Cawsand Fort Management Company, R (on the application of) v Kane & Ors

LORD JUSTICE TOMLINSON: This is a renewed application for permission to appeal against a determination of Hickinbottom J made on 18 November 2014 whereby he dismissed an application for judicial review of a decision of the First-tier Tribunal (Property Chamber) dated 4 October 2013 appointing a manager of property known as The Fort, Torpoint, Cornwall under Part II section 24 of the Landlord and Tenant Act 1987 on the ground that the Tribunal went beyond its power in purporting to appoint a manager of property, which is not within the scope of Part II of the Act.

The matter has a very long history going back to 2005, with which Hickinbottom J dealt in his judgment which is the subject of the application for permission to appeal. I do not propose to attempt simply to paraphrase what he has there said, suffice it to say that I find his reasoning completely persuasive. The judge himself refused permission to appeal observing that he in turn had found that the previous decision of the Court of Appeal in relation to this very problem in Cawsand Fort Management Company Limited v Stafford and Others [2008] 1 WLR 371 was, even if not binding, persuasive and undoubtedly correct.

Hickinbottom J thought that there was no realistic prospect of the Claimant persuading the Court of Appeal otherwise. McCombe LJ came to the same conclusion when he looked at the matter on the papers. I have come to the same conclusion, notwithstanding Mr Adams' valiant attempt to persuade me to the contrary.

Insofar as I have understood the argument, it seems to me, with respect, that a distinction is being drawn which does not, at the end of the day, amount to a real difference in that, as it seems to me, what the Court of Appeal was concerned with in 2007, as had been Mr Bartlett QC sitting in the Lands Tribunal before them, was a question of construction of the Act which question in turn was determinative of the jurisdiction or the powers, as they are sometimes called, of the Tribunal who appoint a manager. All of the arguments which have been foreshadowed today by Mr Adams, as it seems to me, were to a greater or lesser extent similarly advanced before the Court of Appeal on the previous occasion.

It seems to me that the practical problem on the ground which may have given rise to difficulty is that it would seem that for a very long period of time the Claimant failed to carry out any maintenance in respect of those parts of the property, the Fort, that is, in respect of which the individual leaseholders enjoyed rights. They enjoyed rights to pass and repass over various roads, footways and common amenity areas. There were also, of course, drains, although it may be that the 19 leasehold properties were each served by a septic tank, although I do not know where those tanks were situated and whether they were within the demise of the individual leaseholders.

Suffice it to say, as found by Hickinbottom J, that over time the Claimant company failed to carry out any maintenance, apparently using the obviously inadequate excuse that the original freeholder had received no payment referable to the carrying out of such maintenance. Bad feeling in consequence arose between the Claimant and the resident leaseholders.

When the matter got before Mr Bartlett in the Lands Tribunal, he observed at paragraph 18 that, as had been pointed out to him by Mr Adams, property as defined in the order made by the Tribunal included parts of the Appellant company's freehold over which the lessees had no rights. In particular, the order included residential land that was in other freehold ownerships and in respect of which, as I understand it, there are no relevant maintenance obligations cast upon the freeholder because, firstly, it may be that that in any event would be inconsistent with the freehold ownerships, but moreover, those freeholds are of no relevance to the various and pertinent rights which the leaseholders enjoy over what I will call for shorthand the common parts.

Mr Bartlett pointed out that there was apparently no objection on the part of the freehold owners to the inclusion of their properties in the order, but he went on to note that under the programme of work the manager was required, among other things, to keep insured the land and buildings, which would therefore extend to land and buildings in relation to which the lessees had their rights. Mr Bartlett observed:

It is that passage which I respectfully suggest Mummery LJ had in mind when, at paragraph 35 of his judgment back in 2007, he observed:

Mr Adams tells me that the freeholder company has had a very torrid time before the Tribunal when it has attempted to invoke that jurisdiction, but the difficulty, as it seems to me, lies in the fact that the Claimant company has only very recently, as I am told, appointed its own manager of the retained parts of the Fort, excepting the leasehold buildings. It is apparent, therefore, that there has now been a sea change in the position on the ground, if that is not too appalling a mixed metaphor, in that the freeholder has at last begun to recognise its obligations.

As Mr Adams has told me, the freeholder company has not gone back to the Tribunal since that change in situation which has given rise, as I understand it, to a situation on the ground whereby there are now, of course, two managers performing or purporting or attempting to perform overlapping functions. I can well understand that that is an unsatisfactory situation.

I can well understand, therefore, that in the light of the changed situation, that is to say the appointment by the company of a manager to manage the retained parts of the Fort including those in respect of which the leaseholders have rights, it may be very appropriate for the scope of the order made by the Tribunal to be revisited by the Tribunal under section 24(9).

However, valiantly though Mr Adams has sought to persuade me to the contrary, I am not persuaded that it is appropriate to grant permission to appeal to this court. Mr Adams suggests that because the original decision of the Tribunal back in 2005 was arguably a nullity so the Court of Appeal can have had no jurisdiction to determine the question at issue, but as I have already pointed out, as it seems to me, what underlies all this is simply a question of construction of the Act, the resolution of which in turn determines the scope of the Tribunal's jurisdiction. It seems to me that the Court of Appeal has already decided that point. If peradventure it had no jurisdiction so to decide it back in 2007, it seems to me that it is highly unlikely that the Court of Appeal now on revisiting the issue would come to any different conclusion than did Mummery LJ, David Richards J and Sir Paul Kennedy on that occasion.

For all these reasons, therefore, whilst I recognise that the change in circumstances may mean that it is appropriate for the matter to be reconsidered in the First-tier Tribunal (Property Chamber), I refuse permission to appeal to this court.