The billing authority applied to the magistrates’ court for a liability order against the defendant in respect of an unpaid business improvement district (“BID”) levy. The defendant contended that the sum was not payable because the demand notice served was invalid by reason of the authority’s failure to provide the information specified in paragraph 3(2) of Schedule 4 to the Business Improvement Districts (England) Regulations 2004, made under the Local Government Act 2003, and that the demand notice was not to be treated as valid by virtue of paragraph 4(1), since that provision only applied where the failure to comply with paragraph 3 was due to a mistake as to fact. The district judge determined that, notwithstanding the authority’s failure to comply with paragraph 3(2), there had been a relevant “mistake”, which was not limited to a mistake as to fact, within paragraph 4(1)(b), and that the demand notice was valid. The district judge therefore made a liability order against the defendant with costs.
On the defendant’s appeal by case stated—
Held, appeal dismissed. (1) Paragraph 3(1) of Schedule 4 to the Business Improvement Districts (England) Regulations 2004 set out matters which had to be contained in a demand notice, but paragraph 3(2) only dealt with information of a general nature relating to the overall operation of the BID levy which had to be provided when a demand notice was served. It did not require that information to be contained within the notice. Paragraph 4(1) addressed failures to comply with certain requirements in Schedule 4 but only dealt with the invalidity of a demand notice and, even then, by paragraph 4(1)(a), only in relation to its non-compliance with paragraph 3. Within that provision only paragraph 3(1) concerned requirements with which a demand notice had to comply. Provided that paragraphs 4(1)(b) and (c) were satisfied, the requirement to pay the amounts specified in the demand notice was treated as if the notice were valid. Paragraph 4(2) only applied where all three limbs (a), (b) and (c) in paragraph 4(1) were satisfied. The language made it plain that paragraph 4(1) did not apply to a failure to comply with paragraph 3(2) because the latter had nothing to do with the contents of a demand notice. Furthermore, paragraph 4(1) did not apply to any non-compliance with a requirement which fell outside paragraph 3(1). It was impossible to read the clear language of paragraph 4(1)(c) as referring to anything other than paragraph 3(1)(b) and (c). Here the demand notice complied with all of the requirements of paragraph 3(1) and so paragraph 4(1) did not fall to be applied. It followed that the judge should not have been asked to determine whether the errors which occurred in relation to non-compliance with paragraph 3(2) amounted to a “mistake” within paragraph 4(1)(b) (paras 50, 54–57, 59, 64, 65).
(2) Whether the legislature intended non-compliance with paragraph 3(2) to render a demand notice invalid depended upon the proper construction of the language used. Although paragraph 4 addressed the invalidity of a demand notice arising from non-compliance with “paragraph 3”, the legislature had made it plain that where a demand notice was invalid that invalidity was cured where the non-compliance related to paragraph 3(1)(a) alone and not to paragraph 3(1)(b) or (c). The implication was that the legislature did not intend non-compliance with paragraph 3(2) to render a demand notice invalid. Nor was there anything in paragraph 3(2) itself, or in any other part of the legislation, which expressly or impliedly indicated that the content or purposes of paragraph 3(2) were relevant to the validity of a demand notice or to the issue of whether BID levy was “payable” by the person served with a demand notice. Accordingly, a complaint regarding non-compliance with paragraph 3(2) would be incapable of rendering a demand notice invalid or of causing BID levy otherwise due from that person to become non-payable (paras 61, 62, 64, 65).
Per Holgate J. The legislation does not qualify the word “mistake” in paragraph 4(1)(b) of Schedule 4 to the 2004 Regulations so as to restrict it to errors of fact, or to exclude an error of law in the application of the provisions in Schedule 4 for the supply of information under paragraph 3(2) (para 63).
W Robert Griffiths QC and Nicola Strachan (instructed by Clarks Legal) for the defendant.
Asa Jack Tolson (instructed by Head of Legal Services, Camden London Borough Council) for the billing authority.