutes.

Ms Allen's solicitors, Alexander Shaw Solicitors, had sent a written notice by recorded delivery post to the council more than the required 21 days before the prosecution commenced.

It was addressed to "the London Borough of Ealing" but not to any identified person or department. It was not addressed to the "secretary or clerk" who are individuals identified in s. 160(3) and (4) of the EPA; nor was it addressed to the department within the council which dealt with these matters, which was the Housing Litigation Team.

The district judge dealt with the question of the validity of the notice as a preliminary point at a hearing on 3 January 2020. He accepted the council's argument that service of the notice had been ineffective, with the result that the court had no jurisdiction to issue the summons or to consider Ms Allen's complaint.

The district judge stated a case under section 111 of the Magistrates' Court Act 1980, which raised the following two questions:

i) Was I correct to find that a Notice under section 82(6) of the [EPA] must, by section 160(3) of the Act, be served on or given to the Clerk or Secretary of a Body Corporate or any identifiable person or Department of the Body Corporate, (given the 21 day time limit to respond to such a Notice)?

ii) Was I correct to find that proper Service of a Notice was not proved (and the Complaint/Summons must be dismissed) in circumstances where, notwithstanding the provisions of section 160(3) of the Act, the prosecutor contends that s/he can prove actual/physical receipt of the Notice at the Body Corporate's proper address?

The Divisional Court (Lord Justice Popplewell and Mr Justice Cavanagh) said the questions in the case stated should be answered as follows:

i) The district judge should have not have found that a notice under section 82(6) of the EPA 1990 must, by section 160(3) of the Act, be served on or given to the clerk or secretary of a body corporate or any identifiable person or department of the body corporate. The requirements of section 160(2) and s160(3), as regards notice, are permissive, not mandatory. A notice complies with s. 160 (2) and 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 further identification of an addressee. The district judge should have found that proper service of the Notice was proved in this case in circumstances in which the notice was addressed to the "London Borough of Ealing" and was sent by Recorded Delivery post to the Respondent's principal address. This was effective service in accordance with the EPA 1990, section 160(2).

ii) The district judge should also have found that valid service had been effected when, having been sent by post, the notice was signed for by "Mark" at the Respondent's principal address. In light of the undisputed evidence, the district judge should have found that the person who accepted and signed for the notice had actual authority to accept service on behalf of the Respondent.

The appeal was therefore allowed.

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