Gloucestershire County Council, R (on the application of) v Keyway (Gloucester) Ltd.

MR JUSTICE SULLIVAN: This is a prosecutor's appeal by way of case stated against a decision by the Justices for the County of Gloucester sitting at Cheltenham on 10th March 2003.

On 28th November 2002 an information had been preferred by the appellant that:

On 10th March the Justices did not deal with the substantive merits of the information because they were asked to deal with a preliminary issue: whether the stop notice had been served on the respondent company. They concluded that it had not and dismissed the information on that ground.

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.

An enforcement notice must specify the date on which it is to take effect (section 173, subsection (8)) and this must be at least 28 days after it is served (section 172, subsection (3)). If an appeal is made against the notice before it has taken effect, the notice is effectively 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.

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:

Section 184 provides:

Pausing there, it is not in dispute that an enforcement notice dated 13th November 2002 was served by the appellant on the respondent. The notice took effect (subject to any appeal by the respondent) on 13th December 2002 and required the respondent to stop importing and tipping waste materials on the site. The stop notice referred to in the case stated was dated 13th November 2002, said that it took effect on 19th November, and required the importation and depositing of waste on the site to cease on that date.

Before turning to the appellant's endeavours to serve the stop notice on the respondent, it is helpful to set out the enactments which deal with service. Section 329 of the Act deals with "Service of Notices" and provides, so far as material, in subsection (1):

Subsection (4) provides:

The Act was a consolidating act and the provisions of section 329(1)(d), re-enacted provisions which 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 Town and Country Planning Act).

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:

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 appellant to have effected service in accordance with either section 233 of the 1972 Act or section 329 of the Act. Mr Dove QC, on behalf of the respondent, did not dissent from that proposition.

In paragraph 2 of the statement of case, the Justices found that:

The Justices' findings in respect of the principal office were as follows:

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 13th 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.

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:

The question posed by the Justices for the opinion of this court is as follows:

On behalf of the appellant, Mr Wadsley submits that the stop notice was properly served on the respondent under both section 233 of the 1972 Act and section 329 of the Act. Dealing, firstly, with the 1972 Act, while "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:

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.

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.

If a stop notice could be validly served on a company by simply leaving it at the company's registered or principal office when 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 was sent to the company through the post.

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 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.

Even if I had accepted Mr Dove's submission 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.

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".

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 since section 725(1) of the Companies Act 1985 (which was not referred to before the Magistrates) provides:

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 was 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".

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 that was afforded by section 329 of the Act. Nevertheless, since submissions were made, it may be helpful if I summarise my views on this issue as follows.

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) in section 329 deals separately, in paragraph (d), with corporate persons, and the references to "last known place of abode" in paragraphs (b) and (c) are indications that those paragraphs are intended to deal with natural, not corporate persons. The same applies to paragraph (a) since it is necessary for there to be an explanation (such as that provided in paragraph (d)) as to how a Local Planning Authority is to 'deliver' a document to a corporate body.

I accept Mr Dove's submission that it is necessary to give effect to all of the words in paragraph (d) so that to effect service on a company under section 329, it is not sufficient if reliance is not placed on 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 is given the alternative of sending the document by post. I have dealt with this issue shortly because the appellant did not have to rely upon section 329 for the reasons set out above.

For completeness it should be noted that the case stated by the Justices is concerned, solely, with the question 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.

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 notice must not be earlier than three days after the date when the notice is served (absent special circumstances) and must not be later than 28 days from the date when the notice is 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".

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 the whether the present stop notice was 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 was not served with the stop notice, nevertheless knew or could reasonably have been expected to have known of its existence.

Had the first part of the Magistrates' 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 was served with the stop notice.

MR WADSLEY: My Lord, in those circumstances I think the order should be that the case be remitted to the Justices with your Lordship's answers to the questions stated and they be told to continue with the hearing.

MR JUSTICE SULLIVAN: Yes. It sounds slightly impertinent. I am not sure what the order is.

MR WADSLEY: I put it in that way because the sort of order has certainly been made in this type of case but if it is not the common form of order now, I am quite sure your Lordship is right. My Lord, there is an application for costs on the part of the Council against Keyway. There is a schedule that has been served. I will hand your Lordship a copy. (Handed)

MR JUSTICE SULLIVAN: Yes. Can I find out, Mr Dove, is there an argument about the principle?

MR DOVE: There is no argument about the detail but there is an argument I would like to make about the principle. It is simply this. Obviously, as I think my learned friend indicated in opening, this is a situation about which there is no authority and, clearly, your Lordship had to wrestle with the submissions of both sides and come to a view in order to assist us, but more particularly to assist the Magistrates. As far as my client is concerned, it was, in effect, optional as to whether or not they participate in these proceedings at all because the Justices having reached the decision that they did, it was then entirely for the council to decide whether or not they proposed to take these proceedings.

Having done so they would, whether or not we would have decided to appear, have had to come to persuade your Lordship that the Magistrates were in error. My submission is that, rather like the interested person, I am, in effect, an interested person in these proceedings and unless it be the case that we have added materially to the costs involved in what would have inevitably have to have been litigated by the Council in order to make the prosecution go further, the Justices having reached the decision that they had, in my submission the appropriate order would be no order as to costs.

My submission is I do not ask for my costs, obviously, but what I do say is that the costs that the prosecution in effect, that is to say the Council, have incurred, they would have to have incurred in event.

MR JUSTICE SULLIVAN: If I just ask why they would have had to incur them because of the ruling the Justices made? It is quite obvious the preliminary point was taken on behalf of the defence, effectively saying, "This is all hopeless because we were not served".

MR DOVE: We were quite entitled to do so. What I say is in relation to these proceedings, not those proceedings. In these proceedings my learned friend would have had to have taken this course, or another course with appeal to the Crown Court, but in these proceedings our participation --

MR JUSTICE SULLIVAN: He could not have come to the Crown Court.

MR DOVE: No. We could have. But my point is this, that in these proceedings we could have chosen to participate or not and if we had not chosen to participate, there would have been no difference whatsoever to costs that they have had to incur and they would not have been entitled, if we had not come, to say they would like the costs of these proceedings against Keyway.

MR JUSTICE SULLIVAN: Thank you very much. Mr Wadsley, I do not think I need trouble you on that. In my judgment, the respondent started this hare running and will have to pay the costs, I am afraid, for putting it out of its misery. Whatever the position might have been had the respondent not appeared, the respondent did appear, sought to uphold the Magistrates' decision and therefore, in my judgment, should be ordered to pay costs. You said you did not take any issue with the detail.

MR DOVE: No. The only other matter is I would ask for permission to take the matter further and hopefully interest the Court of Appeal in what is, in my submission, a point of law of some importance and wider application.

MR JUSTICE SULLIVAN: Yes. What do you want to say about it? Does it go to the Court of Appeal? Do you go through here to the Lords? It is Magistrates. Effectively, you can imagine me sitting here with two shadowy figures. Maybe I am wrong. I think you have to get a certificate from me that there is a point of law of general public importance and leave to go to the Lords. The associate is nodding but if you have any different views --

MR DOVE: I am simply asking.

MR JUSTICE SULLIVAN: You want to go further?

MR DOVE: Wherever it may be, yes.

MR JUSTICE SULLIVAN: Let us do these things in stages. First of all, appeal allowed and the answer to the question posed by the Justices is that it is sufficient for the Planning Authority to prove that they have left a copy of the stop notice at the registered office or the principal office of the company and it is not necessary to prove that the document has actually been delivered into the hands of the director or secretary of the company.

The respondent is to pay the claimant's costs. Those costs are to be summarily assessed in the sum of £6,759.91. So far as the application for permission to appeal is concerned, I am not prepared to grant leave but I would be prepared to consider whether there was a point of law of general public importance so that Mr Dove could seek to persuade their Lordships that permission to appeal ought to be granted. I do not think it is a sensible course to try to formulate that on the hoof this afternoon.

What I would do, Mr Dove, is to ask you to formulate your question in writing, if you would. Would you please consult with Mr Wadsley, show it to him, and then you can either jointly -- or you send it to me as to what the question is and Mr Wadsley, obviously, send a copy to him. He can make submissions as to whether or not that is appropriate. I am not saying I will certify the question, I am saying I want to see the question before I decide.

MR DOVE: Would your Lordship be good enough to give us seven days to consider. First of all, clearly, the reason for rising is because I need to do it now whilst we are all gathered. If your Lordship would be good enough to give us seven days to consider the position and advise the court one way or the other whether we wish to pursue that point. If it is the position that we wish to take the matter further, I will liaise with my learned friend within that seven days and produce, certainly, our draft and hopefully an agreed draft of the point.

MR JUSTICE SULLIVAN: I will give you fourteen days to submit a question to me. That will enable you to take time to take instructions. You will have sufficient chance to discuss it with Mr Wadsley to reach an agreed view or not. You submit your question to me within fourteen case days. If it is not agreed then you are to serve it on the Council at the same time as sending it to the court and the Council can have another seven days to make observations about it and then I will decide whether I am prepared to accept it.

MR DOVE: Thank you very much.

MR JUSTICE SULLIVAN: Then nobody is feeling they have to protect their position by putting in something immediately. Thank you.