Ashfords Solicitors - Statutory enforcement notices - the importance of proper service

Public authorities have numerous statutory enforcement powers across a number of disciplines – planning, environmental, health and safety to name but a few. If these notices are to bite, they must be properly served on the appropriate person(s) under the legislation and at the correct address for service. Failure to do so is likely to result in the notice being of no effect or not being upheld on subsequent court proceedings. Apart from the wasted costs and embarrassment factor, this means that the authority will need to start again months or years later – assuming, of course, that the statutory time limits for action have not expired.

Where statutory enforcement notices are issued by non-legally qualified employees, public authorities should ensure that those employees fully understand the "who", "where" and "how" of service for each of the particular notices they issue. The "who" may vary according to the statutory power and often the legislation will include requirements for proper service which should also be followed.

In Butland, the local authority issued a noise abatement notice in respect of noise emanating from a shooting ground owned and operated by Mr Butland. During the course of the investigation, Mr Butland had requested all correspondence relating to the ongoing noise investigation to be sent to the shooting ground rather than his home address. The local authority then issued an abatement notice and purported to serve it at the address of the shooting ground.

On subsequent appeal, the magistrates' court held that the notice had been properly served, but the High Court held that the alternate address of the shooting ground had not become the "proper address" for service within the meaning of section 160(4) of the Environmental Protection Act 1990. Section 160(5) enables a person to specify an alternate address for receiving notices.

Somewhat harshly for the local authority, it all turned on the word "correspondence" – communication by way of letter. In his letter to the local authority, Mr Butland had referred only to receiving correspondence at the shooting ground. The High Court held that a noise abatement notice was not correspondence and the notice should therefore have been served not at the shooting ground, but at Mr Butland's home address. Whilst the distinction between receiving a client's correspondence and accepting notices is well-known to the legal profession, I doubt very much that this was in Mr Butland's mind when he wrote to the local authority. Indeed, the local authority may have been criticised had they issued the notice only to the proper address. The "belt and braces" approach would have done the trick – serve a copy of the notice at both addresses. But hindsight is a wonderful thing.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

14th March 2007

Key Contacts

Statutory enforcement notices - the importance of proper service

Introduction