Cawsand Fort Management Co Ltd v Stafford & Ors

This is a renewed application for permission to appeal from a decision of the Lands Tribunal (Mr George Bartlett QC, President) handed down on 7 November 2006. That decision was on an appeal from an order made 5 October 2005 by the Leasehold Valuation Tribunal for the Southern Rent Assessment Panel under section 24 of the Landlord and Tenant Act 1987.

Part 2 of the Landlord and Tenant Act 1987 -- which includes section 24 -- applies to premises consisting of the whole or part of a building if the building (or part) contains two or more flats -- see section 21(2) -- subject to certain reservations in (section 21(3)) which are not here material. A tenant of a flat contained in any premises to which Part 2 of the Act applies may apply to the Leasehold Valuation Tribunal for an order under section 24 appointing a manager to act in relation to the premises -- see section 21(1). Sections 22 and 23 prescribe, respectively, the notice to be given by the tenant to the landlord before an application for a management order is made and the circumstances in which, following such a notice, an application may be made.

Section 24 of the 1987 Act is in these terms so far as material:

“(1)

[A leasehold valuation tribunal] may, on an application for an order under this section, by order (whether interlocutory or final) appoint a manager to carry out in relation to any premises to which this Part applies-

a)

such functions in connection with the management of the premises, or

b)

such functions of a receiver

or both as the tribunal thinks fit.

(2)

…

(3)

…

(4)

An order under this section may make provision with respect to-

a)

such matters relating to the exercise by the manager of his functions under the order and

b)

such incidental or ancillary matters,

as [the tribunal] thinks fit; and, on any subsequent application made for the purpose by the manager, [the tribunal]may give him directions with respect to any such matters.”

Subsection (11) provides that references in Part 2 to the management of any premises includes references to the repair, maintenance, improvement or insurance of those premises.

In the present case applications under section 24 were made by a number of those individuals who were tenants of residential units within a group of buildings known as Cawsand Fort. The Fort itself is described by the President of the Lands Tribunal, in paragraph 1 of his decision, in terms which I gratefully adopt:

“Cawsand Fort was built in or about 1867 above Cawsand Bay at the western entrance to Plymouth Sound. It is a grade II listed building and an ancient monument. Within the mounded fortifications it contains former barracks and other buildings that served its original functions and, beneath a central mound, large chambers constructed for the purposes of cannon emplacements and magazines. The barracks and other buildings were, some years ago, converted into residential units, and further residential units were built. The work was carried out in two phases. Access is by means of a road leading up from the road below the fort. There are car parking spaces both at surface level and in the chambers beneath the mound. The mound itself is grassed over as an amenity area.”

The present applicant, Cawsand Fort Management Company Limited, is freehold owner of those parts of the Fort which have not been sold off.

On 5 October 2005 the Leasehold Valuation Tribunal appointed Mr Martin Woodhead as manager of the fort for a period of three years. Paragraph 1 of the order was in these terms, so far as material:

“Mr Martin Woodhead FRICS of Messrs Drew Pearce, Chartered Surveyors, 14 Cathedral Close, Exeter, Devon EX1 1HA (“The Manager”), be appointed for a period of three years from the date of this Order or such other period as the Tribunal shall direct as the Manager of the Property pursuant to section 24 of the Landlord and Tenant Act 1987.”

In that context “the Property” is a defined term. It means “The Fort, Cawsand, Torpoint, Cornwall”. Paragraph 2 of the order contained directions as to the manner in which the manager should manage the property. Paragraph 3 conferred on the manager certain express powers, without limitation to the generality of the order. And there was appended to the order a programme of work to be carried out by the manager.

The applicant has no objection in principle to the appointment of a manager; or to the appointment of Mr Woodhead as that manager. The short issue is whether the Leasehold Valuation Tribunal went beyond its powers in purporting to appoint a manager of the whole of the property known as “The Fort”. It is said that, when the position is properly understood, The Fort (as described and defined in the order) includes property which is not within the relevant premises to which Part 2 of the 1987 Act applies. The issue was identified by the President of the Lands Tribunal at paragraph 11 of his decision, in these terms:

“There is one issue in the appeal - whether it was within the power of the LVT to include in the management order land in the ownership of the appellant that consists neither of residential buildings nor the curtilages of such buildings. There is no dispute that the amenity land and the rights of way over parts of the fort that owners and lessees of individual residential properties enjoy under their respective titles are outside the curtilages of the buildings.”

The point is illustrated by reference to a plan which had been attached as appendix 5 to the notice served under section 22 on 11 May 2005.

It is pertinent to have in mind that there had been earlier proceedings in relation to the Fort, brought under section 12(b) of the 1987 Act. The issue in those proceedings had been as to the extent of the appurtenances which the leaseholders of residential units were entitled to acquire under Part 1 of the 1987 Act. The outcome of those proceedings, as determined by the Leasehold Valuation Tribunal on 18 March 2005, was described by the President at paragraph 7 of his decision in the present proceedings. In short, it was held that the “relevant premises”, for the purposes of the 1987 Act in the context of a Part 1 application, were the buildings containing the dwellings and their appurtenances; that appurtenances included appurtenant property within the cartilage; and that appurtenant property comprised:

“the pathway and gardens, the steps from the roadway (including the store underneath the steps) being all freehold Title Number CL 183133 and also includes the garages and parking bays as demised in the various leases”.

As the President pointed out, in the passage in paragraph 11 of the Tribunal’s decision (to which I have already referred), it was common ground that land within the Fort included amenity land and land subject to rights of way which was outside the curtilages of the buildings.

The Lands Tribunal decided the issue against the freeholder. The President’s reasoning is, I think, encapsulated in paragraph 17 of the decision:

“As I have said, Mr Adams [who was counsel for the freeholder] accepts that ‘premises’ for the purposes of section 24 includes incorporeal rights. Such rights in the present case include access over the common roadways and footpaths, the right to use the sewerage system and in the case of 9 of the owners of the freehold units and 17 of the owners of the leasehold units, the right to enter upon and use the amenity land for recreational purposes. Mr Adams also accepts that under section 24 a manager appointed in relation to a building may be authorised to manage the ancillary rights to the easements enjoyed by tenants, for example the right to enter and repair rights of way. He is in my judgment clearly right to accept this. However, what has to be recognised is that in performing rights of repair a manager, although prompted by the tenant’s right to enjoy an incorporeal right, would be carrying out functions in the form of physical works to the servient tenement. He would not, as Mr Adams put it, be repairing the rights of way, since the rights of way are incorporeal. He would be repairing the ways themselves and these are part of the servient tenement. It seems to me for this reason to be inescapable that a management order ‘in relation to’ premises that include easements may appoint a manager to carry out functions that may include works to the serviant tenement. Those would, undeniably, be functions ‘in connection with the management of the premises’. In these circumstances it is clearly the case that the ‘property’ (to use the word in the management order) in respect of which the manager is appointed to exercise functions, may properly include appropriate parts of the servient tenement. The principal concern that led to the respondents’ application related to the amenity land over which they had incorporeal rights and in my judgment the LVT had power to make an order that included this land in the property to which the management order related.”

The freehold owner seeks to appeal from that decision. It is said that the Leasehold Valuation Tribunal, and the Lands Tribunal on appeal, misunderstood the extent of the power conferred by section 24 of the 1987 Act. The power is to appoint a manager to carry out, in relation to any premises to which Part 2 of the Act applies, such functions in connection with the management of those premises as the tribunal thinks fit. It is accepted on behalf of the freeholder that the manager appointed to carry out functions in relation to the buildings and appurtenant property within the curtilage of the buildings might properly be authorised under section 24 to manage the rights ancillary to easements enjoyed by the buildings and appurtenant property over neighbouring land subject to those easements -- what the President described as the servient land. So, for example, the manager might be able to go onto the servient land to repair ways over which rights of way were enjoyed. But that, it said, is not at all the same as appointing a manager of land which includes the servient land. A manager of the servient land would have much more extensive powers over that land than would the owner of the dominant land; and more extensive powers over the servient land than Parliament contemplated when it enacted section 24 of the 1987 Act.

The application for permission to appeal to this court was refused by Richards LJ after consideration on the papers. He thought that it might be arguable that the Leasehold Valuation Tribunal’s order went too wide in appointing Mr Woodhead as “the Manager of the Property” -- where the property was defined as the Fort -- as opposed to appointing him manager in relation to the building containing the flats and the land appurtenant thereto; but he thought that the practical implications for the parties were very limited in this case and that the wider implications were difficult to assess. He was not satisfied that the appeal would raise an important point of principle or practice or that there was some other compelling reason for the Court of Appeal to entertain it.

It is clear that Richards LJ was applying the test relevant to applications for permission to bring a second appeal prescribed by CPR 52.13 -- indeed he said so in terms -- but, strictly as it seems to me, the present application does not fall within CPR 52.13. The rule applies to an appeal to this Court from the decision of a County Court or the High Court which was itself made on appeal. Although an appeal from a decision of the Lands Tribunal made on appeal from Leasehold Valuation Tribunal may be seen, broadly, as a second appeal, it is not a second appeal within CPR 52.13: for the obvious reason that the Lands Tribunal is neither a County Court nor the High Court.

Nevertheless, there are good reasons why, in an appropriate case, this Court should apply an approach similar to that prescribed by CPR 52.13 when considering whether to grant permission to appeal in this context of appeals of this nature: that is to say, appeals from a tribunal which has, itself, been seized of the matter in an appellate capacity. Those reasons were explained by Hale LJ in Cooke v The Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279: see in particular at paragraphs 14 to 18. She pointed out, at paragraph 15, that where the issue arises in a highly specialised area of law and in circumstances where there is an independent two-tier appellate structure provided by the relevant statutory scheme, the Court of Appeal, which is unlikely to have expertise equivalent to that of the specialist appellate tribunal, should be cautious before seeking to review or interfere with its decision. In Napp Pharmaceutical Holdings Limited v The Director General of Fair Trading [2002] EWCA Civ 796, [2002] 4 All ER at 376, Brooke LJ expressed the hope that the observations of Hale LJ on this point might find their way into the White Book: the practice is now noted at 52.3.10. It is therefore with an appropriate degree of circumspection that I approach the question whether, notwithstanding that CPR 52.13 is not directly in point, permission to appeal should be given in this case.

I am satisfied that, in the circumstances of the present case, it is right to grant permission. First, as Richards LJ himself observed, the point is arguable: this is not a case in which it can be said that an appeal would have no real prospect of success. Second, the point raises a short question of construction in relation to statutory provision. The expertise of the Lands Tribunal is not in doubt; but the question raised by an appeal would not, as it seems to me, require specialist expertise. Contrast other matters which come before the Lands Tribunal -- for example matters relating to valuation -- which do require specialist expertise. And, third, it seems to me necessary to balance the caution advised by Hale LJ, in the context of a matter involving rights as between the citizen and the State with a no less relevant caution which should be observed before parties are deprived of rights in what is essentially private litigation. Rights of appeal are confirmed by statute. Statute has imposed limitations on those rights; in particular the limitations in section 55(1) and (4) of the Access to Justice Act 1999. Those limitations have been given effect by the rule-making body responsible for the Civil Procedure Rules; but that body has not, for whatever reason, thought it right to extend the limitation in relation to second appeals -- which is enshrined in CPR 52.13 -- to appeals from tribunals.

This, therefore, is a case in which it may be said that the Court should not, of its own motion, introduce a restriction which Parliament and the rule-making body has not thought necessary or appropriate. In saying that I emphasise that this is not, as it seems to me, a case in which the specialist expertise of the Lands Tribunal is engaged. I make it clear that I do not intend any qualification to the principle explained by Hale LJ as it applies in the context with which she was concerned.

For those reasons I would grant permission in this case.

I agree.