McGrath v London Borough of Camden

A BID levy becomes payable only when the statutory conditions for liability and service of a demand notice are satisfied. The information required by paragraph 3(2) of Schedule 4 to the Business Improvement Districts (England) Regulations 2004 must be supplied when the notice is served, but need not be contained in the notice. Failure to supply that information does not invalidate the demand notice or make the levy non-payable. Paragraph 4(1) concerns invalidity arising from non-compliance with paragraph 3(1)(a), where the notice omits the address or description of the hereditament, provided its other conditions are met. The statutory reference to “mistake” is not confined to mistakes of fact.

Mr James McGrath appealed by way of Case Stated from a liability order made by the Highbury Magistrates’ Court for unpaid BID levy of £642, together with costs. The levy concerned a public house within the Hampstead Village Business Improvement District. The London Borough of Camden accepted that, when serving the demand notice, it had failed to supply the information required by paragraph 3(2) of Schedule 4 to the Business Improvement Districts (England) Regulations 2004.

The District Judge held that the failure was a mistake within paragraph 4(1), so that the demand was payable as if the notice were valid. The central issues were whether paragraph 4(1) applied to paragraph 3(2), whether non-compliance with paragraph 3(2) invalidated the demand notice, and whether paragraph 4(2) affected liability.

1. Appeal dismissed. The liability order was properly made.
2. A BID levy is recoverable only where the person is liable under section 46 of the Local Government Act 2003, a demand notice has been properly served, the levy has become payable under Schedule 4 to the Business Improvement Districts (England) Regulations 2004, and it remains unpaid. Service, liability, timing and estimation requirements operate independently of paragraphs 3 and 4 of Schedule 4.
3. Paragraph 3(1) specifies matters which must be contained in a demand notice. Paragraph 3(2) instead requires specified general BID information to be supplied when the notice is served. That information need not be included in the notice.
4. Paragraph 4(1) applies only to invalidity of a demand notice caused by non-compliance with paragraph 3. Its condition in paragraph 4(1)(c) assumes compliance with paragraph 3(1)(b) and (c). Accordingly, its operative scope is non-compliance with paragraph 3(1)(a), concerning the address or description of the hereditament.
5. Non-compliance with paragraph 3(2) does not fall within paragraph 4(1), does not invalidate the demand notice, and does not make the levy non-payable. The purpose of paragraph 3(2) is wider accountability concerning the BID’s operation and expenditure, rather than enabling an individual ratepayer to understand or challenge the calculation of the levy. A possible remedy may lie by judicial review.
6. Because the demand notice complied with paragraph 3(1), paragraph 4(1) did not arise. Questions concerning whether the Council’s errors amounted to a “mistake”, and whether paragraph 4(2) was complied with, therefore did not require determination. Nevertheless, the District Judge’s view that “mistake” could include an error of law was not legally objectionable.

Lord Justice Davis agreed. He emphasised the distinction between information required to be contained in a demand notice and information required to be supplied with it. The notice was valid because the amounts demanded complied with paragraph 3(1).

• High Court (Administrative Court) — appeal by Case Stated dismissed.
• Highbury Magistrates’ Court — District Judge Julia Newton made a liability order on 29 April 2019 for £642 BID levy and costs.