UKI (Kingsway) Ltd v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Lord Kitchin,Lord Kerr,Lord Carnwath,Lady Hale,Lord Lloyd-Jones |
| Judgment Date | 17 December 2018 |
| Neutral Citation | [2018] UKSC 67 |
| Court | Supreme Court |
| Date | 17 December 2018 |
[2018] UKSC 67
Lady Hale, President
Lord Kerr
Lord Carnwath
Lord Lloyd-Jones
Lord Kitchin
Appellant
Sebastian Kokelaar
(Instructed by Tri-Borough Shared Legal Services)
Respondent
Daniel Kolinsky QC
Luke Wilcox
(Instructed by River Island Clothing Co Ltd)
Heard on 6 November 2018
( with whomLady Hale, Lord Kerr, Lord Lloyd-JonesandLord Kitchinagree)
This appeal raises a short issue as to the requirements for valid “service” of a completion notice so as to bring a newly completed building within liability for non-domestic rates.
Liability for non-domestic rates depends on a property being entered as a hereditament in the rating list. The completion notice procedure, under section 46A of and Schedule 4A to the Local Government Finance Act 1988, as inserted, (“the Act”) provides a mechanism whereby a new building, which has not yet been occupied, may be brought into the rating list. Subject to any appeal, a validly served completion notice has the effect that the building to which it relates is deemed to have been completed on the date specified in the notice. It is then shown in the rating list as a separate hereditament (or hereditaments), and is valued as if it were complete (section 46A(2)). Once the building is so shown in the rating list, its owner (or its occupier if it becomes occupied) becomes liable to an assessment for non-domestic rates.
The procedure is set out in Schedule 4A. Paragraph 1(1) of Schedule 4A provides that, if it comes to the notice of a billing authority that the work remaining to be done on a new building in its area can reasonably be expected to be completed within three months, it shall (unless the valuation officer directs otherwise) “serve … on the owner of the building” a notice, known as a “completion notice”. Paragraph 1(2) contains a similar provision in respect of a new building that has been completed.
The completion notice must (a) specify the building to which it relates and (b) state the day which the billing authority proposes as the completion day (para 2(1)). In the case of a building which has yet to be completed, the completion day proposed should be:
“[s]uch day, not later than three months from and including the day on which the notice is served, as the authority considers is a day by which the building can reasonably be expected to be completed.” (para 2(2))
In the case of a building which appears to have been completed, it should be “the day on which the notice is served” (para 2(3)).
A person on whom the completion notice is served may appeal to the Valuation Tribunal on the ground that the relevant building has not been or cannot reasonably be expected to be completed by the day stated in the notice (para 4(1)). Where an appeal is not withdrawn or dismissed, the completion day shall be “such day as the tribunal shall determine” (para 4(2)). An appeal must be brought within 28 days “after the date on which the appellant received the completion notice …” (Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (SI 2009/2268) regulation 19(1), made under paragraph 8(2)(a) of Schedule 11 to the Act).
Paragraph 8, which deals with service, provides:
“Without prejudice to any other mode of service, a completion notice may be served on a person -
(a) by sending it in a prepaid registered letter, or by the recorded delivery service, addressed to that person at his usual or last known place of abode or, in a case where an address for service has been given by that person, at that address;
(b) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at their registered or principal office or sending it in a prepaid registered letter or by the recorded delivery service addressed to the secretary or clerk of the company or body at that office; or
(c) where the name or address of that person cannot be ascertained after reasonable inquiry, by addressing it to him by the description of ‘owner’ of the building (describing it) to which the notice relates and by affixing it to some conspicuous part of the building.”
General provision for the service of statutory notices by local authorities is also made by section 233 of the Local Government Act 1972. In particular it provides:
“(7) If the name or address of any owner, lessee or occupier of land to or on whom any document mentioned in subsection (1) above is to be given or served cannot after reasonable inquiry be ascertained, the document may be given or served either by leaving it in the hands of a person who is or appears to be resident or employed on the land or by leaving it conspicuously affixed to some building or object on the land.”
As to the date of service, under such statutory provisions, section 7 of the Interpretation Act 1978 provides:
“Where an Act authorises or requires any document to be served by post (whether the expression ‘serve’ or the expression ‘give’ or ‘send’ or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
In January 2009 the respondent (“UKI”) began the redevelopment of a building at 1 Kingsway to provide 130,000 sq ft of office space. In February 2012 the appellant council informed UKI's agents that it intended to serve a completion notice specifying a completion date of 1 June 2012. It asked the agents to confirm the identity of the owner of the building, but the agents declined to do so without obtaining instructions from their client which were not forthcoming. At that time the building was managed by Eco FM (“Eco”) under a contract with UKI, but Eco had no authority to accept service of documents on its behalf.
On 5 March 2012, the council delivered a completion notice by hand to the building, specifying 1 June 2012 as the completion date. The notice was addressed to the “Owner, 1 Kingsway, London WC2B 6AN”. It was given to a receptionist employed by Eco, who scanned and emailed a copy of the notice to UKI. It was received by UKI not later than 12 March 2012.
On 29 March 2012 an appeal was lodged by UKI's agents against the completion notice, purportedly “on behalf of Eco”, on the grounds (inter alia) that the service of the notice was invalid. On 7 May 2013, the premises were brought into the list with a rateable value of £2,750,000 with effect (as subsequently corrected) from 1 June 2012. This was met by a proposal on behalf of UKI that the entry be deleted. The proposal was not accepted by the valuation officer and was transmitted to the Valuation Tribunal for determination on appeal.
The appeals against both the completion notice and the inclusion of the premises in the list were consolidated and heard by the Valuation Tribunal (President Graham Zellick QC), which allowed the appeal. That decision was reversed by the Upper Tribunal (Deputy President Martin Rodger QC) [2015] RA 433 but re-instated by the Court of Appeal (Gloster, Macur, and King LJJ) [2017] PTSR 1606.
The Court of Appeal (para 37) recorded as common ground:
i) that the state of the premises at the relevant time was such that, but for the deeming effect of a completion notice, the premises could not have been entered in the rating list;
ii) that the name and address of UKI as owner of the building could have been ascertained by the council by reasonable inquiry, notwithstanding the fact that UKI had instructed the agents not to divulge its name. Accordingly, the council could not rely on the means of service on the premises permitted by paragraph 8(c) of Schedule 4A to the Act, or section 233(7) of the Local Government Act 1972.
The issue for this court, as identified in the agreed statement of facts and issues, is whether the completion notice was validly served on the date that it was received by UKI, in circumstances where:
i) it was not delivered directly to UKI by the council, but passed through the hands of the receptionist employed by Eco, who was not authorised for that purpose by either party;
ii) it was received by UKI in electronic rather than paper form.
It is common ground that, by virtue of the opening words of paragraph 8 of Schedule 4A to the Act, the three specific methods there set out do not exclude other methods of service available under the general law. There is no serious dispute as to what that entails. In Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177, 185 CA (a case under the Landlord and Tenant Act 1954), Lord Salmon said:
“According to the ordinary and natural use of English words, giving a notice means causing a notice to be received. Therefore, any requirement in a statute or a contract for the giving of a notice can be complied with only by causing the notice to be actually received —unless the context or some statutory or contractual provision otherwise provides …”
(No distinction is drawn in the cases between “serving” and “giving” a notice: see Kinch v Bullard [1999] 1 WLR 423, 426G.) To similar effect in Tadema Holdings Ltd v Ferguson (1999) 32 HLR 866, 873, Peter Gibson LJ said (in a case relating to service of a notice under the Housing Act 1988):
“‘Serve’ is an ordinary English word connoting the delivery of a document to a particular person.”
Specific statutory provisions such as paragraph 8 are designed, not to exclude other methods, but rather to protect the server from the risk of...
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