Hewlings v. McLean Homes East Anglia Ltd.

Transcript date:

Thursday, July 27, 2000

Matter:

Court:

Divisional Court

Judgement type:

Substantive

Judge(s):

Rose LJ, Rafferty J

IN THE HIGH COURT OF JUSTICE NO: CO/4590/99

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Tuesday 25th July 2000

B e f o r e:

LORD JUSTICE ROSE

and

MRS JUSTICE RAFFERTY

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RICHARD HEWLINGS

-v-

McLEAN HOMES EAST ANGLIA LTD

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Computer-Aided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

190 Fleet Street, London EC4A 2HD

Telephone No: 071 421 4040 Fax No: 071 404 1424

(Official Shorthand Writers to the Court)

- - - - - -

MR R McCRACKEN (instructed by RICHARD BUXTON, CAMBRIDGE) appeared on behalf of the Applicant

MR J McGUINESS (instructed by GATELEY WAREING, BIRMINGHAM) appeared on behalf of the Respondent

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JUDGMENT

(As Approved by the Court)

- - - - - - -

Crown Copyright Tuesday 25th July 2000.

1. MRS JUSTICE RAFFERTY: The respondent company was working on a site adjacent to the appellant's private home, a listed building, when, in June 1998, he wrote to Mrs Frances Hill, accepted as being the Director and General Manager of the respondent company, at Tartan House, Etna Road, Bury St Edmunds, Suffolk. In his letter he complained of the nuisance caused to him by work that created noise, dust and damage to the drains of his house and the foundations of his wall. He made plain that he was worried about vibrations from the work which might damage his Grade 2 listed house.

2. By 1st July 1998 Mrs Hill was responding by letter, telling the appellant that the works and their progress were essential. That letter bore in its heading the name of the respondent, and not only the address to which it had been sent, to which I shall for shorthand purposes refer now as Tartan House, but also "Registered Office, Crestwood House, Birches Rise, Willenhall, West Midlands" an address to be found at the bottom of the page. Mrs Frances Hill signed that letter in her capacity as Director and general manager of the company.

3. On 7th July 1998 the appellant's solicitors wrote to her, in her capacity as Director and general manager, sending the letter to Tartan House, and giving her notice, under section 82 of the Environmental Protection Act, that he intended to bring proceedings requiring abatement of nuisance and warning that were there not abatement within three days proceedings might be brought.

4. It is agreed that Mrs Hill received that letter the next day, 8th July 1998, acknowledging it by her letter of 9th July, sending her acknowledgment from Tartan House and remarking, importantly, as follows:

"As a reputable company we take these matters seriously and I will get back to you once I have concluded my investigations."

5. That letter showed the Crestwood House address.

6. By the 15th, a summons was issued. Parties assembled in due course at Cambridge Magistrates' Court where this matter proceeded to trial on 20th July 1998. The respondent company for these purposes is categorised as McLean Homes East Anglia Limited and is wholly owned by George Wimpey Plc. The Crestwood House address is that of its registered office.

7. Before the magistrates the respondent took the preliminary point that notice had not been properly served under section 82(7). I turn to the relevant statutes.

8. In its applicable parts section 82 reads as follows:

"A noise emitted from premises so as to be prejudicial to health or a nuisance, constitutes a statutory nuisance under section 79(1)(g) of the Act.

Persons other than a district council may lodge a complaint to a Magistrates' Court if they are aggrieved by the existence of the statutory nuisance established under section 82(1). Before doing so they must give no less that three days' notice to the prospective defendant."

9. As a matter of fact in this case that was done.

10. The potential consequences of noncompliance with the notice label proceedings as either criminal or at the very least quasi-criminal in nature. Section 160 of the Act applies to any notice required or authorised.

11. The material words in section 160(2) are as follows:

"Any such notice, that being a section 82 notice required or authorised to be served on or given to a person, may be served or given 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 notice

(a) in the case of a body corporate, may be served on or given to the secretary or clerk of that body...

(4) for the purposes of this section and section 7 of the Interpretation Act 1978, the proper address of any person, on or to whom any such notice is to be served or given should be his last known address, except that-

(a) in the case of a body corporate of their secretary or clerk it shall be the registered or principle office of that body

...

And for the purposes of this subsection, the principle office of a company registered outside the United Kingdom, should be their principle office within the United Kingdom."

12. I turn now to the rival contentions of parties, the respondent averring that subsection (4) deals only with companies registered outside the United Kingdom and cannot catch this respondent company. I find nothing on the language of the statute to make that contention valid. Whether or not a Company law legislation os designed specifically for the protection of the environment and, as we shall see, contemplates a lay person enjoying its protection. All this subsection seems to me to achieve, if a company should be registered outside the United Kingdom, is provision as to its principal office.

13. Section 160(5) allows recipients of a notice to specify a further address for service. The abatement notice sent on 7th July 1998 was served, says the appellant, on the respondent at its proper address, that being its principal office. Alternatively, upon Mrs Hill as secretary or clerk of that body corporate at its proper address. Alternatively, that her July acknowledgment of receipt of the notice showed that in whatever capacity and whatever address she had had service. Alternatively, were notice not properly served, such failure can be corrected, since the provisions of section 160 of the Act are permissive and therefore do not exclude alternative methods of service.

14. Mrs Hill must have been, for the purposes of section 160(3), on notice, and prejudice to the respondent company is not made out.

15. The court was entitled to find that Tartan House was the principal office of the company on the basis of Mrs Hill's letter. The Wimpy Directory lists "McLean Homes East Anglia, director and general manager Frances Hill, Tartan House, Etna Road, Bury St Edmunds, Suffolk".

16. The respondent, however, contends that before section 79 proceedings can be instituted there must be (under section 82) notice in writing of the intention to bring proceedings within three days. Section 160 he contends specifies the means of service in the case of a company as follows: service on the company's secretary or delivery of notice to him; service on the company or its secretary at its proper address; or service on the company, or its Secretary, by postal delivery at the proper address or to him.

17. The magistrates reached these conclusions that the proceedings were of a criminal nature; the requirements as to service of notice under section 160 were mandatory; failure to serve in accordance with that section was not amenable to correction; such notice had to be served upon the company or its secretary by leaving the notice at the registered office, or serving it by post to the registered office. As the company was registered in England and Wales, it had, in compliance with the 1995 Companies Act a secretary and a registered office. As a matter of law it could not have a principal office, and Mrs Hill could not be its secretary or clerk. Therefore the notice had been improperly served.

18. The notice requirements under section 82 of the Environmental Protection Act need to be construed in accordance with their purpose within the legislation. That, in my judgment, is to provide a summary procedure for lay people to gain relief from nuisances.

19. I reject the respondent's contention that this Court should consider whether the legislation is navigable by solicitors. This is not Company legislation, but a statute specifically directed to the protection of the environment and contemplating action taken by the aggrieved layman, just as in this case.

20. The court considered the proper approach to the notice requirements under section 82, in the well rehearsed authority of Hall v Hull [1999] 2 ALL ER 609, where giving the judgment of the court, Mitchell J, remarked:

"This aspect [that is section 82] of the 1990 Act is intended to provide ordinary people, numbered amongst whom are those who are disadvantaged... with a speedy and effective remedy... Parliament's intention, in the absence of compelling statutory language, should not in our view be frustrated by introducing into this straightforward and swift statutory remedy any technical obstacle of which the ordinary citizen will almost certainly be unaware."

21. It is a fact that the respondent company's manager and director, Mrs Hill, had knowledge of this notice and, in my view, was authorised to deal with it. If it matters, directors have extensive powers, as is well established. But section 160 is in any event permissive not mandatory.

22. It is worth considering the decision of this Court in the case of Leeds v London Borough of Islington [1998] ELR 665, Divisional Court, pages 661, where my Lord, Schiemann LJ, giving the judgment of the Court, said:

"So far as bodies corporate are concerned, section 160(3) identifies the person on whom the notice is to be served. Section 160(4) identifies the address for service and section 160(5) provides that in specified circumstances an address alternative to that in section 160(4) can be used."

23. Pausing there, for a moment, that seems to me to fortify the conclusion that I have already reached, which is that this Act contemplates less rigidity than company legislation.

24. Returning to Leeds, there the notice in question was addressed to the senior estate manager, not to the clerk of the relevant local authority. His Lordship continues:

"The use of the word 'may' in this context is not one which indicates that the person specified in s 160(3) [is one] of a number of persons who may be served when it is sought to apprise the corporate body of the existence of a notice. If that was so the subsection would be redundant."

25. He goes on later to say this:

"It is clear from the case law that the requirements as to what can constitute the giving of notices have been liberally interpreted... The reasoning behind such liberal interpretation has no application for cases under the EPA which involve possible criminal penalties."

26. The respondent accepts that those comments were inevitably obiter, coming as they did after a reserved judgment.

27. Turning to the authority of Hall v Hull [1999] All ER 609 at page 619 reads the judgment:

"We do not overlook Schiemann LJ's observation in Leeds v Islington London BC."

It continues:

"The point Schiemann LJ was there considering was taken by the court after reserving judgment and appears in any event to have been obiter. The case at the hearing had turned upon whether an alternative address for service of a s 82(6) notice had been specified within the meaning of s 160(5). As we have already stated, the court held that no alternative address for the purpose of serving s 82(6) notices was specified on the rent-card. Had the court reached a different conclusion, before it could have concluded that there had been service of the section 82(6) notice for the purposes of 160(5), it would also have been necessary to consider whether the person to be served with or given any such notice's was the person who had specified the alternative address."

28. The appellant suggests further or alternatively that if the procedure under section 160(2) is not, as he contents, permissive but mandatory, then the warning notice was delivered to the respondent company, as established by its acknowledgment on 8th July. Therefore, the provisions of section 160(2) were met, as the first of those three alternatives I have already considered, that is delivery. If he is wrong about that, he argues then as one of the proper addresses of the respondent company is its principal office, another is its registered office, and as Mrs Hill answered on notepaper reciting, both, service is in terms contemplated by the statute.

29. The questions for the opinion of this Court are posed as follows, and they provide a useful framework for drawing together the arguments put to us today. First, whether in the case of these proceedings requirements as to service contained in section 160 of the Environmental Protection Act 1990 are mandatory. No other means of the service of the notice is sufficient, and whether failure to comply with those provisions is capable of correction.

30. I would answer that first question, no. The provisions contained within section 160 of the Act seem to me to be clearly on their face permissive as is demonstrated by the explicit use of the word used 'may' in contrast to the selected word 'must' in other parts of the statute.

31. No other means of the service of the notice is sufficient and failure to comply with the provisions is incapable of correction." In my view other means of service are sufficient and failure to comply is amenable to correction.

32. Second, whether in the case of a limited company registered in England and Wales there can only be a company Secretary and a registered office and not a principal office and clerk. I would answer "no"; whether in the case of a limited company service must be effected upon the company or its Secretary at its registered office, or whether it can be effected upon it, or its Secretary or clerk at its principle office. I would answer "yes". Third, if in the case of a limited company registered in England and Wales, under the Companies Act 1985 there can be

33. a "principal office" :

"We [the magistrates] (i) could, or (ii) should have found on the basis of the documents specified in paragraph 3(e) above [the statement of case that Tartan House was the principal office of the respondent company."

34. This seems to me to distil one of the two crucial questions. I would answer"yes" to both: the court could should have found, on the basis of documents before it, that Tartan House was the principal office of the respondent company.

35. The reason that that seems to me clear is to be found, first of all, in the judgment of the then Lord Chief Justice, Lord Bingham, in Pearshouse v Birmingham City Council, 4th November 1998, unreported, where he remarked:

"Section 82 is intended to provide a simple procedure for a private citizen to obtain redress when he or she suffers a statutory nuisance of any one of the various kinds itemized in s 79(1), which may relate to the state of premises or the emission of smoke or the emission of fumes or gases, or dust, steam, smell or other elluvia arising on premises, or the accumulation or deposit, or the keeping of an animal, or noise, or anything else declared by statute to be a statutory nuisance. It would frustrate the clear intention of Parliament if the procedure provided by s 82 were to become bogged down in unnecessary technicality or undue literalism. It is important that the system should be operable by people who may be neither very sophisticated nor very articulate, and who may not in some cases, unlike this appellant, have the benefit of specialized and high quality advice."

36. Those sentiments were echoed in Hall which I have referred. Lord Bingham in Pearshouse, at page 620J, dealing with the titles secretary, clerk, or equivalent, describes these nouns as:

"...simply vehicles by which the 'person to be served' may be served. In our judgment the Act does not identify the class of persons who can, on behalf of a body corporate, 'specify', for the purposes of s 160(5)."

37. Further, at page 621A:

"In our judgment what matters in the circumstances currently under review is the reality of the situation."

38. That seems to me perfectly to sum-up the genesis of this legislation, and helpfully to distil this Court's proper approach to interpretation of its sections.

39. I return to the final question posed for this Court, number 4: whether there was material before the magistrates on which they, (i) could, or (ii) should have found that notice pursuant to section 82 of the Act had been given to the respondent company.

40. This seems to me the second of two issues I have described as crucial. Accepting the label given to penalties in this case as either criminal or quasi criminal, there was ample material before the magistrates to demonstrate that the respondent company knew full well what was being alleged against it. I cannot identify any prejudice that could possibly be caused by the sending of the notice to one address or another address, when it is a fact that Mrs Frances Hill, a woman in a position of authority, and someone prepared to acknowledge that authority to the appellant, was in receipt of the notice and acted upon it.

41. Hall and Hull, epitomizes the proper approach to Parliament's intention, that is to provide a straightforward remedy to ordinary folk; it should not be frustrated by the introduction of any technical obstacle, I would respectfully adopt these sentiments echoing as they do the resonating words of Lord Bingham in Pearshouse, and I would answer, for the reasons I have given, the questions in the way I have set out.

42. LORD JUSTICE ROSE: I agree.

43. Accordingly the appeal will be allowed subject to any submission to the contrary, the case will be remitted to the Cambridge justices for them to hear and determine the complaint of 15th July 1998.