Stop notice — Service — Validity — Town and Country Planning Act 1990 — Defence under section 183(3) — Whether stop notice left at company’s registered and principal office validly served — Whether notice must be brought to attention of responsible officer — Whether “person” in section 233(2) of Local Government Act 1972 meaning “natural” not “corporate” person
The appellant council served a stop notice on the respondent, pursuant to section 183 of the Town and Country Planning Act 1990. It had been left at the reception desk of the respondent’s registered and principal office with an unidentified person. Following non-compliance with the notice, the council preferred an information against the respondent alleging contravention. Before the justices, the respondent contended, inter alia, that service had not been effected. It relied upon the defence, pursuant to section 187(3) of the 1990 Act, that it did not know, and could not reasonably have been expected to have known, of the existence of the stop notice. It argued that, because a breach of a stop notice constituted a criminal offence, a restricted approach should be adopted when interpreting section 233 of the Local Government Act 1972; this section provides that “such a document may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address…” (emphasis supplied). Accordingly, it was not sufficient to serve a notice on a company by leaving it at its registered or principal office, where it could be overlooked; the section meant a natural not a corporate person, and the word “may” should be read as “must”. On a preliminary issue, the justices concluded that the notice had not been served on the respondent, and dismissed the information without hearing the substantive merits of the case. The council appealed.
Held The stop notice was served on the respondent under section 233 of the 1972 Act.
The answer to how a document may be served on a company secretary is found in section 233(2) of the 1972 Act. The methods include leaving it at the company secretary’s proper address, which is defined in subsection (4)(a) as the company’s “registered or principal office”: see [25]. Service of a document by a local authority may lead to criminal liability, but that is no reason to adopt a strained and unnatural interpretation of section 233. Service is effected on corporate bodies by sending documents through the post. It is to be expected that companies will make the necessary |page:116| administrative arrangements to ensure that the correct persons within the company hierarchy have sight of important documents: see [26]. It is not necessary for the purposes of effecting service under section 233 to prove that the document has actually been delivered into the hands of a director or secretary of the company. It is strictly unnecessary to consider the alternative method of service that is afforded by section 329 of the 1990 Act.
This was an appeal by Gloucestershire County Council by way of case stated against a decision of the Justices for the county of Gloucester, sitting in Cheltenham on 10 March 2003, dismissing an information against Keyway (Gloucester) Ltd.
SULLIVAN J:
[1] This is a prosecutor’s appeal by way of case stated against a decision by the Justices for the county of Gloucester sitting in Cheltenham on 10 March 2003.
[2] On 28 November 2002, an information had been preferred by the appellants that:
Keyway (Gloucester) Limited, did contravene a stop notice issued pursuant to section 183 of the Town and Country Planning Act 1990 in respect of land at Colemans Farm, Elmstone Hardwicke, Gloucestershire the stop notice having been served on Keyway (Gloucester) Limited on 13th November 2002 which notice prohibited the importation and depositing of all waste material on land at Colemans Farm, Elmstone Hardwicke, Cheltenham, Gloucestershire [the site] contrary to section 187 of the Town and Country Planning Act 1990.
[3] On 10 March 2003, the justices did not deal with the substantive merits of the information because they had been asked to deal with a preliminary issue: namely whether the stop notice had been served on the respondent company. They concluded that it had not and dismissed the information on that ground.
[4] The statutory scheme may be summarised as follows. Under section 172 of the Town and Country Planning Act 1990 (the Act), a local planning authority may issue an enforcement notice where it appears to the authority that there has been a breach of planning control and that it is expedient to issue the notice.
[5] An enforcement notice must specify the date upon which it is to take effect (section 173(8)) and this must be at least 28 days after it has |page:117| been served (section 172(3)). If an appeal is made against the notice before it has taken effect, the notice will effectively be suspended until final determination of the appeal, which may take place many months later, particularly if there is an appeal to the High Court under section 289 of the Act.
[6] Since it may be desirable to bring unlawful development to an immediate halt, section 183 enables the local planning authority to serve a stop notice. Subsection (1) states:
Where the local planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a “stop notice”) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.
[7] Section 184 provides:
.-(1) A stop notice must refer to the enforcement notice to which it relates and have a copy of that notice annexed to it.
(2) A stop notice must specify the date on which it will take effect (and it cannot be contravened until that date).
(3) That date –
(a) must be not earlier than three days after the date when the notice is served, unless the local planning authority consider that there are special reasons for specifying an earlier date and a statement of those reasons is served with the stop notice; and
(b) must not be later than twenty-eight days from the date when the notice is first served on any person.
…
(6) Where a stop notice has been served in respect of any land, the local planning authority may display there a notice (in this section and Section 187 referred to as a “site notice”)…
Section 187(1) states:
If any person contravenes a stop notice after a site notice has been displayed or the stop notice has been served on him he shall be guilty of an offence.
Subsection (3) makes provision for a defence:
In proceedings for an offence under this section it shall be a defence for the accused to prove —
(a) that the stop notice was not served on him, and
(b) that he did not know, and could not reasonably have been expected to know, of its existence.
[8] Pausing there, it is not in dispute that an enforcement notice dated 13 November 2002 was served by the appellants on the respondent. The notice took effect (subject to any appeal by the respondent) on 13 December 2002, and required the respondent to stop importing and tipping waste materials on the site. The stop notice referred to in the |page:118| case stated was dated 13 November 2002, said that it took effect on 19 November and required the importation and depositing of waste on the site to cease on that date.
[9] Before turning to the appellants’ endeavours to serve the stop notice on the respondent, it is helpful to set out the enactments that deal with service. Section 329 of the Act deals with “Service of Notices” and provides, so far as material, in subsection (1):
Any notice or other document required or authorised to be served or given under this Act may be served or given either –
(a) by delivering it to the person on whom it is to be served or to whom it is to be given; or
(b) by leaving it at the usual or last known place of abode of that person, or, in a case where an address for service has been given by that person, at that address; or
(c) by sending it in a prepaid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode, or, in a case where an address for service has been given by that person, at that address; or
…
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office, or sending it in a prepaid registered letter, or by the recorded delivery service, addressed to the secretary or clerk of the company or body at that office.
[10] Subsection (4) provides:
This section is without prejudice to section 233 of the Local Government Act 1972 (general provisions as to service of notices by local authorities).
[11] The Act was a consolidating Act, and the provisions of section 329(1)(d) re-enacted provisions that had been contained in the 1971, 1962 and 1947 Town and Country Planning Acts. First enacted in section 105(1)(d) of the 1947 Act, the only subsequent amendment was the addition of a reference to recorded delivery in section 214(1)(d) of the 1962 Act. Thereafter, the provision has remained unchanged: see section 283(1)(d) of the 1971 Act.
[12] Subsection (4) was added by the Planning and Compensation Act 1991. Section 233 of the Local Government Act 1972 provides, so far as is material:
.-(1) Subject to subsection (8) below, subsections (2) to (5) below shall have effect in relation to any notice, order or other document required or authorised by or under any enactment to be given to or served on any person by or on behalf of a local authority or by an officer of a local authority.
(2) Any such document may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
(3) Any such document may –
(a) in the case of a body corporate, be given to or served on the secretary or clerk of that body;
… |page:119|
(4) For the purposes of this section and of section 26 of the Interpretation Act 1889 (service of documents by post) in its application to this section, the proper address of any person to or on whom a document is to be given or served shall be his last known address, except that –
(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body…
Subsection (10) provides:
Except as aforesaid and subject to any provision of any enactment or instrument excluding the foregoing provisions of this section, the methods of giving or serving documents which are available under those provisions are in addition to the methods which are available under any other enactment or any instrument made under any enactment.
[13] Pausing there, it is plain from subsection 329(4) of the Act and subsection 233(10) of the 1972 Act that the newer methods of service contained in the 1972 Act are additional to the older methods of service contained in section 329 of the Act. Thus, it was sufficient for the appellants to have effected service in accordance with either section 233 of the 1972 Act or section 329 of the Act. Mr Ian Dove QC, on behalf of the respondent, did not dissent from that proposition.
[14] In para 2 of the statement of case, the justices found that:
On 13th November 2002 the Respondents’ registered office was “Newbliss”, Rudford, Gloucester and the respondents’ principal office was Corinium House, Luther Challis Business Centre, Corinium Avenue, Barnwood, Gloucester. The Respondents’ Company Secretary was Ms Sarah Catherine Christie.
The justices then set out their findings in respect of the registered office and the principal office. As to the former, they found:
(c) Mr Worrallo (Process Server employed by the County Council) visited Newbliss Farm, Rudford, Gloucester on 13th November 2002, with an envelope containing a “stop notice” for service on Sarah Catherine Christie (Company Secretary). The envelope was correctly addressed.
(d) On 13th November 2002 Mr Worrallo spoke to an unidentified woman at Newbliss Farm. This woman agreed to deliver the documents to Ms Christie (Company Secretary). Mr Worrallo described this lady to the court but did not obtain a name, signature or receipt for the document.
(e) Service of this “stop notice” was not sent by registered or recorded delivery.
(f) The “stop notice” was delivered by Mr Worrallo, (Process Server) by hand to an unidentified female at Newbliss Farm.
(g) The unidentified female as described by Mr Worrallo (Process Server) did not fit the description of Ms Christie (Company Secretary).
[15] The justices’ findings in respect of the principal office were as follows:
(h) On 13th November 2002 the process server (Mr Worrallo) went to the principal office (Corinium House) with the “stop notice” contained in an envelope, which was correctly addressed. |page:120|
(i) The Process Server (Mr Worrallo) went through the front door of Corinium House and handed the envelope containing the “stop notice” to an unidentified male person standing behind the desk in the reception area.
(j) Mr Worrallo (Process Server) did not obtain the name of this unidentified male person behind the reception desk at Corinium House, nor did he obtain a receipt.
(k) Mr Worrallo (Process Server) left the envelope containing the “stop notice” with the unidentified man behind the reception desk with instructions to pass the envelope to a director or officer of Keyway (Gloucester) Limited. The Process Server (Mr Worrallo) left without obtaining a response whether in the negative or affirmative from the unidentified male.
(l) The envelope containing the “stop notice” when left at the principal office by Mr Worrallo (Process Server) was not addressed specifically to Ms Christie (Company Secretary).
(m) The reception desk at Corinium House is only manned by a female receptionist from 9.00 am till 5.30 pm, and the identity/position of the male within the company or even whether he was employed by the company was not clarified or confirmed by any witness.
(n) Service of the “stop notice” was not sent by registered or recorded delivery.
[16] The justices then summarised the evidence given by Mr Worrallo, Ms Christie, her sister-in-law, Ms Hudson, who was living at Newbliss Farm on 13 November, and Mr Brian McGurk, a director of the respondent company and the husband of Ms Christie. It is unnecessary to set out that evidence since no issue is taken with the justices’ factual findings. The only question is whether they were entitled to conclude, upon the basis of those findings, that the stop notice had not been served on the respondent.
[17] After summarising the rival submissions, the justices concluded that service of the stop notice was not effected at either the registered or the principal office of the respondent and that:
(c) The “stop notice” was delivered in person by Mr Worrallo (Process Server) and was not handed directly to the Company Secretary (Ms Christie) at either the registered or principal offices of Keyway (Gloucester) Limited.
(d) The “stop notice” was left at both the registered and principal offices of Keyway (Gloucester) Limited, with unidentified people.
(e) The envelope containing the “stop notice” when left at the principal office by Mr Worrallo (Process Server) was not addressed specifically to Ms Christie (Company Secretary).
(f) The applicant did not take all such steps as were reasonably practicable to effect proper service because the appellant could have sent the “stop notice” by recorded or registered mail.
[18] The question posed by the justices for the opinion of this court is as follows:
Whether in order to prove effective service of a stop notice under the Town and Country Planning Act on a limited company it is sufficient for the Planning Authority to prove that they have left a copy of the stop notice either at the registered office or at the principal office of the company in accordance with section 233(2) and 233(4) of the Local Government Act 1972, or alternatively whether as found by the Magistrates it is necessary to prove |page:121| that the document has actually been delivered into the hands of a Director or Secretary of the company.
[19] On behalf of the appellants, Mr Peter Wadsley submits that the stop notice had been properly served on the respondent under both section 233 of the 1972 Act and section 329 of the Act. Dealing, first, with the 1972 Act, although “person” is not defined in subsection (1), by virtue of section 5 of, and Schedule 1 to, the Interpretation Act 1978, it includes a body corporate, such as the respondent, unless the contrary intention appears. Mr Wadsley submits that no such contrary intention appears in section 233. Subsection (4) defines “The proper address of any person… in the case of the body corporate or their secretary or clerk…”, thus making it clear that a person in section 233 may be either a natural or a corporate person. Thus, substituting the word “company” for “person” in subsection (2), section 233 authorised service on the respondent company:
either by delivering it to [the company] or by leaving it at [the company’s] [registered or principal office] or by sending it by post to [the company] at that address.
[20] Whatever else may or may not have been done by Mr Worrallo, he left the stop notice at both the company’s registered office and at its principal office; thus, service was effected under section 233.
[21] On behalf of the respondent, Mr Dove submitted that a restricted approach should be adopted when interpreting section 233. A breach of a stop notice is a criminal offence: it is therefore vital that a corporate body should have its attention specifically drawn to the existence of a stop notice. This need is reinforced by the provisions of subsection 187(3), under which a defendant has to prove not merely that he did not know, and could not reasonably have been expected to have known, of the existence of a stop notice, but also that it was not served upon him.
[22] If a stop notice could be validly served on a company by simply leaving it at the company’s registered or principal office, where it might easily be overlooked and not come to the attention of anyone in a position of authority in the company, the defence afforded by subsection (3) would be effectively nullified. He submitted that “person” in subsection (2) of section 233 meant a natural, not a corporate, person. Service of companies was dealt with separately under subsection (3). The word “may” in that subsection should, effectively, be read as “must”. Thus, he submitted, the stop notice had to be given to, or served on, the company secretary in person, unless it were sent to the company through the post.
[23] I accept Mr Wadsley’s submissions. The word “person” in subsections (1) and (2) of section 233 includes both natural and corporate persons. No contrary intention appears in the section; rather, subsection (4) makes it plain that “person” includes a body corporate as well as its secretary or clerk. A company may be served by posting the document to its registered or principal office, by leaving it at the company’s registered or principal office, or by delivering it to the company. Since there may be some doubt as to how one might be able to deliver a document (otherwise |page:122| than by leaving it with or posting it) to a corporate body, subsection (3) provides that the document may (not must) be given to, or served on, the company’s secretary or clerk. Thus, the document may be given to the secretary or clerk at an address other than the company’s registered or principal office.
[24] Even if I had accepted Mr Dove’s submissions that “person” in subsection (2) does not include a company and that subsection (3) is, in effect, a mandatory provision dealing with service of documents upon a corporate entity, Mr Worrallo would still have effected service on the company by leaving the stop notice at the company’s registered and principal offices, since, in addition to giving the document to the company secretary, subsection (3) enables the document to be “served” on the company secretary.
[25] How is a document to be served on the secretary of a company? Mr Dove sought to persuade me that it could not be served in the ways described in subsection (2), despite the fact that the company secretary is, plainly, a natural person. I have no hesitation in rejecting that submission. The answer to the question – how may a document be served on a company secretary? – is to be found in subsection (2). The methods include leaving it at the company secretary’s proper address, which is defined by subsection (4)(a) as the company’s “registered or principal office”.
[26] I appreciate that service of a document by a local authority may well lead to criminal liability, but that is no reason to adopt a strained and unnatural interpretation of section 233. Since it enables documents to be served on corporate bodies by sending them through the post, it is to be expected that companies will make the necessary administrative arrangements to ensure that the right persons within the company hierarchy see important documents. I can see no reason why the same approach should not be adopted in relation to documents that are left at the company’s registered or principal office. Any company that fails to make such arrangements does so at its peril because section 725(1) of the Companies Act 1985 (which was not referred to before the magistrates) provides:
A document may be served on a company by leaving it at, or sending it by post to, the company’s registered office.
[27] Thus, any company worth its salt will make arrangements to ensure that documents left at its registered office will be dealt with administratively in such a way as to ensure that they reach the correct recipient within the company. For these reasons, I conclude that the stop notice had been served on the company under section 233 of the 1972 Act, and the answer to the first part of the question posed by the justices is “Yes”.
[28] In answer to the justices’ second question, it is not necessary, for the purposes of effecting service under section 233, to prove that the document has actually been delivered into the hands of a director or secretary of the company. It follows that it is strictly unnecessary to consider the alternative method of service afforded by section 329 of the |page:123| Act. Nevertheless, since submissions were made, it may be helpful if I summarise my views on this issue as follows.
[29] The structure of section 329 differs from that of section 233. There is no equivalent of subsection (1) or subsection (2) in section 233, both of which appear to deal with persons both natural and corporate. Subsection (1) of section 329 deals separately, in para (d), with corporate persons, and the references to “last known place of abode” in paras (b) and (c) are indications that those paragraphs are intended to deal with natural, not corporate, persons. The same applies to para (a), since it is necessary for there to be an explanation (such as that provided in para (d)) as to how a local planning authority are to “deliver” a document to a corporate body.
[30] I accept Mr Dove’s submission that it is necessary to give effect to all the words in para (d) so that to effect service on a company under section 329 it is not sufficient if reliance is not placed upon the postal service merely to deliver the document at the company’s registered or principal office. The document has to be delivered to a particular person at that office, namely the secretary or clerk of the company. Since such an obligation might well be burdensome because, for example, the company secretary might be away from the registered office, or, indeed, be deliberately evasive, the local planning authority are given the alternative of sending the document by post. I have dealt with this issue shortly because the appellants did not have to rely upon section 329 for the reasons set out above.
[31] For completeness, it should be noted that the case stated by the justices is concerned solely with the question of whether the stop notice was served upon the company. The justices were not asked to, and did not, address the second limb of the defence in section 187(3)(b), namely that the company did not know, and could not reasonably have been expected to know, of the existence of the stop notice.
[32] Neither Mr Wadsley nor Mr Dove appeared before the justices. The case deals with the preliminary issue as it was presented to the justices. A person may contravene a stop notice even though he has not been served: see section 187(1). However, it is clear that, for section 187(1) to bite, there must have been effective service on someone: see section 184(3)(b) and (6). A stop notice cannot be contravened until a date specified in the notice. That date must not be earlier than three days after the date upon which the notice was served (absent special circumstances), and must not be later than 28 days from the date upon which the notice was first served on any person. Under subsection (6), a site notice may be displayed only “where a stop notice has been served in respect of any land”.
[33] Thus, for a contravention of a stop notice to be based upon the fact that a site notice has been displayed, there has to have been prior service of the stop notice on someone. The statement of case contains no information as to whether the present stop notice had been served on any other person or whether there was a site notice, and there is no finding as to whether the company, even if it had not been served with the stop |page:124| notice, nevertheless knew, or could reasonably have been expected to have known, of its existence.
[34] Had the first part of the justices’ question been answered in the negative and the second part in the affirmative, it would have been appropriate for them to have investigated these other issues. In the event, they do not arise since, for the reasons set out above, the company had been served with the stop notice.
Stop notice served.
