Landlord and tenant – Possession – Notice – Appellant local authority purporting to serve notice of seeking possession – Respondent tenant seeking summary judgment in his favour arguing notice not duly served on him – Whether section 233 of Local Government Act 1972 applying to service by local authority of notice under section 83ZA of Housing Act 1985 – Appeal allowed
The respondent held a secure tenancy of a flat at 9 Clunbury Road, Northfield owned by the appellant local authority. In 2019, he was convicted of offences contrary to section 31(1)(b) of the Crime and Disorder Act 1998 and section 139 of the Criminal Justice Act 1988.
In the light of those convictions, the appellant sought to serve on the respondent a “notice of seeking possession” under section 83ZA of the Housing Act 1985 stating that it intended to apply for a possession order relying on section 84A of the 1985 Act. Service was effected at the property by handing the letter containing the notice to the respondent’s girlfriend.
On 20 May 2020, the appellant claimed possession of the property on the footing that the offences of which the respondent was convicted were “serious” and committed “in the locality of” the property for the purposes of section 84A. In his defence, the respondent denied seeing the notice before the claim was served on him.
He applied for summary judgment in his favour on the basis that the appellant had no real prospect of proving that the notice had been duly served on him. He contended that section 233 did not apply to a landlord and tenant notice, relying on the Court of Appeal’s decision in Enfield London Borough Council v Devonish (1997) 29 HLR 691; [1996] PLSCS 62 that the section did not apply to service of a notice to quit.
A district judge acceded to the application and dismissed the claim. A county court judge dismissed the appellant’s appeal against that decision. The appellant appealed.
Held: The appeal was allowed.
(1) By section 83ZA(2), the court was barred from entertaining proceedings for possession of a dwelling-house under section 84A “unless the landlord has served on the tenant a notice under this section”.
Section 233 of the Local Government Act 1972 provided that 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 might 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.
Read naturally, the language of section 233 suggested that the provision applied to any notice, order or other document which a local authority gave to or served on any person where that was required or authorised by or under any enactment subject to certain exceptions. Section 233 did not on its face limit its application to circumstances in which a local authority might be said to be acting “qua local authority” or exercising a public law function.
Even if local authorities would be in a better position than other landlords, there was no necessity to treat all landlords in the same way as regards service requirements: Greater London Council v Connolly [1970] 2 QB 100 considered.
(2) The decision in Devonish was not authority for the proposition that, for section 233 to apply, a local authority had to be acting “qua local authority” or exercising a public law function. Section 233 was intended to assist local authorities to give notice in such cases, but not to relieve a local authority of obligations which fell on every other landlord including, for example, a housing association.
The question in Devonish was not whether a local authority had to be acting “qua local authority” 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. The decision did not lend any significant support to the respondent’s case.
(3) Section 233(2) stated that a notice “may be … served on the person in question… by leaving it at his proper address”. By virtue of section 233(4), “the proper address of any person… on whom a document is to be… served shall be his last known address”.
In the present case, the notice was handed to a person within the property who identified herself as the partner of the respondent and accepted the letter. Accordingly, the notice was left at the property in a manner which a reasonable person, minded to bring the document to the attention of the person to whom the notice was addressed, would have adopted: Lord Newborough v Jones [1975] 1 Ch 90 applied. R v Bromley London Borough Council, ex p Sievers [1980] 2 EGLR 145 considered.
(4) Section 233(7) stated, among other things, that a document “may be … served … by leaving it conspicuously affixed to some building or object on the land” if “the name or address of any owner, lessee or occupier of land to or on whom any document … is to be given or served cannot after reasonable inquiry be ascertained”. It must have proved impossible to ascertain the name or address of the relevant person after reasonable inquiry. The inference was that section 233(7) was intended to allow a local authority to achieve service regardless of whether the addressee received, or even learned of, a document: Chiswell v Griffon Land and Estates Ltd [1975] 2 EGLR 58, Rushmoor Borough Council v Reynolds (1991) 23 HLR 495 and Knight v Goulandris [2018] EWCA Civ 237, [2018] EGLR 191 considered.
Section 233 was designed to allocate the risks of a failure of communication and to avoid disputes on issues of fact where the true facts were likely to be unknown to the person giving the notice, and difficult for the court to ascertain. It offered a local authority choices of mode of service which would be deemed to be valid service, even if in the event the intended recipient did not in fact receive the notice. It followed that, the notice having been left at the property in such a way as to comply with section 233, it was duly served: Galinski v McHugh [1989] 1 EGLR 109, Blunden v Frogmore Investments Ltd [2002] 2 EGLR 29 and UKI (Kingsway) v Westminster City Council [2019] EGLR 5 considered.
Jonathan Manning (instructed by Birmingham City Council) appeared for the appellant; Richard Drabble KC and Tom Royston (instructed by Community Law Partnership) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Birmingham City Council v Bravington
