OPINION

E. K. (Applicant) v The City Of Edinburgh Council (Respondents)

Introduction

[1] This is an application under section 71(2)(a) of the Housing (Scotland) Act 1987. The applicant has submitted an application to purchase her home from the respondents. She did so shortly prior to the statutory abolition date of the right to buy. The respondents purported to serve a notice of refusal on the basis that she was in arrears of rent and council tax. The notice was sent by recorded delivery post. There is a one month deadline for the respondents to serve such a notice in terms of section 68(1). The applicant disputes the fact that she received the notice of refusal prior to the expiry of the deadline, in that she states she did not receive it all. Accordingly she seeks a finding that the respondents have failed timeously to issue a notice of refusal to her application. If that finding is made, case law indicates that the respondents would be obliged to serve upon the applicant an offer to sell, even if, but for the late notice, the respondents would have had grounds for disputing the right to purchase.

Procedure

[2] We held a hearing on 21-22 August 2017. The applicant was unrepresented. The respondents were represented by Mr David Anderson, advocate. The applicant gave evidence herself. The respondents called Ms Janice Galbraith, who had been team leader of their housing sales team at the relevant time. They also called Mr Stephen Jackson, mail services assistant and Mr David Thomson, statutory compliance officer, both of the respondents.

[3] The respondents’ pleadings suggested that actual receipt of the notice was irrelevant, where the act of posting could be proved. Prior to the hearing, the Tribunal drew parties’ attention to Duffy v Normand. In that case the Lord Justice General had pointed to a question whether it will ever be open to a party on whom a document has been served by sending it to him by the recorded delivery service to argue that it was not served on him because he did not receive it. The court did not decide the point since it had inadequate citation of authority, and indicated that if the point were to be developed careful citation of authority would be required. Before us counsel very properly referred us to authorities both in support of, and contrary to this proposition.

[4] In earlier stages of procedure the Tribunal clerks had given the applicant certain assistance in seeking to identify the correct form for the Tribunal application. There was subsequently a motion by the respondents for commission and diligence to seek recovery of certain postal records. This motion was granted, in part, by the legal member of the Tribunal. The way in which the Tribunal dealt with both these matters has resulted in a complaint from the applicant suggesting that the Tribunal did not act in an impartial manner. The complaint was answered in correspondence, and we do not repeat the complaint or ensuing correspondence here. However the applicant, we understand, has passed the matter to the Scottish Public Services Ombudsman. We mention the matter to record that, before the hearing was fixed, the legal member considered whether he should recuse himself in the light of the complaint, although he was not in fact being asked to do so. The legal member did not consider that he had exhibited bias or apparent bias in the earlier stage of proceedings and accordingly proceeded to chair the hearing. The applicant was informed that the personnel dealing with the administrative and legal aspects of the case would not be changed, by letter dated 15 June 2017.

[5] Prior to the commencement of the hearing, the applicant mentioned that she suffered from mental health problems resulting in difficulty in controlling her emotions. When such difficulties appeared to manifest themselves during the hearing, the Tribunal offered to adjourn. On one occasion, during counsel’s closing submission, the applicant became emotional and verbally abusive and the proceedings were adjourned for a short period.

Legislation

Housing (Scotland) Act 1987 (“the 1987 Act”).

Prior to its repeal on 1 August 2016 the 1987 Act provided:

“61.— Secure tenant's right to purchase.

(1) …, a tenant of a house to which this section applies … shall, subject to this Part, have the right to purchase the house at a price fixed under section 62.

61D Limitation on right to purchase: arrears of rent, council tax etc.

(1) Subsection (2) and (3) apply where a tenant serves on a landlord an application to purchase at a time when the tenant, or any joint purchaser (within the meaning of section 61(6))—

(a) has not paid the landlord rent or any other charge lawfully due to the landlord under that or any other tenancy, or

(b) has not paid any sum lawfully due in respect of—

(i) council tax in respect of the house or any other house in the local government area in which the house is situated, or

(ii) water and sewerage charges in relation to the house or any other such house.

(2) If the landlord is a local authority landlord, it is entitled (but not required) to serve on the tenant a notice of refusal under section 68.

63.— Application to purchase and offer to sell.

(1) A tenant who seeks to exercise a right to purchase a house under section 61 shall serve on the landlord a notice (referred to in this Part as an “application to purchase”) which shall be in such form as the Secretary of State shall by order made by statutory instrument prescribe, …

(2) Where an application to purchase is served on a landlord, and the landlord does not serve a notice of refusal under sections 68 to 70 it shall, within 2 months after service of the application to purchase, serve on the tenant a notice (referred to in this Part as an “offer to sell”) …

68.— Refusal of applications.

(1) Where a landlord on which an application to purchase has been served disputes the tenant's right to purchase a house under section 61, it shall by notice (referred to in this Part as a “notice of refusal”) served within one month after service of the application to purchase—

(a) refuse the application; or

(b) offer to sell the house to the tenant under section 14, or under any other power which the landlord has to sell the house.

(2) Where a landlord on which an application to purchase has been served, after reasonable enquiry (which shall include reasonable opportunity for the tenant to amend his application), is of the opinion that information contained in the application is incorrect in a material respect it shall issue a notice of refusal within 2 months of the application to purchase.

(3) A notice of refusal shall specify the grounds on which the landlord disputes the tenant's right to purchase or, as the case may be, the accuracy of the information.

(4) Where a landlord serves a notice of refusal on a tenant under this section, the tenant may within one month thereafter apply to the Lands Tribunal for a finding that he has a right to purchase the house under section 61 on such terms as it may determine.

84.— Service of notices.

(1) A notice or other document which requires to be served on a person under any provision of this Part may be given to him—

(a) by delivering it to him;

(b) by leaving it at his proper address; or

(c) by sending it by recorded delivery post to him at that address.

(2) For the purposes of this section and of section 7 of the Interpretation Act 1978 (references to service by post) in its application to this section, a person's proper address shall be his last known address.”

Interpretation Act 1978

Section 7 provides:

“7. References to service by post.

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.”

Cases

Adam v Secretary of State for Scotland 1987 SC 306
Calladine-Smith v. Saveorder Ltd [2011] EWHC 2501 (Ch)
Darroch v. East Renfrewshire Council 2005 HousLR 26
Duffy v Normand 1995 SLT 1264
East of Scotland Water Authority v Livingstone 1999 SC 65
Freetown Ltd v. Assethold Ltd [2012] EWCA Civ 1657
Maltglade Ltd v. St Albans RDC [1972] 1 W.L.R. 1230
Macleod v Anderson 1961 JC 32
Moody v. Godstone RDC [1966] 1 W.L.R. 1085
R(Hampstead Heath Winter Swimming Club & Another) v. Corporation of London and Another [2005] EWHC 713 (Admin)
Rushmoor Borough Council v. Reynolds (1991) 23 H.L.R. 495
Salehabady v. Eyre Estate Trustees [2017] UKUT 60 (LC)
Webber (CA) (Transport) Ltd v. Railtrack plc [2003] EWCA Civ 1167

Background facts and circumstances

[6] The applicant is a tenant of the respondents. She is in her 50s. Her home is in the Gilmerton area of the city. She lives with her daughter whom we understood to be about 18 years of age. The applicant has been a tenant of the property since February 2000. She has had previous tenancies with the respondents of properties in the same area, going back to 1993. In about July 2016, the applicant became aware that the right to buy was soon to be abolished on 1 August 2016. She applied to buy her house and completed the statutory form. She handed it in to the respondents’ offices on 28 July 2016.

[7] The applicant’s property is a flat. According to the printed details on the application form, since she had been a tenant of the property for about 16½ years, she would have qualified for a 70% discount on the price from the market value.

[8] According to the respondents’ records, at the time of the application, the applicant had arrears of rent of £1,315.20 for her present property. She also had arrears of council tax amounting to £6,171.12 in respect of her present property. The records also indicate council tax arrears of £96.61 and £207.42 respectively in respect of two former properties. Some of these arrears appeared to be some 20 years old.

[9] In terms of section 61D of the 1987 Act, the respondents would be entitled to serve a notice of refusal where the applicant has arrears of rent or council tax. The respondents have a policy of refusing right to buy applications where there are such arrears. Accordingly the respondents posted notices of refusal dated 11 August 2016. There were in fact two notices in similar terms, one based upon the rent arrears and the other based upon the council tax arrears. They were sent in the same envelope. We shall continue to refer to the notices as “the notice.”

[10] The notice was sent recorded delivery by the Royal Mail’s “Signed For” service. The recorded delivery receipt in the hands of the respondents correctly specifies the applicant’s name and address. The envelope would have had a sticker on it directing the Royal Mail to return the envelope to the respondents’ address should delivery be unsuccessful. The envelope was franked – i.e. paid for via the respondents’ own franking machine, and the franked envelope was taken to the post office for posting. The posting receipt was produced to the Tribunal, having been duly stamped for posting by Royal Mail on 12 August 2016.

[11] As the name of the relevant service implies, it works by the postman asking the recipient to sign for the item. At this point the recipient will sign an electronic pad. The postman will then upload the relevant information, namely the fact of successful delivery including an electronic copy of the signature onto the Royal Mail’s system. The sender is given a reference number as part of the postal receipt. This allows the sender to track and trace the item via the Royal Mail’s website. If an attempt to trace the item is made prior to the signing of the pad by the recipient, the system will indicate that the item is being processed and will not provide confirmation of delivery. Once the item has been signed for by the recipient, the track and trace system will indicate that delivery has occurred and will show the recipient’s electronic signature to the sender.

[12] Where a “Signed For” item cannot be duly delivered, the postman should leave a note at the recipient’s address stating that the item can be picked up at the relevant postal delivery office within a specified period of time. In the event of the item not being so picked up, it is returned to the sender.

[13] The applicant states that she did not receive the notice of refusal, and since she did not receive it within the one month period of the date of the application allowed by section 68(1) of the 1987 Act, she proceeded to make an application to the Tribunal on 28 October 2016 for an appropriate order.

[14] A “track and trace” report taken from the Royal Mail’s system was lodged with the Tribunal in respect of the postal item containing the notice of refusal. The printout is dated 30 March 2017, i.e. many months after the date of posting. The printout states:

“Status: Information on your Royal Mail signed for item is not yet available

Your item is being processed but we have not received confirmation of delivery.”

Applicant’s evidence

[15] The applicant stated that she had not received the notice of refusal by the recorded delivery service. Nor had she received any card through her letterbox saying that delivery had been unsuccessful but that the item could be picked up at the local delivery office within a period of time. She said that the postal service was unreliable. As an example she stated that a Tribunal interlocutor dated 31 October 2016 was sent to her by the “Signed For” service. It was simply put through her letterbox and she was not asked to sign for it. At this point the Tribunal became concerned that there may be irregularities in the use of the Royal Mail service for its official business. Accordingly the Tribunal clerk used the “track and trace” facility for the envelope which had been sent recorded delivery to the applicant, and admittedly received by her, but for which she had apparently not been required to sign. The Royal Mail system contained the following information:-

“Latest update: Good news your item is progressing through our network and on its way.

Item (numbered) was posted at Waverley Mall EH1 1BQ on 31/10/16 and is being progressed through our network for delivery.”

[16] This information was printed and issued to parties. It can be seen that it incorrectly indicates the item was still in the postal system when it had in fact admittedly been delivered, albeit in an irregular fashion. This is a fact which we shall require to note for our future case procedures.

[17] The applicant also produced an email from the Royal Mail to the respondents’ solicitor apologising for the fact there was no information on the tracking system concerning another item. We understood this relates to a notice of refusal apparently sent to an Angela Boyce and Antony McCann who have also applied to buy their home, and where it is also maintained that the notice was not received. The applicant is a friend of Angela Boyce, and Mr McCann had printed an email for the applicant in aid of her application. There are live Tribunal proceedings between the respondents and Ms Boyce and Mr McCann.

[18] The applicant was critical of the arrears statements. She did not accept the statement of rent arrears was correct, amounting to about two and a half months of rent. At the time she had been awaiting a benefits decision. As we understood it, these benefits would be paid to credit the rent account after a time lag. That said, we did not understand her deny the existence of all the rent arrears at the relevant time and there was no detailed explanation to this effect. She did not accept that the council tax account for over £6,171.12 was correct. About £1,100 of that related to sheriff officers’ and other charges which she did not accept. She did not accept the council tax arrears for one of her previous properties of £96.61, in that she pointed out that the address of the property was incorrect since the area specified in the notice was Ratho and not her home area.

[19] The matter did not end there because the respondents had taken action against the applicant to recover the arrears, including instructing sheriff officers to recover the council tax arrears. Part of the background is that the applicant is a vulnerable tenant and certain procedures should have been followed in the handling of historical debts. The applicant complained to the Scottish Public Services Ombudsman. By letter dated 26 May 2017 the Ombudsman did not uphold a complaint that the council unreasonably failed to follow their policies and procedures before raising proceedings to recover rent arrears. However, the Ombudsman did uphold a complaint that the respondents unreasonably failed to follow their policies and procedures before instructing sheriff officers to recover the council tax arrears. Apparently there had been a failure in communication at the point when there were no longer direct deductions by the DWP. This had allowed arrears to build up. Amongst other things the Ombudsman recommended that the respondents should review their position with a view to writing-off some or all of the council tax arrears.

[20] Prior to making her application, the applicant was aware that the respondents had a rule whereby they would refuse the application if there existed the type of debts in question. She was, however, aware there was a right of appeal and was planning to appeal in the event of the respondents refusing her application to buy.

Respondents’ evidence

[21] The respondents believed that the notices would have been sent out first class post. Where recorded delivery items were not delivered, they would be returned. The respondents had a system for dealing with “return to sender” mail. It would ultimately be returned to the relevant department which had sent the item in the post. Although they could not say for certain that the envelope had definitely not come back to the council, there was no indication that it had. It was possible that the mail had got lost in the post, but this was very unlikely. The respondents produced complaints and compensation figures for the Royal Mail for 2015/16 and 2016/17. These showed that the overwhelming majority of all mail was safely and correctly delivered by postmen and women.

[22] Ms Galbraith had checked the council’s records for the arrears of rent and council tax. She was satisfied that the figures were accurate. She was aware that in the period between June and August 2016 there were about 400 applications to buy, of which there were about 130 refusals. She was not aware of any other case in which it was being alleged there was no receipt of a notice of refusal. There had initially been one other case, but when the track and trace system was used it could be seen that it had been signed for. She was not, however, aware of the McCann and Boyce case which is before the Tribunal and contains similar issues. She explained that the respondents would refuse applications to buy where there were arrears of anything over £50. She described the present debts as being quite high. In dealing with applications where there were debts, but where there was a time lag between a benefits assessment and an outcome resulting in a reduction of arrears, the council would take account of that.

[23] Mr Thomson explained the Council’s position in respect of the complaint to the Ombudsman. He had double-checked the amount of the debts and found them to be correct. He had been dealing with a complaint via an MSP. He also explained the background to the complaint to the Ombudsman, which we need not detail further here. However, Mr Thomson pointed out that the arrears were still outstanding and that the Council would not write-off the debts notwithstanding the Ombudsman’s recommendations. There was no provision in the legislation to allow for this. Arrears would only be written-off where they were irrecoverable such as where the tenant had died, or the debt was so small as to be uneconomical to collect.

Applicant’s submissions

[24] In the final analysis the applicant did not deny that she had debts to the Council, but that she disputed the amount of them. Nevertheless, since the respondents had failed to serve a notice of refusal within the one month deadline, she was entitled to receive an offer to sell from them.

Respondents’ submissions

[25] The existence of the debts had been proved by the respondents’ witnesses. The council’s records were official records and a presumption of regularity should apply. The matters raised by the Ombudsman related to how the debts were collected rather than the fact of the existence of the debts.

[26] It was submitted that given the arrears of rent and council tax, the respondents were entitled under section 61(D)(2) of the 1987 Act to serve a notice of refusal. Under reference to Darroch v East Renfrewshire Council the Tribunal had no jurisdiction to consider the reasonableness of that decision.

[27] The respondents submitted that the applicant was not a credible witness. She had made her application knowing it would be refused. She had been evasive on the matter of her debts. She sought to change the subject when asked about the receipt of the notices.

[28] The Tribunal should be careful in that the only other persons who claimed they did not receive a notice of refusal in the run-up to the abolition of the right to buy involved friends of the applicant who were helping her to advance her case. The coincidence of Mr McCann’s involvement would require a proper explanation which had not been given. Both households had arrears to the Council and both had made an application to exercise the right to buy just before its abolition. In those cases the Royal Mail did not know what had happened to the item in question.

[29] There was no evidence in support of the applicant’s position that she had not received the notices. The track and trace reports did not advance her position. The percentage of items lost in the post or undelivered is low. Delivery could be taken to have been effected in the usual course of post. For a letter posted on 12th August it would normally be delivered well before the statutory deadline of 28 August 2016.

[30] Counsel’s primary position was, however, that once the respondents had completed the process for sending the notices by way of recorded delivery service, they had complied with the statutory means of service. In terms of section 84 of the 1987 Act, a document was served and given by sending it by recorded delivery post. Thus service was deemed to have taken place and could not be rebutted by evidence. It was argued, albeit somewhat faintly, that section 7 of the Interpretation Act did not apply. The “contrary intention” appeared to be the intention specified in section 7, in that section 7 did allow for proof of actual receipt. To construe section 84 as involving proof of actual receipt would provide the intended recipient with a means whereby, under reference to ESWA v Livingstone, he or she would be able to force the council to make an offer which it did not wish to make. That would be a construction which would lead to injustice and lead to the deprivation of the respondents of property without proper recompense. Authorities indicated such an interpretation should be avoided. He also pointed out that at common law, contracts were effected from the date of posting an acceptance.

[31] Counsel drew our attention to a number of English authorities where the interplay between section 7 of the 1978 Act and other statutes dealing with service of notices has been considered. Rushmoor BC v Reynolds was an example of a case where section 7 created an irrebuttable presumption that service had been effected, once there was proof of actual posting.

[32] There was no decision in the Scottish Courts concerning its interplay with section 84 and the 1987 Act. It was submitted that the only way to make sense of section 7 was to read it so that where it was shown the letter had been properly addressed, prepaid and posted, the presumption of receipt was irrebuttable. If a recipient claimed to have not received the notice at all, he could not be heard to say, in terms of the second part of section 7, that service was late and only effected after the time when delivery would be made in the normal course of post. In the present case the landlord had done everything required of it well within the section 68 timetable.

[33] Counsel also drew attention to section 71 of the 1987 Act which provides for reference to the Tribunal where a landlord fails to “issue timeously” a notice of refusal. It was therefore questioned whether the Tribunal had jurisdiction to deal with the issue of service of notices which uses different terminology.

Discussion by Tribunal

[34] Although a significant amount of the hearing concerned the arrears of council tax and rent due by the applicant to the respondents, at the end of the day we do not think the applicant seriously disputed that there was in fact a significant amount of arrears at the material time. We do not seek to endorse the exact amount of such arrears outstanding at the point of the application to purchase. While the applicant disputed certain figures within the total, such as sheriff officers’ and other charges consisting of about £1,100 it would appear, on any view, that there was still a significant sum owing. There is no evidence to suggest that the Council will write-off these amounts in the light of the recommendation by the Ombudsman. Nor is there any basis on which it could be inferred that a write-off could be made, as it were, retrospectively to the date of the application to purchase. The only conclusion which we can draw is that, at the date of the application, there were arrears entitling the council to serve a notice of refusal in terms of section 61D of the 1987 Act.

[35] This state of affairs then raises into sharp focus the question whether the respondents succeeded in serving the notice of refusal upon the applicant. Section 68(1) requires the notice of refusal to be served within one month after service of the application to purchase. The failure of a statutory landlord to serve a notice of refusal within that period has been held to deprive the landlord of the ability to state its defence at a later stage in procedure: ESWA v Livingstone. The majority of the Inner House held that the statutory timetable was strict. Counsel conceded, correctly in our view, that this decision was binding upon us. We do not think there is any merit in counsel’s suggestion that we do not have jurisdiction to determine whether service was effected because of the different language in section 71 “… fails to issue timeously … a notice of refusal …” In section 71 the language is more general in the context of conferring jurisdiction, and should not be read as seeking to create a distinction with the detailed service procedures provided for earlier in the Act. The statute requires to be interpreted as a whole.

[36] We now consider counsel’s submission that section 84 of the 1987 Act provides an irrebuttable presumption that a document is served by “sending” it by recorded delivery post; in other words that it is not open to the addressee to prove that he or she did not receive it.

[37] It is therefore necessary to consider whether section 7 of the 1978 Act applies to section 84 notices, since its provisions apply to any legislation to which it refers “unless the contrary intention appears”. In this context we do not think it is helpful to look at the common law applicable to contracts, as counsel sought us to do, since section 7 applies to the service of documents under legislation.

[38] We understood that section 7 has given rise to litigation in England where provisions under section 23 of the Landlord and Tenant Act 1927 authorising the service of certain notices have been held not to be subject to section 7: cf Webber (CA) (Transport) Limited v Railtrack plc. Section 84(1) of the 1987 Act is not dissimilar in terms to section 23 of the 1927 Act. But subsection (2) specifically provides that section 7 applies to section 84. We also note that section 84 uses the words “served,” “given” and “sending,” and all these words appear in the applicatory preamble of section 7 in one way or another. Although counsel for the respondents sought to argue that subsection (2) could be given a narrow reading, we do not agree. The legislature has expressly provided that section 7 should apply to section 84 notices. As the same basic words appear in both sections, we think it is difficult to suggest that a contrary intention appears.

[39] We are reinforced in this view by the observations by the Court of Appeal in Webber that in the absence of authority a submission that section 23 of the 1927 Act contains nothing to exclude the applicability of section 7 would be “well arguable” (para 15). We also note the observations of the Court of Appeal in Freetown Limited v Assethold Ltd to the effect that it was not considered appropriate to extend the reasoning applicable to section 23 of the 1927 Act to a different statute with different wording (para 46).

[40] Having concluded that section 7 applies to section 84 notices, it is then necessary to consider its import. The Lord Justice General described the issue thus in Duffy v Normand:-

“… it is not necessary for us to consider here the more fundamental question whether it will ever be open to an accused on whom a document has been served by sending it to him by registered post or by the recorded delivery service to argue that it was not served on him because he did not receive it. The first part of s. 7 of the Interpretation Act 1978 provides that service by post is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document. In Moody v Godstone RDC it was held that proof of receipt was not necessary, provided a reasonable time was given between the date of the posting and the date by which compliance with the requirements of the statute was required. The effect of that decision is that, in a case where proof of service on a particular date is immaterial, evidence of non-receipt will be irrelevant, as it can be assumed in terms of the first part of s7 of the 1978 Act that service has been effected. But there are other cases, of which Maltglade Ltd v St Albans RDC is an example, where it has been held that where the legislation requires the document to be served by a certain time, the second part of s7 comes into play and it is open to the alleged recipient to say that he did not receive the document at all.”

[41] His Lordship went on to indicate that more careful citation of authority would have been required to develop the point. However, in the light of the authorities cited to us, we are persuaded that above distinction exists in Scots Law. In Macleod v Anderson, a case dealing with the similarly worded section 26 of the Interpretation Act 1889, the Lord Justice Clerk held:

“The view taken (in England) is that since no contrary intention appears in the (Road Traffic Act 1930), the sending of the notice is deemed to have been effected by properly addressing, prepaying and posting the letter. So far so good. But then by the concluding words the sending of the notice was deemed, unless the contrary was proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post. But where it was proved that the letter was not delivered in the ordinary course of post, and indeed was not delivered at all, then the contrary was proved, and there was no compliance with (the 1930 Act). With the result, however it is reached, I am prepared to agree.”

[42] Lord Patrick said:-

“When, however, the date when service was effected is of moment, as it is when service must be effected within a specified time, the second part of section 26 of the Interpretation Act comes into play. In set terms it rules out the date of posting as the date when service was effected. It provides that service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved, that is to say unless it is proved that the letter was not delivered in the ordinary course of post.

“Accordingly, in this case, the prosecutor cannot rely on the date when the notice was posted as being the date when service was effected. Nor can he rely on the date which the Interpretation Act dictates shall be deemed to be the date when service was effected, the date when the notice would be delivered in the ordinary course of post unless the contrary is proved, since it has been proved that it was not so delivered. The date when service was effected is vital, and is in question. No possible date remains by which to test whether service was effected within 14 days save the date when the notice was actually delivered. In this case it was delivered outwith the 14 days, when it was served personally on the respondent …”

[43] We think the above passages support the view that where a notice is time critical by statute, the second part of section 7 allows the alleged recipient to show that it was delivered late, in the sense that it was never delivered at all. We also note that in Adam v Secretary of State for Scotland, the Court held that the presumption contained in section 7 of the 1978 Act could be rebutted in the context of the service of enforcement notices under Town and Country Planning legislation. The Lord Ordinary held that certain letters constituting an appeal had not reached the Secretary of State by a certain date thereby rebutting any presumption arising in terms of section 7.

[44] Given the existence of Scottish authority on the matter, it is not necessary for us to embark on an extensive analysis of the English cases. However, two cases are helpful. First, Calladine-Smith v Saveorder Ltd makes it clear that for the addressee of the letter to rely upon the second part of section 7, it is not enough simply to assert that someone did not receive the letter; the Court will consider all the evidence and makes its findings by reference to the facts which are established, including issues as to the credibility of witnesses. It is clear that the burden is upon the addressee of the letter to show that the letter was not delivered or served or received by him (para 26).

[45] Second, in Moody v Godstone Rural District Council the issue was whether an enforcement notice had been served upon the defendant. It was held that the second limb of section 26 of the Interpretation Act 1889 could not be invoked. James J held:-

“For my part … I do not consider one is entitled to look … to a step some distance ahead, namely, the time at which the information is laid, or perhaps more accurately at which the offence is alleged to have been committed, and to work backwards from there and say on that basis that time is an essential element where notice is served under section 45 of the Town and Country Planning Act 1962. I think you have to look at the event of the serving of the enforcement notice and at that point of time. At that point of time there is no vital element that the enforcement notice has to be served by or at a particular date in question and it would not matter whether this notice had been served on the first day of the month in which it was dated, or had been left at the office and served a week later or 10 days later; any point of time would have done. …”

[46] In the present case it seems to us that there is a vital element in that the notices of refusal required to be served by a particular date; namely within the one month period specified in section 68(1). The statutory timetable is strict in the light of the authorities. So we think this is a case in which it is open to an applicant to show in terms of the second limb of section 7 that service of the notice was not effected at the time at which it would have been delivered in the ordinary course of post, since it was not delivered at all. However, given the view we have reached on the facts of this case, the above analysis is not critical to our decision.

[47] Assuming we are correct in the above analysis, we agree with the respondents that the onus of proof is upon the applicant to show that the notice was not delivered within the time at which it would have been delivered in the ordinary course of post, in that it was not delivered at all. We are satisfied that the item was properly addressed, paid for and posted, thus giving rise to a presumption of service. We are not prepared to accept the applicant’s assertion that she did not receive the notice without that position being supported by other evidence. We did not consider that she was a straightforward witness in that she tended to engage in fencing with counsel, for example, by asking questions instead of answering them. We did not hear from the other member of the applicant’s household to confirm how household post was dealt with or what might have happened. It is of course statistically possible that the item got lost in the Royal Mail system, and this possibility was conceded by Mr Jackson. But we do not think that goes far enough to satisfy us that this was what occurred.

[48] Critically we did not hear from any representative of the Royal Mail to give the most likely explanation as to what had gone wrong with the service in this case. We were unable to rely upon the track and trace information as necessarily establishing non-delivery. It can be concluded that the Tribunal’s own interlocutor was sent recorded delivery, and was delivered through the applicant’s letter box, but the tracing system still did not show that the item had been delivered, no doubt because it had not been signed for. In other words there exists the evidential possibility of a recorded delivery item simply being put through the applicant’s letterbox by the postman without its being signed for. If this could happen in October 2016 there is no particular reason to suppose it could not also have happened two or three months earlier. This implies two further possibilities, either that for reasons unknown the applicant did not physically receive the item after it had been put through her letterbox, or that she has attempted to mislead the Tribunal by not telling the truth. At the end of the day we cannot reach a conclusion as to what happened on balance of probability. Nor have we been able to reach a view on whether the applicant’s position might be strengthened or indeed weakened by the facts in the Boyce and McCann case which was mentioned in evidence. As those parties did not give evidence, and the facts were not really explored, we do not think it would be appropriate to seek to draw any particular inference from that case.

[49] In these circumstances we find that the applicant has not discharged the onus of proof by satisfying us, in terms of the second limb of section 7, that she did not receive the notice of refusal. Accordingly the presumption that service was effected is maintained.

Decision

[50] In these circumstances we shall refuse the application. Although the respondents moved for expenses and sought sanction for counsel, we shall reserve these matters which can be renewed in writing once our decision has been considered.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 September 2017

Neil M Tainsh – Clerk to the Tribunal