UK: Have You Been Served? An Update On Valid Service Of Local Authority Completion Notices For Ratings Liability (And Beyond?)

Last Updated: 11 January 2019
Article by Bryan Johnston, Oliver Saunders and Thomas Kiernan

The Supreme Court has laid down new guidance on when a business rates completion notice has been validly served in UKI (Kingsway) Ltd v. Westminster City Council [2018] UKSC 67.

Overturning the Court of Appeal, the court held that a completion notice had been validly served despite being delivered by a company not authorised to accept service which subsequently forwarded the notice, by email, to the owner.

BUSINESS RATES AND COMPLETION NOTICES

Assuming they are not entitled to any relief, an owner of newly-built or redeveloped commercial property becomes liable to pay National Non-Domestic Rates (known commonly as business rates) once that property is entered into the ratings list.

The procedure for entering a property into the ratings list is set out in Schedule 4A of the Local Government Finance Act 1988 (the LGFA 1988). In short, a local authority may serve a "completion notice" on the owner if it appears that the building has been completed or is reasonably expected to be completed within three months. The effective date of this notice then determines when liability for business rates begins to accrue.

A property owner can appeal against a completion notice on various grounds, including that the notice was not validly served.

FACTS

UKI (Kingsway) Limited (the Owner) was redeveloping premises at 1 Kingsway, London (the Property). In March 2012, Westminster City Council (the Authority) hand delivered a completion notice to the Property to take effect in June 2012.

As the Authority did not know the identity of the Owner, it addressed the notice to "Owner, 1 Kingsway, London, WC2B 6AN". It was left with the receptionist at the Property, who was not employed by the Owner, but by the Owner's agents. Importantly, the agents were not authorised to accept service and the Authority was made aware that they had not served on the Owner. The receptionist subsequently sent a scanned copy of the notice by email to the Owner. The Owner subsequently appealed the notice on the grounds it had not been validly served.

The court was asked to determine two issues:

(1) whether notice can be valid when effected indirectly (and through the hands of a third party under no authority of either party); and

(2) whether the notice was validly received in an email format.

DECISION

The court found for the Authority and held that the service was valid and that it had been received by the Owner.

Indirect service

The emphasis of the judgment was on the "causal link" between the Authority delivering the notice to the Property and the Owner actually receiving it. It did not matter that the notice had been left with the receptionist of the agent company, nor that the Authority had no control over the receptionist to direct her to forward it to the Owner. By sending the notice to the Owner, the receptionist had done "nothing more than what would be reasonably expected of a responsible employee" – analogous to a friendly neighbour returning post to the correct recipient.

There was therefore a clear causal connection between the Authority's delivery and the Owner's actual receipt and therefore service was valid under the ordinary principles of causation.

Notwithstanding the above, the court held that the Authority can generally rely on the statutory provisions under Paragraph 8 of Schedule 4A to the LGFA 1988 which set out three methods for serving completion notices. In particular, Paragraph 8(c) provides that if the owner's identity cannot be ascertained after reasonable inquiry then service would be valid by simply addressing the notice to the "Owner" and affixing it to a conspicuous part of the building. The Authority in this case could not rely on that provision because it accepted it could have ascertained the Owner's identity with reasonable inquiry and had simply failed to carry out that inquiry.

The list of methods of service in Paragraph 8 are not exhaustive, so it remained open for the Authority to serve under the general law instead (in this case causation principles).

Service by email

On the second aspect of the case – whether the notice was validly received by email – the court considered that the Electronic Communications Act 2000 enabled specific modification of statutes to permit communication by electronic means. Although the cases in which the 2000 Act had been used established fax transmission as a valid means of communication, the court could not see any good reason to distinguish email communication.

COMMENTARY

This case is notable for practitioners and property owners alike and its effects are likely to be felt in the evolving case law on service of statutory notices.

The court has determined that: (a) a completion notice can be served even when not actually delivered to the recipient but via a third party; (b) that an agent who is not instructed to accept service may, in certain circumstances, be part of a causal chain amounting to good service; and (c) that email receipt of a notice can be good receipt. All of these seem to sit uncomfortably with well-established common law principles on the service of notices.

In terms of immediate impact for property developers/owners, the decision does not reflect a significant increase in risk because an owner would actually have to receive the notice for the causal link to be complete. However, as local authorities can also rely on the statutory methods of service which can protect the authority from failed service in a number of other circumstances, challenging a completion notice on purely service grounds is likely to be difficult.

It remains to be seen whether this decision applies beyond the context of business ratings completion notices. However, since the Authority had to rely on common law service (rather than a statutory method of service) there is no obvious reason why it should be so limited.

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