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Serving s. 215 notices

Referee iStock 000006306507XSmall 146x219The Court of Appeal has issued an important ruling on the service provisions in the Town and Country Planning Act 1990 and the Local Government Act 1972. Heather Sargent sets out the key issues.

The Court of Appeal last week handed down judgment in Oldham MBC v Tanna [2017] EWCA Civ 50. The issue on the appeal was whether the notice pursuant to section 215 of the Town and Country Planning Act 1990 (“the 1990 Act”) upon which Oldham relied had been validly served. The judge at first instance had held that it had not. Arden and Lewison LJJ allowed Oldham’s appeal. 

The first issue on appeal was what was required by way of service on a person’s “last known address” for the purposes of section 233 of the Local Government Act 1972 and a person’s “last known place of abode” for the purposes of section 329 of the 1990 Act. It was common ground that the server of the notice had to take reasonable steps to find out what the intended recipient’s current address was. Oldham contended that the judge at first instance had erred in holding that it had not taken the requisite reasonable steps. 

Lewison LJ (with whom Arden LJ agreed) considered the decisions of the Divisional Court in Newham LBC v Ahmed [2016] EWHC 679 (Admin) and of Cranston J in Newham LBC v Miah [2016] PTSR 1082 and agreed with the conclusions reached. He held: 

“[28] …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”.

The second issue on appeal concerned the requirement in section 329(3) of the 1990 Act that the notice be addressed to “the owners and any occupiers”. Oldham contended that it had effectively served the Section 215 Notice under that provision notwithstanding that it had addressed the notice simply to “The Owner”. Lewison LJ accepted that argument, reasoning as follows: 

“[29] 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? […]

[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…”. 

Heather Sargent is a barrister at Landmark Chambers. She appeared for the appellant, Oldham MBC. Heather can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..


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