[2024] UKUT 140 (LC)

Section 233 of the Local Government Act 1972 ("the 1972 Act") makes special provisions for the service of documents by local authorities. These are less demanding than provisions applicable to documents served by other parties, including section 196 of the Law of Property Act 1925 (“the 1925 Act”) and section 7 of the Interpretation Act 1978.

Omitting parts which are not relevant to this appeal, section 233 of the 1972 Act provides as follows:

Section 233 is in wide terms. In Birmingham City Council v Bravington [2023] EWCA Civ 308 the Court of Appeal determined that it is not limited in its application to notices, orders or documents which a local authority wishes to give or serve in connection with the discharge of one of its public law functions. At [19] to [25], Newey LJ gave six reasons why section 233 should be read as having general application to all notices, orders or other documents given by an authority where that is required or authorised by or under any enactment (subject to the specific exceptions in subsections (9) and (10) for documents in connection with court proceedings or which are excluded by the terms of a statute or instrument). The first and most important reason was that the wide application of section 233 was in accordance with the natural reading of its language, which did not suggest any limitation to circumstances in which a local authority was discharging public law functions.

Newey LJ also distinguished the earlier decision of the Court of Appeal in Enfield London Borough Council v Devonish (1997) 29 HLR 691 which had been relied on in support of a narrower application of section 233, and explained that the issue which that case had decided was not whether a local authority had to be acting in a public law capacity for section 233 to be applicable, but whether the section applied in relation to an ordinary notice to quit for which there was no particular statutory provision. It had been determined that (the tenant not being resident at the property) such a notice was not “required or authorised” under any enactment, but was required only by common law, so that section 233 did not apply.

Finally Newey LJ disagreed with the approach taken by this Tribunal (Judge Cooke) in London Borough of Southwark v Akhtar [2017] UKUT 150 (LC), which, at [74], had relied on Devonish for the proposition that section 233 is applicable only where an enactment requires or authorises service by a local authority in its capacity as a local authority.  That part of the reasoning in Akhtar had not been necessary for the decision and did not bind the Court of Appeal. In view of the Court of Appeal’s decision in Bravington, the Tribunal’s comments in Akhtar, at [74],should no longer be relied on.

Moving on, section 196 (4) and (5), 1925 Act are not restricted in their application to notices or documents served by local authorities but apply generally to notices required or authorised by the 1925 Act or required by any instrument affecting property executed after its commencement, as follows:

“(4)

Any notice required or authorised by this Act to be served shall ... be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of Part 3 of the Postal Services Act 2011) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

(5)

The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.”

Section 196(4) is of much wider application than section 233. In particular, it is not restricted to local authorities, and it is available in connection with documents required to be served by “any instrument affecting property”, and not simply documents required or authorised “by or under any enactment” as in the case of section 233. Any such document will be treated as having been “sufficiently served” if the procedure is followed. But section 196(5) applies only to documents sent by post in a registered letter; in contrast, section 233(2) does not require the use of registered post and so is less administratively burdensome. It is for that reason that, in this appeal, the Council is keen to obtain confirmation that section 233 is available to it in connection with monitoring compliance with licence conditions.

Finally, section 7 of the 1978 Act (which is the modern re-enactment of section 26 of the Interpretation Act 1889, referred to in section 233(4)) provides that any document which a statute requires or authorises to be sent by post will be deemed to have been served if it is sent by ordinary post, unless the contrary is proved. It is in these terms:

“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.”

For the purpose of proceedings in Court, (subject to proof to the contrary) it is assumed that that delivery will be effected “in the ordinary course of post”, in the case of first class mail, on the second working day after posting, and in the case of second class mail, on the fourth working day after posting; working days exclude weekends and bank holidays (see Practice Direction (QBD: Postal Service) [1985] 1 W.L.R. 489). Although strictly this rule of thumb does not apply to tribunal proceedings, I can see no reason why it may not safely be adopted.

Section 7, 1978 Act applies to notices given by local authorities, because section 233(2), 1972 Act, specifically authorises service by post. It also applies to notices and other documents served under the 1925 Act or any instrument affecting property (at least in relation to documents required by statute), because section 196(4) and (5) authorise service of those by post.

But the effect of section 7 is sometimes misunderstood, particularly as it relates to the consequences of an intended recipient proving that the relevant document was not delivered. This was explained by the Court of Appeal in R v County of London Quarter Sessions Appeals Committee ex parte Rossi [1956] 1 QB 682, but the three separate judgments delivered in that case (by Denning LJ, Morris LJ and Parker LJ) are not consistent with each other. In Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch), Morgan J reviewed the subsequent authorities which have commented on and followed Rossi and explained that these have tended to place greatest weight on the judgment of Parker LJ, who said this, at page 700:

“The section, it will be seen, is in two parts. The first part provides that the dispatch of the notice or other document, in the manner laid down, shall be deemed to be service thereof. The second part provides that unless the contrary is proved that service is effected on the day when in the ordinary course of post the document would be delivered. This second part, therefore, concerning delivery as it does, comes into play and only comes into play in a case where under the legislation to which the section is being applied the document has to be received by a certain time. If in such a case "the contrary is proved", i.e. that the document was not received by that time or at all, then the position appears to be that though under the first part of the section the document is deemed to have been served, it has been proved that it was not served in time.”

This narrow interpretation of section 7 was applied by the Court of Appeal in Rushmoor Borough Council v Reynolds (1991) 23 HLR 495, a case concerning service of a notice under the Local Government (Miscellaneous Provisions) Act 1976 requiring a landlord to provide information. The notice was served by hand delivery to the house in multiple occupation in which the landlord was known to reside, but it was never received by him. The local authority relied on section 233 and contended that service of the notice was effective, whether or not it had reached the landlord. The landlord argued that he was entitled to prove that he had not received the notice and relied on section 7. The Court of Appeal found in favour of the local authority. As to section 7 Watkins LJ said this, at page 498:

“[Counsel for the local authority], in my view, correctly contends that the only matter which could be contested, as is clear from section 7, by the respondent in this case had the notice been sent by post was the time at which the document was actually delivered at his premises. Otherwise, he asserts that whether the method chosen by the appellant was sending the document through the post or, as was done, by causing a servant or agent to deliver it through the letter-box, the presumption is the same by dint of sections 233 and 7, namely that service has been effected and cannot be denied; in other words, it is an irrebuttable presumption and nothing can be said to the contrary.”

In Bravington the Court of Appeal relied on Rushmoor in support of its interpretation of section 233, as Newey LJ explained, at [41]:

“In all the circumstances, I agree with Mr Manning that it is irrelevant when Mr Bravington became aware of the Notice. Like section 23 of the 1927 Act, section 233 of the 1972 Act is, in my view, designed to allocate the risks of a failure of communication and "to avoid disputes on issues of fact … where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain". To adapt Slade LJ's words, section 233 offers a local authority "choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive [the notice]".

The effect of a local authority serving a document by ordinary post (as permitted by section 233, 1972 Act) is therefore that it is deemed to have been validly served, whether or not it was actually received. The effect of section 7, as explained in Rossi, is that if some issue of timing arises it is open to the intended recipient to prove that the document was not delivered when it ought to have been or was not delivered at all.

The latter point may be significant in the context of the financial penalty regime, the details of which are contained in Schedule 13A, 2004 Act, because various of its provisions require that procedural steps may not be taken before, or in some cases after, a particular point in time. For example, paragraph 1 of Schedule 13A requires that, before imposing a financial penalty a local authority must give the person concerned a notice of its intention to do so, which by paragraph 2(1) must be given before the end of the period of six months beginning with the day on which the authority became sufficiently aware of the conduct it intends to penalise. If the intended recipient proves that the notice was not delivered in the ordinary course of post, although the notice may be deemed to have been given, it may not be possible for the authority to show that it was given within the permitted window (especially if it is proved that the notice was not received at all).