Volume 2
Annex E Service Of Documents
E.1. The 2006 Act gives local authorities new powers to deal with sub-standard housing. It will be important for local authorities to ensure that owners know what these powers are, and are aware when the local authority is using them. And there are some elements where the Act requires local authorities to serve notice of their decisions in a certain way.
E.2. This annex looks at these situations, and the requirements which the Act sets out. It is non-statutory guidance. Authorities will want to consider how to manage these processes, and in all cases they should confirm with their own legal advisors that they are fulfilling the requirements of the Act. But they may find it useful to consider the overview which this annex provides.
E.3. This annex looks only at the procedural requirements of serving notices. Chapters 3 and 4 of this guidance provide more information on what each notice should contain.
When, and to who, a local authority has to serve a document
E.4. There are various situations where the Act requires local authorities to serve documents in a certain way.
E.5. This annex looks in turn at the requirements in terms of:
- Part 1 Chapter 1: Housing Renewal Areas;
- Part 1 Chapter 5: Repairs, Improvement and Demolition; and
- Recovery of Expenses.
E.6. There are also requirements for local authorities in relation to their powers under Part 1 Chapter 4 Repairing Standard. The Scottish Government has produced separate guidance on these powers. This is available via the website, at www.scotland.gov.uk.
Housing Renewal Areas
E.7. The following table (Table 1) sets out the requirements for Housing Renewal Areas (Part 1 Chapter 1 of the Act):
Reference | Situation | Who should receive the notice |
|---|
Sch 1 1(1) | Local authority proposes to designate an HRA | - to the owner and occupier of each house in an area;
- to the planning authority (if that is not the local authority), where the house is
- listed,
- subject to a building preservation notice, or
- covered by restrictions on demolition in conservation areas;
- in at least 2 newspapers, at least one local if possible; and
- in such other manner as the local authority thinks fit. It is up to the authority to decide, but examples might include a notice in local libraries, community centres or health centres.
|
Sch 1 1(3) | Local authority's decision whether or not to submit a draft HRA designation order to Scottish Ministers, following the period of public consultation | - to the owner and occupier of each house in an area;
- to the planning authority (if that is not the local authority), where the house is:
- listed,
- subject to a building preservation notice, or
- covered by restrictions on demolition in conservation areas;
- in at least 2 newspapers, at least one local if possible; and
- in such other manner as the local authority thinks fit.
|
Sch 1 3(1) | As soon as practicable after local authority makes HRA designation order | - to the owner and occupier of each house in the HRA;
- in at least 2 newspapers (one of which to be local if possible); and
- in such other manner as LA thinks fit.
|
s4(5) | If the local authority varies the HRA designation order | - any person whom it considers the variation is likely to affect; and
such other persons as it thinks fit. |
s5(4) | Local authority decides to revoke an HRA designation order | - to any person whom it considers likely to be affected by the revocation.
|
E.8. Chapters 3 and 4 of this guidance set out what information these notices should contain and when these situations will arise.
Work and demolition notices
E.9. The following table (Table 2) sets out the requirements for work and demolition notices (Part 1 Chapter 5 of the Act):
Reference | Documents | Who should receive the notice |
|---|
s62, and s30 (2); s31(3); s31(3); s32(2) | Work notice - Notice itself;
- Suspension of work notice;
- Lifting of suspension of work notice;
- Revocation of work notice
| - the owner and occupier of the house concerned;
- any creditor holding a standard security over that house;
- any person who receives rent in respect of that house, whether directly or indirectly; and
- any other person whom the local authority considers to have an interest in that house.
|
s33(1), s62 | Demolition notice | |
s34(3), s62 | Extension of period for completion of work notice or demolition notice | |
s35(3), s62 | Inclusion of additional works when authority is to carry out a work notice or demolition notice | |
s37 (2) | Notification for evacuation of premises when enforcing a work or demolition notice | |
s62 (3)
E.10. The local authority must serve notice on the owner and occupier. But it may be that the authority is unaware of the existence of any of the other people which this table sets out.
E.11. This will not invalidate the notice, so long as:
- the local authority has exercised its powers to identify owners under this Act; and
- after this, the authority is unaware of the existence of any person on whom it should have served the notice.
E.12. The powers to identify owners are set out in s186 of the Act.
Recovery of expenses
s59 (5)
E.13. There is no statutory requirement to serve notice if the local authority wishes to recover expenses (see also Annex G), unless it wants to declare that the expenses will be recoverable in instalments. In this case it must serve notice on the owner of the property.
E.14. But it would be good practice for local authorities to serve notice in all cases where they intend to recover expenses.
E.15. It would also be good practice for the local authority to notify owners if it issues a repayment charge against their living accommodation.
How does a local authority serve notice?
s187 (1), (2)
E.16. Local authorities must serve notice in writing. This applies to any of the notices, orders or notifications which the tables above set out.
s18 7 (6)
E.17. This can include electronic means (such as e-mail), so long as it is legible and can be used for future reference.
When is a notice served?
s62 (2)
E.18. The document is served on the day on which it is served on the owner of the house.
s187(3), (4), (5)
E.19. Any document is served on a person when it is either delivered or sent to, as the case may be:
(a) a person's place of business or usual or last known place of abode;
(b) the secretary, chief clerk or chief executive of an incorporated company or body at its registered or principal office; or
(c) the principal office of a public office-holder.
s187 (3)
E.20. If the notice is being issued by post it should be sent in a prepaid registered letter or by recorded delivery.
s187 (3)
E.21. The Act also deems a notice as being served if it was sent to the person in some other manner (including e-mail) which the sender reasonably considers likely to cause it to be delivered to the person on the same or next day.
s187 (7), (8)
E.22. If the notice is sent by some means other than by delivery or post, for example e-mail, the Act treats it as having been delivered on the next working day (that is to say excluding Saturday, Sunday or a bank holiday in Scotland) after the day on which it was sent. But it will not be treated in this way if the contrary is proved.
E.23. It would be good practice for the local authority to keep a record of such electronic correspondence.
s187 (9), (10)
E.24. If the local authority is not able to find out the name or address of the owner or occupier, it can address a copy of the notice to "The Owner" or "The Occupier" and display it on or near the premises.
When does a notice take effect?
s63 (1)
E.25. A document takes effect from the date on which it is served.
s63 (2)
E.26. The only exceptions to this (in terms of Chapters 1 and 5 of the Act) are where the recipients of notices appeal against the decision set out in the notice to serve a work or demolition notice;
E.27. Annex F contains more information on rights of appeal, and the effect of appealing a notice.