Can a Highways Act 1980 s. 297 notice be served on a suspected landowner (where the land is unregistered) or can a notice only be served where there is actual evidence of occupation or evidence of receipt of rent?

Section 297 Highways Act 1980

1.1.

Section 297 of the Highways Act 1980 (HA) permits a highway authority or council to require information from the occupier or ‘landlord’ of any premises as to its ownership to enable them to discharge or exercise any of their functions under the HA. The highway authority or council may require the occupier of any premises, and any person who either indirectly or directly receives rent in respect of the premises, to state in writing the nature of their interest in the land and the name and address of any other person that they know who also holds an interest. The interests captured under s. 297 are broad and include freehold titles, leaseholds, mortgages and leases.

1.2.

If a notice requiring such information is served, and a person required to respond by s. 297 fails to do so, they are guilty of an offence¹  and liable to a fine of up to £1,000² . If such a person knowingly makes any misstatement with respect to their interest in the premises, or the details of other interest-holders, then they are guilty of an offence³ and liable on summary conviction to a fine of up to £1,000⁴, or on indictment to imprisonment for up to 2 years, or a fine, or both. Although it is an offence under s. 297 HA either to fail to provide the requested information, or to deliberately misstate the information which is provided, the obligation which arises under s. 297 to disclose such information only applies to the occupier of the premises, or any person in receipt of rent in respect of the premises.

Who is an "occupier"

2.1.

The definition of occupier has no fixed statutory meaning and should be construed from its context and the purpose for which it is used (Graysim Holdings Ltd v P&O Property Holdings Ltd⁵). In Graysim, Lord Nicholls stated at pp 334-335 that "as has been said on many occasions, the concept of occupation is not a legal term of art, with one single and precise legal meaning applicable in all circumstances. Its meaning varies according to the subject matter […] in many factual situations questions of occupation will attract the same answer, whatever the context … the answer in situations which are not so clear cut is affected by the purpose for which the concept of occupation is being used.” Lord Mustill similarly observed in Southern Water Authority v Nature Conservancy Council, that “the words 'occupy' and 'occupier' […] draw their meaning entirely from the purpose for which and the context in which they are used”⁶ . It was suggested by Lord Mance, whilst considering the meaning of ‘landed’ in Bloomsbury International Ltd v Sea Fish Industry Authority, that the correct approach to interpretation where a concept is not clearly set out in statute is to establish the intended operation of the regime at hand, and then consider what meaning should be given to the term⁷  – there, ‘landed’, here, ‘occupier’ – to reach the intended outcome.

2.2.

Case law has not yet substantially considered the application of s. 297 HA, so there is no precedent to be guided by. However, s. 297 is a provision conferring powers upon highways authorities and councils with the intention of facilitating them ascertaining the ownership of a piece of land. This context and purpose would suggest an intention to construe “occupier” broadly, just as “interest” is widely stated as “an interest therein, whether as freeholder, mortgagee, lessee or otherwise”⁸.  Nearly analogous powers to those conferred under s. 297 HA are contained within s. 16 of the Local Government (Miscellaneous Provisions) Act 1976 and s. 330 of the Town and Country Planning Act 1990. Bean LJ stated in R (Gaskin) v Richmond Upon Thames LBC that “the power to seek information under section 16 is a broad one”⁹. It is feasible, therefore, that the power to seek information under s. 297 may be interpreted similarly broadly.

Service of s. 297 notice on a suspected landowner

3.1.

A highway authority or council could serve notice under s. 297 notice on a suspected landowner of the unregistered premises regardless of evidence of occupation, or landlord status, on a benevolent construction of s. 297, but upon any failure to provide the requested information, the suspected landowner will only be guilty of an offence under s. 297 HA if they are an occupier of the land or receiving rent from the premises. Evidence of occupation or proof of rental payment (in cash or kind), respectively, would be required to confirm that one of these requirements had been met. Any enforcement action brought under s. 297(2) or (3) would fail unless the person upon which the notice was served was held to be an occupier or holder of a ‘landlord’ interest in the premises.

Conclusion

4.1.

Whilst a s. 297 notice could be served on the suspected landowner where there is no evidence of occupation or receipt of rent, on a benevolent construction of s. 297, that suspected landowner would have no obligation to respond unless they were in fact an occupier or in receipt of rent. Any failure to respond in those circumstances would not be enforceable.

Thanks to Rebecca Bell, trainee solicitor, for her contribution to this publication.