England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(KENNEDY LJ & BUTTERFIELD J)

		Royal Courts of Justice The Strand London Wednesday 14 February 2001

Wednesday 14 February 2001

1. THE LORD CHIEF JUSTICE: This is an appeal by Stephen Mendoza against a decision of the Divisional Court dated 31 March 2000. The Divisional Court allowed the appeal by case stated of the Westminster City Council and remitted the matter to the Metropolitan Stipendiary Magistrate for further consideration in relation to his decision which was the subject of the appeal to the Divisional Court. Permission for this appeal, which is a second appeal, was given by Lord Justice Simon Brown on 7 June 2000. In doing so, he considered the points were properly arguable and of some importance.
2. The appeal to this court raises issues as to the requirement as to service contained in the City of Westminster Act 1996. That Act enables the city to obtain closure orders against sex establishments.

The Background

3. The facts leading to the decision of the magistrate are set out clearly in the case stated. On 6 January 1999, Stephen Mendoza appeared to answer a summons issued on behalf of the City Council. The hearing did not take place on that date but was adjourned; the reason was apparently lack of time. However, that hearing resulted in the City Council becoming aware that the basement of the premises concerned, namely the ground floor of 6 Walkers Court, London W1, were occupied by others. The City Council therefore served promptly the two occupiers of the basement. When the matter came before the magistrate again, initially on 29 March 1999, it was argued that there had been no satisfactory service which complied with the requirements of the Act on the occupiers of the basement, and in those circumstances the proceedings could not be pursued, notwithstanding that the premises on the ground floor were still being used as a sex establishment.
4. The case stated sets out the findings of the magistrate in these terms:

"....

3. ....

a) A Closure Notice in a form which appeared to comply with the provisions of Section 3 City of Westminster Act 1996 was served upon [Mr Mendoza] by an officer of the appellant on 10 June 1998.

b) The Notice alleged that premises situated at the Ground Floor, 6 Walkers Court, Soho, London W1 were being used as a sex establishment .... otherwise than under the authority of a licence granted under Schedule 3 to Local Government (Miscellaneous Provisions) Act 1982 as amended.

c) The Closure Notice specified that in order to remedy the .... breach of the .... Schedule 3, 'the premises' must be closed to the public immediately or the use of 'the premises' as a sex establishment must be discontinued immediately.

d) At the time of the service of the notice .... the Ground Floor, .... was occupied by [Mr Mendoza].

e) At 10 June and until the hearing of the matter, there were occupiers of the basement of the premises 6 Walkers Court, namely one Janjeva and one Scott, both of whom used parts of the basement respectively for the storage of fruit.

f) Throughout the period in question, access to the parts of the basement referred to could only be gained via the ground floor premises and use of the same front door as gave access to the ground floor premises.

g) The use of the parts of the basement premises for the purpose so described, in continuation of previous occupation, followed advice from the solicitor to [Mr Mendoza] who had perceived that the presence of the occupiers of the basement of the premises would place difficulties in the way of the [City Council] enforcing the law.

h) Although the occupation at 10 June 1998 may have been induced by the motive described, the advice underlying it was not improper and the occupation was genuine de facto occupation.

i) Despite numerous visits by police officers and officers of the [City Council] to the premises, 6 Walkers Court, in the weeks and months prior to service of the Closure Notice, none of those persons had become aware of the presence of occupiers of the basement.

j) At the moment the Closure Notice came to be drafted, the officers of the [City Council] responsible for that drafting and all other officers of the [County Council] were genuinely unaware of the presence of occupiers in the basement of 6 Walkers Court.

k) No steps were taken to effect service of the Closure Notice or of the summons issued as a result of the failure of [Mr Mendoza] to comply therewith upon the occupiers of the basement.

i) At the time of service of the Closure Notice, the officer effecting service in addition to serving [Mr Mendoza] personally, left an additional notice attached by selotape to the entrance door to the ground floor premises, such notice being addressed to 'Owner/Occupier'.

m) Because of the nature of the whole building, 6 Walkers Court, access of the occupiers to their respective parts of the basement within the building would be impeded by the closure of the ground floor premises and/or the making of a Closure Order."

5. The stipendiary magistrate records that he made the following findings of law as a result of the findings of fact to which I have referred:

"a) The failure of the [City Council] to effect service of the Closure Notice upon persons who were in fact in occupation of parts of the premises of the building amounted to prima facie non-compliance with Section 4(5)(a) of City of Westminster Act 1996.

b) That comparison of Section 3 and Section 4(9) of City of Westminster Act did not entitle the [City Council] to a conclusion in its favour that the occupiers were not occupiers of a separate part of the building but co-occupiers of the subject premises.

....

d) Accordingly, notice of the intended action had to be given to the occupiers under Section 3(2)(a)(ii).

e) The additional notice affixed to the premises and addressed to the owner/occupier referred to in factual finding 3(l) above did not meet that requirement.

....

h) The requirement of service contained in Section 3(2)(a)(ii) of City of Westminster Act 1996 having not been met, the court could not be satisfied pursuant to Section 4(5)(a) of the Act that the Closure Notice had been properly served.

i) Such failure to comply with an express provision was fatal to the proceedings and the failure to comply was not cured by subsequent service upon the occupiers nor by their appearance as interveners in the proceedings and their representation by counsel in those proceedings.

j) Although the consequence of the failure to serve a secondary party being to cause the proceedings against the principal party to fail was prima facie a strange one, that was the consequence that arose from the drafting of this legislation.

k) Even if the notice and the proceedings had been properly served upon the occupiers of the basement, given the actual occupation of the basement, the only order which Section 4(9) of City of Westminster Act would have permitted the court to make would have been one for discontinuance under Section 4(6)(b) of the Act."

6. The judgment of the Divisional Court in this matter deals not only with the appeal in the present case, but an appeal in another case. For that reason it is not helpful to refer to the judgment, but I do not intend any disrespect in that regard. It is also clear that the argument which took place before the Divisional Court was not on precisely the same lines as the argument which has taken place before this court as a consequence of matters raised by the court.

The Legislation

7. As always in a matter of this nature, the language of the legislation is critically important. If the legislation makes it clear that the magistrate was required to come to a decision which he himself regarded as somewhat bizarre, so be it, even if that is not a satisfactory position. As will become apparent when I turn to the legislation, I am quite satisfied that for a number of reasons the decision of the learned stipendiary magistrate was wholly wrong, having regard to the facts that he found. It is a matter of regret that, as a consequence of the arguments which were raised -- and I make no criticism of the lawyers involved in advancing the arguments which they did -- the City Council has been frustrated in its attempt to apply the relevant legislation.
8. The Act commences by setting out in section 2 various interpretation provisions. The only relevant ones are, first of all, the interpretation of "persons having an interest in the premises". That phrase is said to mean "the owner, leaseholder, licensee or occupier of the premises". The other is "premises" where it is said:

"'premises' includes any premises, part of premises, vehicle, vessel or stall;"

9. Sections 3 and 4 are the two most important sections for present purposes. Section 3 provides:

"(1) Where the council are satisfied that premises in the city are being used as a sex establishment without a licence in breach of Schedule 3 they may serve a closure notice in respect of those premises."

10. As Mr Salter submitted on behalf of Mr Mendoza, the council have a discretion as to whether they wish to serve a closure notice if they are so satisfied. They are not required so to do; but if they do so, that starts the whole of the statutory machinery.
11. Subsection (2) deals with service of a closure notice. It provides:

"Where a closure notice is served --

(a) it shall be served on --

(i)at least one person having control of or an interest in the business carried on in the premises; and

(ii)the occupier of any other part of the building in which the premises are situated and to which, in the opinion of the council, access would be impeded if an order under section 4[6](a) below were made in respect of the premises; and

(b) it may be served on any other person having an interest in the premises."

12. The first point to be made with regard to section 3(2) is that it refers only to a "closure notice" having to be served. Nothing else has to be served. The second point to be made with regard to section 3(2) is that it does not state anything about when either of the categories of persons referred to therein have to be served.
13. Subsection (3) deals with the contents of a closure notice. It states:

"A closure notice shall --

(a) specify the matter alleged to constitute a breach of Schedule 3;

(b)specify any steps which may be taken in order to remedy the breach described in paragraph (a) above including --

(i)the immediate closure of the premises to the public for the time being; or

(ii)the immediate discontinuance of the use of the premises as a sex establishment; and

(c) state the effect of section 4(1) below."

14. I will come to section 4(1) in a moment.
15. Subsection (4) of section 3 enables the council to withdraw a closure notice. Subsection (5) deals with the person having an interest in the business for the purposes of section 3(2)(a)(i). It provides:

"For the purposes of subsection (2) above a person having an interest in the business carried on in the premises includes a person who --

(a) owns the business; or

(b) manages the business; or

(c) employs any person to manage the business; or

(d) is involved in the conduct of the business."

16. Clearly for the purposes of section 3(2)(a)(i) a person having an interest in the business has a wide meaning.
17. Section 4 deals with the next stage of the closure procedure. It provides:

"(1) Subject to subsection (2) below, the council may, not less than 14 days and no later than 6 months after the service of a closure notice make a complaint to a justice of the peace acting for the petty sessions area in which the premises are situated for a closure order in respect of that closure notice."

18. That does not expressly state whether it is directed at the closure notice which is required to be served under section 3(2)(a)(i) on the principal person or the secondary persons referred to in section 3(2)(a)(ii) or (b). However, to make sense of section 4(1), I am quite satisfied that the clear implication is that it refers only to the service which is required under section 3(2)(a)(i); the service on the principal person referred to in that subsection. I say that for this reason. The period during which the council is entitled to make a complaint is strictly defined. It is defined in terms which identify the beginning of the period and the end of the period. It would make the subsection very difficult to operate if it was referring to service of either the persons referred to in section 3(2)(a)(ii) or those referred to in 3(2)(b). They are not required to be served at the same time and therefore there could be differing periods involved. Mr Salter seeks to reconcile that provision with his contention that it also refers to persons other than the principal. He submits that that provision should be construed in a way which means that the earliest date on which there could be a complaint is fourteen days from the time of the final service, so that a reduction of the six-month period could result. The fact that there is only a discretionary requirement for service on any other person having an interest in the premises under section 3(2)(b) would create immense difficulty in practice if the interpretation Mr Salter seeks were to be adopted. The position would, in my judgment, become virtually unworkable if the premises were only occupied by a person referred to in section 3(2)(a)(ii) or if a person only acquired an interest in the premises after there had been service on the principal who has the control or an interest in the sex establishment. The fact that section 4(1) only refers to the principal is confirmed by the later provisions of section 4 to which I will now refer.
19. Section 4(2) provides:

"The council may not make a complaint under subsection (1) above if --

(a)(i)the premises have been closed to the public; or

(ii)they are satisfied that the use of the premises as a sex establishment has been discontinued; and

(b) they are satisfied there is no reasonable likelihood that there will be a further breach of Schedule 3 in respect of those premises.

(3) Where a complaint has been made under subsection (1) above the justice of the peace may issue a summons directed to all persons upon whom the closure notice was served under section 3(2)(a)(i) above to answer to the complaint."

20. I emphasise that subsection (3) makes no reference to subsection (3)(2)(a)(ii) or section 3(2)(b). This confirms the view which I have previously expressed as to the proper interpretation of section 4(1).
21. Subsection (4) provides:

"Where a summons issued under subsection (3) above is served a notice stating the date, time and place at which the complaint will be heard shall be served on all persons upon whom the closure notice was served under section 3(2)(a)(ii) and (b) above."

22. There is therefore a requirement of the notice to be served, but again no time is specified as to when that service is to take place.
23. Subsection (5) provides:

"If, on hearing the complaint, the court is satisfied that --

(a) the closure notice was properly served;

(b) at the time the closure notice was served the premises were being used as a sex establishment in beach of Schedule 3; and

(c) (i)the breach of Schedule 3 has not ben remedied; or

(ii)the breach of Schedule 3 has been remedied but considers that there is a reasonable likelihood that there will be a further breach of Schedule 3; it may make an order under this section."

24. Subsection (6) provides:

"The court may make such order under this section as it thinks fit and in particular may order that --

(a) the premises in respect of which the closure notice was served shall be closed immediately and remain closed until the council issues a certificate under subsection (11) below;

(b) the use of those premises as a sex establishment be discontinued immediately;

(c) the defendant pay into court such sum as the court determines and that the sum will not be released by the court to the defendant until the other requirements of the closure order are met:

Provided that no order may be made under paragraph (c) above unless the defendant has been convicted of an offence under Schedule 3 of this Act."

25. Subsection (8) provides:

"Such conditions as the court thinks fit relating to the admission of specified individuals onto the premises may be applied by the court to an order made under subsection (6)(a) above.

(9) An order under subsection (6)(a) above shall not be made if closure of the premises would result in any person other than the occupier of the premises being impeded in his access to any other part of the building in which the premises are situated and of which he is the occupier."

26. Immediately the link between subsection (9) and the requirement to serve under section 3(2)(a)(ii) can be seen. It is clear (if it would not otherwise be clear) as a result of subsection (9) that one of the purposes of requiring service of the notice on the persons referred to in section 3(2)(a)(ii) is so as to enable them to ensure that an order is not made which would contravene section 4(9).
27. Section 5 provides for a right of appeal. I move to section 8 which deals with service of notices. It provides:

"(1) Any notice, summons or other document required or authorised to be served or given under this Act may be served or given either --

....

(b) by leaving it at the usual or last known place of abode or business of that period or, in a case where an address for service has been given by that person, at that address; ...."

28. It is to be noted that section 8 is merely a provision which extends the requirements as to service by specifying particular ways in which service may take place.

Conclusions

29. Having referred to the statutory provisions, I return to facts of this case. The starting point in considering the correctness of the decision of the magistrate is to turn to the consequence of the copy closure notice being selotaped onto the door of the premises which gave access to the ground floor and to the basement of the building in which the sex establishment operated.
30. On the findings of the magistrate, the only access to the basement was through the door on which that notice was posted. The contents of the notice complied with section 3(3). Having regard to the requirements of section 8 as to service, there is no reason to conclude that the closure notice had not been served on those who occupied the basement. The notice would inevitably come to their attention. They could not walk through the door without it so doing. Mr Salter submits that the notice would not necessarily mean anything to the occupier of the basement; it would be addressed to Mr Mendoza as the person having control of, or an interest in, the business carried on in the premises. He points out the fact that one of the occupiers of the basement spoke limited English and may have had difficulty in reading the notice. The position can be tested by asking: what was the consequence on the facts of this case? The consequence was that the persons who occupied the basement attended on the date of the hearing. Therefore the purpose of the Act had been achieved. They were present; they could have taken part in the proceedings. I find it indisputable in those circumstances that there had not been service as required by the Act.
31. However, as the magistrate found that there had not been adequate service, it is necessary to consider the consequence of the service after the first hearing when the proceedings were adjourned. Mr Salter in his argument said that the structure of the Act required the service on the occupiers of the basement to take place before the complaint was issued. That argument, if correct, could be to the disadvantage of those who may subsequently occupy the premises and whose interests might need to be protected. It seems to me that a proper interpretation of section 4(1) only requires the service of the principal to have taken place before the complaint is issued. The reason for the two-stage process so far as the principal is concerned, pursuant to sections 3 and 4 of the Act is to give the operator of the sex establishment an opportunity to discontinue his activities of which the council makes complaint. The reason for serving others (apart from the person operating the sex establishment) is to enable them to protect their interests. As long as they are in a position to attend the hearing, the policy and the objectives of the Act will be achieved.
32. When coming to his conclusion that what had happened here was defective, the magistrate was much influenced by the wording of section 4(5)(a) which requires the court to be satisfied that the closure notice was properly served. I would accept that that requirement relates to the position both with regard to the person referred to in section 3(2)(a)(i) and (ii), and section 3(2)(b). But as long as the court is satisfied that the subordinate person concerned has had opportunity to appear before the magistrate on the relevant date, the purpose of section 3(5)(a) has been achieved. Under the Act it is wrong to look at a requirement of service on others than the principal in the technical manner in which the magistrate did. If the magistrate was inclined to adopt a technical approach, then I would hope that if the guidance which I sought to give in R v Immigration Appeal Tribunal, ex parte Jeyeanthan and Ravichandran v Secretary of State for the Home Department [1999] 3 All ER 231 had been available, he would have resisted the inclination to do so. However, that case was decided late in 1999. Nor could he be referred to the decision of the House of Lords in the recent case of Attorney General's Reference No 3 of 1999, which was given on 14 December 2000, when both Lord Steyn and Lord Cooke referred, with approval, to what I had said in Jeyeanthan about the approach to contentions that a requirement of a procedural nature was mandatory. In making the comments which I did, I followed the approach of Lord Hailsham of St Marylebone LC in London and Clydeside Estates Ltd v Aberdeen DC [1980] 1 WLR 182. I sought to emphasise that the fact that a procedural requirement states that something shall be done does not mean that if it is not, that the result is a nullity. It is very important to look at the intention of the legislation in assessing the requirement. It may be an obligation which is clearly set out, but the consequences of not complying with the obligation depend very much upon what is the statutory intent of the legislation as a whole. In this case, as I have sought to make clear, the purpose of the legislation so far as the occupiers of the basement were concerned is clear. It was to give them an opportunity to be heard. That opportunity could be achieved by any service on those persons which enabled them to take part in those proceedings if they wished so to do. Indeed, if there was a very late service, the magistrate could take the course of adjourning the proceedings to give the persons concerned an opportunity to attend. Accordingly, even if the notice on the door is disregarded, there was perfectly satisfactory service here as a result of the proceedings being adjourned by the magistrate.
33. The legislation sought to draw a proper balance between the interests of those who occupied premises and the public interests of the City of Westminster being able to enforce the licensing of sex establishments. In applying the legislation it is very important to recognise that balance. It is important not to achieve any result which causes injustice to occupiers, but equally it is important to come to an interpretation which does not frustrate the need of the City of Westminster in the interests of the public to enforce the legislation with which we are here concerned.
34. Whereas it was perfectly in order, as the magistrate found, for Mr Mendoza's solicitor to give him advice as to the occupation of the basement, it is important that the legislation is not frustrated by the taking of strategic measures of the sort which were adopted here. It is unfortunate that, as a result of what happened in these proceedings and the measures which were taken on advice (according to the findings of the magistrate), the appellant has here been able successfully to avoid for a substantial period of time the consequences of the closure order which was being sought by the City Council. I would dismiss this appeal.
35. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons given by Lord Woolf CJ, whose account of the facts I gratefully adopt. I agree that on the facts found by the stipendiary magistrate the fixing of the additional closure notice addressed to "Owner/Occupier" on the entrance door to the ground floor premises at 6 Walkers Court, London W1, constituted service on the occupiers of the basement under section 8 of the City of Westminster Act 1996.
36. Mr Salter's short grounds of appeal against the decision of the Divisional Court are as follows. He submits that the Divisional Court erred in its construction of section 3(2)(a)(ii) of the 1996 Act in concluding that the council's opinion referred to in that provision relates to the occupier as well as the premises and that such a construction, it is suggested, ignores the plain and unambiguous wording of the provision. Secondly, it is said that the Divisional Court was wrong to conclude that the requirements of section 3(2)(a)(ii) of the Act are directory only and that non-compliance therewith is not fatal to a complaint brought under the Act. It is suggested that such a conclusion is incompatible with the requirements of section 4(5)(a) of the Act.
37. The relevant provisions of the 1996 Act are those to which the Lord Chief Justice has referred. They are as follows. Section 3(1) provides that the council may serve a closure notice in respect of premises of which they are satisfied that they are being used as a sex establishment without a licence. By section 3(3) a closure notice has to specify among other things any step which should be taken to remedy a breach of Schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982. The steps may include "the immediate closure of the premises to the public". I emphasise the words "to the public" because there seems to me to be a question, which does not arise on this appeal, whether the use of those words in relation to a closure notice may not affect the meaning and effect of a closure order under section 4(6)(a). The words "to the public" also appear in section 4(2)(a)(i). Returning, however, to section 3(2), this provides:

"Where a closure notice is served --

(a) it shall be served on --

(i)at least one person having control of or an interest in the business carried on in the premises; and

(ii)the occupier of any other part of the building in which the premises are situated and to which, in the opinion of the council, access would be impeded if an order under section 4(5)(a) below were made in respect of the premises;...."

38. The reference to section 4(5)(a) is plainly a mistake for section 4(6)(a).
39. If the closure notice has not been complied with, section 4(1) enables the council to make a complaint to a justice of the peace. The complaint has to be made "not less than 14 days and no later than 6 months after the service of a closure notice". Section 4(3) provides that where a complaint is made, a justice of the peace may issue a summons directed to all persons upon whom the closure notice was served under section 3(2)(a)(i), that is the person or persons having control of or an interest in the business carried on in the premises.
40. Section 4(4) provides that, where a summons issued under subsection (3) is served, a notice stating the date, time and place at which the complaint will be heard shall be served on all persons upon whom the closure notice is served under the other provisions of section 3(2). Those include an occupier served under section 3(2)(a)(ii).
41. Section 4(5) provides that on the hearing of the complaint, the court may make an order under the section if certain conditions are satisfied. These include by section 4(5)(a) that "the closure notice was properly served".
42. By section 4(6) the court may make such order under the section as it thinks fit and in particular, by section 4(6)(a), the court may order that the premises in respect of which the closure notice was served "shall be closed immediately and remain closed" until certain conditions are satisfied.
43. By section 4(6)(b) another possible order is that the use of the premises as a sex establishment be discontinued immediately.
44. By section 4(8) an order under subsection (6)(a) may include "such conditions as the court thinks fit relating to the admission of specified individuals onto the premises".
45. By section 4(9) "an order under subsection (6)(a) shall not be made if closure of the premises would result in any person other than the occupier of the premises being impeded in his access to any other part of the building in which the premises are situated and of which he is the occupier".
46. As I have already indicated, it seems to me at least arguable that an order under section 4(6)(a) that the premises "shall be closed immediately and remain closed" means that they shall be closed to the public. If that were correct, a closure order might not (depending on the facts) impede access to those who occupied the basement of the premises in the present appeal for the purpose of storing the fruit. That question, however, does not arise on this appeal and I can see that it might be argued that section 4(8) might militate against that meaning of "closed" in subsection (6)(a).
47. It is, however, in my judgment, clear that the general structure of these provisions is that a closure notice and any subsequent summary has to be served on a person having control of or an interest in the allegedly unlicensed sex establishment. Since one consequence of the summons might be closure of the premises, and since other people than those directly concerned with the sex establishment may be affected by that order, it is necessary for them to be given proper notice of what is going on, including the notice provided by section 4(4). This is plainly to enable them to attend and, if they want, be represented at the hearing of the complaint. This would be in order to make appropriate representations to ensure, for instance, that appropriate conditions are applied under section 4(8) or that an order is not made which would impede their access to the part of the premises which they occupy.
48. If the council know that there are one or more occupiers of another part of the building whose access could be impeded if a closure order is made, in my view, they should be served with closure notice under section 3(2)(a)(ii). I emphasise the word "could" being conscious that the word in the subsection itself is not "could" but "would". The question whether their access would be impeded by a closure order might depend on whether a closure order is an order that the premises be closed to the public, but it could also be affected by whether the court does or does not apply conditions under section 4(8). This means that on one view "the opinion of the council" to which section 3(2)(a)(ii) refers in relation to an occupier whom they know about could be said to depend on one or more imponderables. It seems to me that that is an unduly analytical approach to this section. Its plain purpose, in my view, is that occupiers whose access could be impeded by a closure order should be given due notice. That, however, begs the question when the closure notice has to be served on occupiers known to the council whose access could be impeded by a closure order. It is obvious, not least by reference to the provisions for service in section 8, that service of the closure notice on a person having control of or an interest in the sex establishment may not, and often will not, take place at the same time as the service of the closure notice on the known occupiers of other parts of the building. The time provisions of section 4(1) within which the council may make a complaint to a justice of the peace must therefore, in my view, run from the service of the closure notice on the person having control of or any interest in the sex establishment. Any other interpretation would mean that the time periods, as Lord Woolf CJ has explained, would be uncertain. I am quite unpersuaded by Mr Salter's submissions that the subsection should be construed so that the six months runs from the service on a person having control of or an interest in the establishment, but that the 14 days runs from service on other relevant occupiers. In my view, the words of the subsection simply will not bear that interpretation.
49. Once it is seen that service of the closure notice on known other occupiers does not have to be effected at the same time as service on the person having control of or an interest in the establishment, it is also apparent that no particular time is prescribed for service of the closure notice on the other occupiers. No doubt the known relevant occupiers should be promptly served and there might be adverse consequences for the council if they were not. But the structural requirement of the legislation is that they should be served with the closure notice and given notice of the hearing of the complaint in sufficient time to enable them to appear at the hearing of the complaint and make representations.
50. In the present case the council were genuinely unaware of the occupiers of the basement until 6 January 1999. Since, as the stipendiary magistrate's case stated tells us, the appellant first appeared before him on 6 January 1999, I infer, and we are told, that it was on that occasion that the council first learned that the basement was occupied. These occupiers were served with the closure notice two days later on 8 January 1999. This was well before the effective hearing date of the complaint, which began an 29 March 1999. At this hearing the occupiers of the basement were represented. It seems to me that the service of the closure notice on the occupiers of the basement on 8 January 1999 was in the circumstances of this case sufficient compliance with section 3(2)(a)(ii) and that the stipendiary magistrate was wrong to hold otherwise. If I am correct about this, this would have been another reason why the Divisional Court was correct in this case to decide that the stipendiary magistrate was not right in law to rule that failure to serve the occupiers of the basement with a closure notice was fatal to the appellant's case. If it were objected that the question which I have just been considering is not raised in the case stated, that is a not unfamiliar example of circumstances in which the case stated procedure is cumbersome and, I think, outdated.
51. Nevertheless, these matters, and in particular the timing of the service of a closure notice on known other occupiers, seem to me to bear on the two points which Mr Salter argues in the grounds of appeal. Taking them in reverse order, it seems to me that the requirement of section 4(5)(a) that, on the hearing of the complaint, the court has to be satisfied that the closure notice was properly served means what it says. It has to have been properly served on those upon whom it ought to have been served. I agree with the Lord Chief Justice that it is unhelpful to ask whether these provisions are mandatory or directory. Plainly the hearing of the complaint cannot properly proceed if those who ought to have been served have not been served, nor, importantly, if they have not been given due notice of the hearing of the complaint. But that does not, in my view, prevent the court in its discretion from adjourning the hearing of the complaint in a proper case to enable known other occupiers who have not been served with a closure notice to be served or to enable them to have proper opportunity to present their case. In effect that was what happened in this case and I have already indicated what in my view the position should have been upon the adjourned hearing in March 1999.
52. As to Mr Salter's first point, in my view the Divisional Court reached the correct conclusion for the reasons which Lord Justice Kennedy expressed in the short paragraph at the bottom of page 11 of the transcript. He there said:

"However, as Mr Spencer pointed out, if the Council is genuinely unaware that another part of the building is occupied, it cannot form the opinion that access to that other part would be impeded for the occupier if a Closure Notice were made in respect of the premises, and the formation of that opinion is a statutory condition precedent to the obligation to serve. Of course I accept that if it was plain to anyone who thought about it that another part of the building was occupied, and that the occupier's access would be impeded if a Closure Order were to be made, then in my judgment the Council could not escape its service obligations under Section 3(2)(a)(ii) by closing its eyes to the obvious, but nothing in the Case Stated leads me to conclude that situation applied here. Mr Salter bravely sought to persuade us that the opinion of the Council was only relevant in relation to the extent to which access would be impeded, but access is only relevant if someone needs to use it, and accordingly in my judgment, in June 1998, the Council was under no obligation to serve those basement occupiers of whose existence it was unaware."

53. It is, in my view, plain that section 3(2)(a)(ii) only requires the council to serve a closure notice on persons whom they know or ought reasonably to know are occupying other parts of the building and whose access to the premises could be impeded if a closure order were made. The council has to form an opinion that an occupier's access would or could be impeded. The council cannot form that opinion unless there are known occupiers. A hypothetical occupier will not do because a hypothetical person cannot be served. Mr Salter's submissions are, I think, self-contradictory. He submits that the council is not required by the statute to direct its mind to the question whether the premises are occupied or by whom. Plainly they are, because the occupier has to be served. Since on the stipendiary magistrate's findings the officers of the council were genuinely unaware of the presence of the occupiers of the basement, the obligation to serve a closure notice did not arise at least until they found out. For these reasons I agree that this appeal should be dismissed.
54. LORD JUSTICE JONATHAN PARKER: I also agree that this appeal should be dismissed for the reasons which my Lords have given.

ORDER: Appeal dismissed with costs in the amount sought; case to be remitted to the magistrate for the hearing to be continued.

(Order does not form part of the approved Judgment)