Westminster City Council v Mendoza

Service of a statutory closure notice on affected occupiers protects their opportunity to be heard. It is not a technical requirement that automatically nullifies proceedings. The duty to serve other occupiers arises only where the council knows, or ought reasonably to know, of their occupation and that access could be impeded by a closure order.

Service need not be simultaneous with service on the principal operator or precede the complaint, provided affected occupiers have sufficient opportunity to attend and make representations. A notice fixed to the sole access door may constitute effective service. The construction balances occupier protection with effective enforcement.

Westminster City Council sought a closure order concerning an unlicensed sex establishment on the ground floor of premises in Walkers Court. Basement occupiers, whose access was through the same entrance, were unknown to the council when the closure notice was served on the operator. After the first hearing was adjourned, the basement occupiers were served and appeared at the resumed hearing.

The stipendiary magistrate held that failure to serve the basement occupiers before proceedings were commenced was fatal and that only a discontinuance order could be made. The Divisional Court allowed the council’s appeal by case stated and remitted the matter. The second appeal concerned the construction of the service provisions in the City of Westminster Act 1996, including the timing and consequences of service on other occupiers.

The Court of Appeal unanimously dismissed the appeal, awarded costs, and remitted the case to the magistrate for the hearing to be continued. Lord Woolf CJ gave the leading reasons. Lord Justice May agreed, and Lord Justice Jonathan Parker also agreed.

1. Statutory structure. Under the City of Westminster Act 1996, the period in section 4(1) runs from service of the closure notice on the principal person having control of, or an interest in, the business under section 3(2)(a)(i). It does not run from service on secondary occupiers under section 3(2)(a)(ii) or persons served under section 3(2)(b). Any other construction would make the statutory time limits uncertain and practically unworkable.
2. Secondary occupiers. Section 3(2)(a)(ii) applies only to occupiers whom the council knows, or ought reasonably to know, occupy another part of the building and whose access could be impeded by a closure order. A hypothetical or wholly unknown occupier cannot be served, although the council cannot avoid its obligation by ignoring an obvious occupation. The reference in section 3(2)(a)(ii) to section 4(5)(a) was plainly a mistake for section 4(6)(a).
3. Purpose and timing of service. Service on secondary occupiers exists to protect their interests, including their ability to attend, be represented, seek conditions under section 4(8), and prevent an order contrary to section 4(9). No particular time is prescribed. They should be served promptly and given sufficient time to make representations. If necessary, the magistrate may adjourn the hearing.
4. Effective service and procedural compliance. The notice fixed to the entrance door was effective service under section 8 because the basement occupiers could reach their premises only through that door and the notice would inevitably come to their attention. In any event, service during the adjournment, followed by their attendance and representation, achieved the statutory purpose. Whether a provision is called mandatory or directory is unhelpful; the consequence of procedural non-compliance depends on statutory intention. Section 4(5)(a) requires proper service, but the requirement is not to be applied technically so as to create an automatic nullity where the affected occupiers had the required opportunity to be heard.
5. May LJ’s observation. It remained arguable, but was unnecessary to decide, whether closure under section 4(6)(a) meant closure only to the public. The wording of section 4(8) might affect that question.

• Court of Appeal (Civil Division) Dismissed the second appeal, with costs, and remitted the case to the magistrate for the hearing to be continued.
• High Court, Queen’s Bench Division, Divisional Court Allowed Westminster City Council’s appeal by case stated and remitted the matter to the Metropolitan Stipendiary Magistrate.
• Metropolitan Stipendiary Magistrate Held that failure to serve the basement occupiers was fatal to the proceedings and that, even if service had been proper, section 4(9) permitted only an order for discontinuance.