Cawsand Fort Management Company Ltd, R (on the Application of) v Kane & Ors [2014] EWHC 3808 (Admin)

Case No CO/747/2014[2014] EWHC 3808 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Bristol Civil Justice Centre,, 2 Redcliff Street, Bristol, BS1 6GRDate 18/11/14
Before
MR JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OF CAWSAND FORT MANAGEMENTClaimantCOMPANY LIMITEDClaimantTHE FIRST-TIER TRIBUNALDefendantMR & MRS R KANE AND OTHERSInterested Parties
Guy Adams (instructed by Carroll & Co) for ClaimantThe Defendant and the Interested Parties neither appearing nor being representedHearing Hearing date: 11 November 2014
Judgment

Introduction

[1]In this judicial review, the Claimant challenges the decision of the First-tier Tribunal (Property Chamber) dated 4 October 2013 appointing a manager of property known as the Fort, Cawsand, Torpoint, Cornwall under Part II section 24 of the Landlord and Tenant Act 1987 (“the Act”), on the ground that the tribunal went beyond its powers in purporting to appoint a manager of property which is not within the scope of Part II of the Act.

The Statutory Framework

[2]Part I of the Act gives tenants of flats, in certain circumstances, the right to acquire the landlord’s reversion to premises consisting of “the whole or part of a building” (section 1(2)(a)).[3]Until 30 June 2013, Part II conferred jurisdiction on Leasehold Valuation Tribunals (“LVTs”) to appoint a manager, on the application of “the tenant of a flat contained in any premises to which this Part applies…” (section 21(1)), namely “premises consisting of the whole or part of a building if the building or part contains two or more flats” (section 21(2)). From 1 July 2013, by virtue of the Transfer of Tribunal Functions Order 2013 (SI 2013 No 1036), that jurisdiction was transferred to the First-tier Tribunal (Property Chamber).[4]Before an application for a management order is made, sections 22 and 23 of the Act require service of a preliminary notice by the tenant on the landlord and on any other person with obligations relating to the management of the premises.[5]Section 24 gives the tribunal power to make a management order. So far as material, it provides:
“(1) [The appropriate tribunal] may, on the application for an order under this section, by order… 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) [The appropriate tribunal] may only make an order under this section in the following circumstances, namely – (a) where the tribunal is satisfied – (i) that any relevant person either is in breach of any obligation owed by him to the tenant under his tenancy and relating to the management of the premises in question or any part of them… (ii) … (iii) that it is just and convenient to make the order in all the circumstances of the case. … (b) where the tribunal is satisfied that other circumstances exist which make it just and convenient for the order to be made.”
By subsection (2ZA), “relevant person” includes a person upon whom notice has been served under section 22. Subsection (4) states that an order under the section may make provision with respect to “such matters relating to the exercise by the manager of his functions under the order and… such incidental or ancillary matters as the tribunal thinks fit…”. Subsection (9) provides for the tribunal to vary a management order. Subsection (11) provides that references in Part II to the management of any premises include references to the repair, maintenance or insurance of those premises. (a) such functions in connection with the management of the premises, or (b) such functions of a receiver (a) where the tribunal is satisfied – (i) that any relevant person either is in breach of any obligation owed by him to the tenant under his tenancy and relating to the management of the premises in question or any part of them… (ii) … (iii) that it is just and convenient to make the order in all the circumstances of the case. … (b) where the tribunal is satisfied that other circumstances exist which make it just and convenient for the order to be made.”

The Background

[6]Cawsand Fort (“the Fort”) is an old defence above Cawsand Bay at the entrance to Plymouth Sound, built in about 1867. It is Grade II Listed, and a Scheduled Ancient Monument. Within its fortifications, it contained barracks and other buildings with a military purpose, and, beneath a central mound, large chambers constructed as magazines.[7]In the 1980s, it was purchased by a Mr Michael Peacock for residential development of which there were two phases. In phase 1, the existing fort buildings along the southern boundary of the site were altered and extended. Phase 2 comprised primarily new build on the eastern side of the site. In total, 30 dwellings were constructed. Eleven, connected to the mains sewerage, were sold off as freehold properties; whilst the remaining nineteen, served by a septic tank, were long-leased for 99 years at a peppercorn rent. A schedule to each lease described rights, easements and privileges granted to the lessees, including the right to pass and repass over various roads, footways and common areas. A number of the freeholders and lessees – but not all – also entered into deeds of easement and covenant with the Claimant, which in 2002 bought from Mr Peacock the freehold interest of those parts of the Fort that had not been disposed to householders. These deeds gave the respective residents rights over the central mound area, termed “the amenity land”, notably a right to enter upon and use that land for domestic and recreational purposes (clause 3), the Claimant covenanting to upkeep the land, including the maintenance of trees and shrubs, walls and fences, and footpaths and drains (clause 5 and Schedule 1).[8]Over time, the Claimant failed to carry out any such maintenance. Bad feeling arose between the Claimant and the resident householders. Litigation began.[9]The leaseholders – the Interested Parties in this claim – brought proceedings in the Plymouth County Court to enforce their rights to acquire the Claimant’s freehold, under Part I of the Act. An issue arose in that claim as to the extent of the premises to which Part I applied, which was referred to the Southern Rent Assessment Panel of the LVT under section 13 of the Act (which enabled such references to be made), the issue being as to the precise extent of the appurtenances the lessees were entitled to acquire, “appurtenance” not being defined in Part I of the Act. Mr Guy Adams of Counsel represented the Claimant in that reference, as he has done in all subsequent proceedings including the claim before me.[10]In its determination dated 18 March 2005, the tribunal found that the lessees were entitled to acquire the buildings containing the dwellings and “appurtenances”, i.e. appurtenant land within the curtilage of the buildings and appurtenant rights such as easements – which could be enlarged under the Act into perpetual easements – but, in respect of those rights, not the freehold of the underlying land including the amenity land (paragraph 21-22). The tribunal thus did not find it appropriate to transfer the freehold of the amenity land (paragraph 23).[11]The lessees, however, did not proceed with their application under Part I of the Act; but rather, on 11 May 2005, they served on the Claimant a section 22 notice of their intention to make a section 24 application to the LVT for the appointment of a manager. That application was duly issued, and heard by the LVT on 13 September 2005, the tribunal issuing its determination on 5 October 2005. It did not consider that the definition of “premises” for the purposes of Part I – in other words, the extent of the property that could be acquired under that part – was determinative of the scope of its jurisdiction under section 24; but, noting that section 24(2) enabled the tribunal to appoint a manager in any circumstances in which make it “just and convenient” to do so, agreed with the comments of Aldous LJ in Maunder Taylor v Blaquiere [2002] EWCA Civ 1633 at [39] that the very width of that statutory provision “suggests that the tribunal is concerned to provide a scheme of management not just a manager of the landlord’s obligations”. The tribunal said (at [27]) that it was difficult to conceive how it could effectively do that if it was unable to make an order that related to anything other than the narrow interpretation of the premises suggested by Mr Adams. It noted that there was not a single definition of “premises” in the Act, that word being defined separately in each Part of the Act. Given the “unique and sensitive nature of the property”, an order for the manager to undertake a scheme of management including the whole area of the Fort would be appropriate.[12]Paragraph 1 of the management order made by the tribunal appointed Mr Martin Woodhead FRICS as “the Manager” for three years, expressly appointing him “pursuant to section 24 of the… Act”. By paragraph 2, having defined “the Property” as “The Fort, Cawsand, Torpoint, Cornwall PL10 1PL” (i.e. the whole Fort, including the amenity land), it provided that the Manager would manage the Property in accordance with the respective obligations of the lessor and lessees under the lease by which each of the flats were demised, the duties of a manager as defined in the Royal Institute of Chartered Surveyors’ Service Residential Management Code, and a Programme of Works attached to the order which included the imposition on Mr Woodhead of an obligation to prepare “a scheme of management relating to the maintenance, upkeep and management of the amenity land …” (paragraph 4.1 of the Programme of Works). Reiterating section 24(9) of the Act, paragraph 19 of the order expressly gave the parties permission to apply to the tribunal “for such variation of or addition to the powers contained in the Order as they may reasonably require”.[13]An appeal from the determination lay to the Lands Tribunal. The Claimant obtained permission to appeal from the President of that tribunal, Mr George Bartlett QC, who also heard the substantive appeal.[14]At the appeal, it was common ground that the amenity land was outside the curtilages of the buildings. However, Mr Adams accepted that(i) “premises” for the purpose of Part II included incorporeal rights (including, for those who had been granted it, the right to enter upon and use the amenity land) and(ii) a manager appointed in respect of a building may be authorised to manage the ancillary rights enjoyed by tenants such as the right to enter and repair the ways over which a tenant had a right of way. He has never sought to resile from those concessions.[15]At paragraph 11 of the President’s determination (reported as [2007] 1 EGLR 85), he succinctly set out the “one issue in the appeal”, namely “whether it was within the power of the LVT to include in the management order land in the ownership of the [Claimant] that consists neither of residential buildings nor the curtilages of such buildings”.[16]With regard to that issue, the parties contentions were set out in the Agreed Statement prepared for the appeal, as follows:
“1.3 The [Claimant] does not appeal against the appointment of the Manager per se. Rather on appeal the [Claimant] alleges that the LVT exceeded its jurisdiction under section 24 of the… Act because the extent of the property in respect of which the LVT’s order was made includes ‘premises’ to which Part II of the… Act does not apply. … 6.1 On appeal, the [Claimant] contends an order under section 24 of the… Act can only be made in respect of ‘premises’ within the meaning of section 21 of the… Act. It is further contended that the management order made by the [LVT] was made in respect of property which is not ‘premises’ within the meaning of section 21 of the… Act, and it therefore ultra vires. 6.2 On appeal the Respondents [i.e. the Interested Parties in the claim before me] contend that section 21 of the… Act defines a tenant’s right to apply for the appointment of a manager, and section 24… defines the jurisdiction of the LVT to appoint a manager, and the functions of the manager appointed. It is further contended that the management order made by the LVT concerns management functions ‘in relation to’ premises to which Part II of the… Act applies and is within the jurisdiction of the LVT”. ”
[17]The President preferred the Respondents’ submissions. He said this: “17. … [W]hat has to be recognised is that in performing works of repair a manager, although prompted by the tenants’ 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 servient tenement. These would, undeniably, be functions ‘in connection with the management of the premises’. In the 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 [valuation tribunal] had the power to make an order that included this land in the property to which the management order related. 18. The contention of the [Claimant] that the LVT had no jurisdiction to make a management order extending over parts of the fort that are not within the curtilage of the buildings containing the leasehold flats must therefore necessarily fail, and, since this is the only issue raised, the appeal must be dismissed…”.[18]He went on to say:
“18. … Mr Adams pointed out that the property, as defined in the order, included parts of the [Claimant’s] land over which the lessees have no rights (the buildings beneath the mound). It also included residential land that was in other freehold ownerships, although it is to be noted that there is apparently no objection on the part of those freehold owners to the inclusion of their properties. Under the programme of works, the manager is 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 have no rights. It appears to me that, in some respects, the order probably goes too far, although what parts of the servient tenement it is appropriate to include must be a matter for the LVT’s judgment. The remedy of the [Claimant], now the issue in the appeal has been resolved, is to apply to the LVT, under section 24(9), to vary the order if it feels that its provisions go beyond what is reasonably necessary.”
[19]Undaunted, the Claimant sought to appeal to the Court of Appeal, permission being granted after an oral hearing ([2007] EWCA Civ 231). Giving permission, Chadwick LJ (with whom Carnwath LJ, as he then was, agreed), said:
“The short issue is whether the LVT went beyond its powers in purporting to appoint a manager of the whole of the property known as ‘The Fort’ ”
. That issue was, he said, identified by the President of the Lands Tribunal, in paragraph 11 of his decision, quoted at paragraph 15 above.[20]The full court upheld the decision of Mr Bartlett ([2007] EWCA Civ 1187). Mummery LJ, with whom the other members of the constitution agreed, set out the issues for the court, thus:
“19. The [Claimant] has no objection to the appointment of a manager in this case or to Mr Woodhead being appointed manager by the tribunal, provided that the order is limited to the buildings and their curtilages as defined in the tribunal’s earlier ruling under section 13 of the… Act. 20. The [Claimant] based its submissions on the interpretation of “the premises” in sections 21 and 24(I) of the… Act. Its case was that the power of the tribunal to appoint a manager does not extend to granting powers over property owned by the [Claimant] outside the leased buildings and their curtilages, such as the amenity land at the Fort over which the [Claimant] granted recreational rights to residents and other land over which the lessees enjoy appurtenant incorporeal rights. To the extent that the tribunal’s order appointing a manager covered such property, it was ultra vires. 21. The lessees’ case was that section 21 defines a tenant’s right to apply for the appointment of a manager. They own premises which satisfy the requirements of the section. Each leasehold unit consists of a part of a building, which contains two or more flats. Section 24 defines the jurisdiction of the tribunal to make an appointment and to lay down the functions of the manager appointed “in relation to” the premises owned by the lessees and to carry out functions in connection with their management. They contended that the functions of the manager as set out in the tribunal’s order for his appointment are to be carried out “in relation to” premises to which Part II of the… Act applies, and the order was therefore validly made.”
[21]Then, in a passage to which I shall return, having quoted paragraphs 17-18 of the President’s determination (also quoted at paragraphs 17-18 above), he said this:
“24. In his skeleton argument Mr Adams criticised the President for treating the appeal as raising only the ‘premises issue’ and for not deciding ‘the true issue’ on the extent of the jurisdiction of the [LVT] to appoint a manager, which was limited to premises to which Part II of the… Act applied. In oral argument I understood Mr Adams to accept that ‘the true issue’ is simply another way of formulating the premises issue and that the appeal to this court, as to the Lands Tribunal, turns only on that issue.”
[22]Mummery LJ, went on to deal with that issue, as follows:
“25. Under the procedures relevant to the premises issue, which I have identified in paragraphs 20 and 21, it is necessary to consider four steps. 26. The first step is the applicant’s entitlement to apply to the tribunal for the appointment of a manager under Part II. This is governed by section 21 in Part II, which is clearly directed to the standard case of a lessee of a flat in a purpose-built block of flats or in a house or other building which has been converted into two or more flats. Section 21(1) provides that the applicant must be a “tenant of a flat contained in any premises to which this Part applies”
. Section 21(2) provides that Part II applies to “premises consisting of the whole or part of a building if the building or part contains two or more flats”. 27. The focus of the provision is on a building or part of a building containing flats. There is no dispute that Mrs Stafford and her fellow leaseholders at the Fort are entitled to apply to the tribunal for the appointment of a manager, all of them being tenants of flats in buildings to which Part II applies. 28. The second step is whether the case is one in which the tribunal could properly exercise its discretion to appoint a manager. There is no dispute on this point. The [Claimant] has no objection to the appointment under section 24 of a manager to carry out, on premises to which Part II applies, functions in connection with the management of the premises. 29. The third step is to identify the extent of the property over which the tribunal has power to appoint a manager. This is the controversial aspect of the decision of the tribunal and the Lands Tribunal. 30. Mr Adams correctly pointed to the fact that the opening words of section 24(1) contain the expression “premises to which this Part applies”. He submitted that the manager can only be validly appointed of, over or in respect of a building (together with its curtilage) to which the… Act applies, and not of, over or in respect of other premises such as, for instance, the amenity land. 31. … [T]his submission, which concentrates on ‘the premises’, does not give full effect to the language of section 24(1), which refers to the appointment of a manager to carry out functions ‘in relation to’ any premises to which Part II applies. This clearly requires a causal link or nexus between the functions to be carried out by the manager and the premises defined in section 21(1), but it does not confine the manager’s functions to buildings and their curtilages. The power of the tribunal is broader than simply appointing a manager of or over premises as a building or part of a building. For example, the recreational rights were granted by the [Claimant’s predecessor] over the amenity land. Although they were not granted over the building containing the flats, it is an accurate use of language to describe the rights granted over the amenity land as being ‘in relation to’ the premises consisting of the building which contains the lessees’ flats. In those circumstances an order appointing a manager to carry out functions ‘in relation to’ the premises may extend to the amenity land and their land not within the buildings or other curtilages. 32. The section goes on to provide what functions the manager may be appointed to carry out, ie functions “in connection with the management of the premises” which may include repair, improvements and maintenance under section 24(11). This fourth step involves a decision by the tribunal as to what management functions in connection with the premises the manager should carry out ‘in relation to’ the premises. 33. In my judgment, the flaw in the [Claimant’s] submissions on the construction of section 24 stems from narrowly concentrating on the definition of ‘premises to which the Act applies’ and neglecting the self-evident purpose of the provision and the width of the language in which the power of the tribunal is expressed. 34. The practical purpose of Part II is to protect the interests of lessees of premises, which form part of a building, by enabling them to secure, through the flexible discretionary machinery of the appointment of a manager, the carrying out of the management functions which they are entitled to enjoy “in relation to” the premises of which their flats are part. There is nothing in the language of Part II or in its aim to justify limiting a manger’s functions to those which must be carried out on “the premises to which the Act applies” in section 24(1) in the way suggested by the company by reference to Parts I and III of the… Act. Both the tribunal and the Lands Tribunal rightly rejected the company’s submissions on construction. 35. I would add that I agree with the President of the Lands Tribunal that the only issue before him (and the same is true in this court) is the question of construction. If, in the light of the ruling on that issue, it appears that the order of the tribunal goes too far by conferring powers on the manager otherwise than ‘in relation to the premises’ the proper procedure for correcting the order of the tribunal is not to appeal to the Lands Tribunal or to this court on a point of law, but to apply to the tribunal under section 24(9) for a variation of the order. The tribunal’s order contains an express liberty to apply for variation: para 19.” The appeal was thus dismissed.[23]The Claimant sought permission to appeal from the House of Lords, but, on 9 April 2008, that was refused.[24]The section 24 order of the LVT in 2005, thus upheld, was for three years expiring on 5 October 2008. By consent, the order was extended until 31 January 2009 on the same terms, to allow an application by the residents for renewal to run its course. A section 22 notice was served on the Claimant on 12 May 2008, and a further section 24 application issued on 30 April 2008. At the hearing of that application, the Claimant, through Mr Adams, repeated its contention that the order sought would exceed the tribunal’s jurisdiction. The LVT rejected that submission in its determination of 10 November 2008, and they made a management order in materially similar terms for a further five years, i.e. until 10 November 2013.[25]In anticipation of that expiry date, on 16 April 2013, the residents served a further section 22 notice, and on 20 May 2013 applied to the tribunal for the re-appointment of a manager from 1 November 2013. As I have described, the LVT was abolished on 30 June 2013, in favour of the First-tier Tribunal which, in a determination of 4 October 2013 (amended 18 November 2013), made a further management order, again in similar terms, for a further five years until 31 October 2018.[26]The tribunal set out its reasons in paragraph 55 and following of its determination which, so far as relevant, were as follows, “the Property” being defined by a plan as being essentially the whole Fort (as with the earlier management orders):
“55. The Application for an appointment of a manager of the Property is acceptable to the [Claimant] if the extent of the Property over which any order is made is changed and if the functions of the manager are set out in a different way from what is contained in the current order made by [an LVT] in 2008 and which will expire on the 31 October 2013. 56. The [Claimant]’s counter proposal is that the Tribunal issue an order but on different terms and relies upon an argument, repeated by it unsuccessfully in the past, that the Court of Appeal Decision implied that the appointment of a Manager in 2005 “went too far”
. What was said by the Court of Appeal in paragraph 35 of that decision is that the only issue before both it and the Lands Chamber (whose decision it was reviewing) was the issue of construction. If in the light of its ruling on that issue the Tribunal went too far it should be referred back to them or an application made for a variation of the order. No such application has been made nor has any reference been made back to the Tribunal until the [Claimant] submitted its arguments at the Hearing. 57. It was stated prior to and at the Hearing that the [Claimant] does not object to the Appointment. His case is that, in reliance on the possibility, identified in the Court of Appeal Decision, that the extent of the land subject to the order might be too extensive and for reasons which were never clearly explained either in written submissions or orally by his Counsel he wanted to limit the extent of the Property to which a new order would apply. 58. Mr Adams said that the Property to be subject to the order should only include the land beneath the leasehold property but that the [Claimant] had no obligations to manage that land. He conceded that the Deeds of Covenant, (referred to in paragraph 35 above) contained freeholder obligations but said that the original freeholder, (the [Claimant’s] predecessor) had received no moneys to enable him to fulfil those obligations. 59. He did not explain why the [Claimant] sought to limit the manager’s functions…. … 62. There is no agreement between the parties as to what functions should be specified in the draft order. The [Claimant] suggested that it was necessary to limit the functions to ensure the jurisdiction of the Manager was confined to those obligations of the freeholder which must be undertaken, and nothing more, but he did not explain why that was necessary given the context of eight years of successful management on the terms of the existing order without complaint from the [Claimant]. Therefore the Tribunal is not minded to accept the [Claimant’s] suggestions. 63. In the absence of any convincing justification from the [Claimant] that the terms of the current order should be changed, the Tribunal grants the application to appoint Martin Woodhead as Manager and Receiver of the Property the extent of which remains the same Property as the property to which the current order relates.”[27]Mr Woodhead was thus re-appointed manager, on the basis of a management order materially the same as those of 2005 and 2008 for a five year term expiring on 31 October 2018.[28]However, under the new tribunal regime, an appeal from the First-tier Tribunal (Property Chamber) lies, with leave, to the Upper Tribunal (Lands Chamber). Leave to appeal was refused by the First-tier Tribunal on 29 November 2013, and by the Upper Tribunal on 3 March 2014. In refusing permission to appeal, the Deputy President of the Upper Tribunal (Lands Chamber) found that an appeal would stand no realistic prospects of success in the light of(i) the decision of the Court of Appeal between the same parties, to which I have referred, and(ii) the ability of the Claimant to apply to the First-tier Tribunal under section 24(9) to vary its order if any practical issue as to scope is encountered “no such issue having arisen in the period of eight years during which a management order in the same terms has operated”.

The Claim

[29]However, the Claimant is not a quitter. Nor is Mr Adams. On 19 February 2014, on the basis of grounds settled by Mr Adams, the Claimant issued this judicial review, seeking to challenge the First-tier Tribunal’s order of 4 October 2013 purporting to appoint a manager in the terms I have described, on the basis that the tribunal did not have jurisdiction to make the order that it did.[30]The basis of the challenge is as follows. i) Under section 24 of the Act, the tribunal is empowered to appoint a manager to carry out “in relation to any premises to which this Part [of the Act] applies… such functions in connection with the management of the premises… as the tribunal thinks fit”. ii) “Premises” here means the buildings and appurtenances – both the appurtenant land or curtilage, and appurtenant rights such as easements – of the relevant leaseholders. iii) Mr Adams continues to accept that a manager appointed “in relation to… premises” may be authorised by the tribunal to manage appurtenant rights, such as the right to enter and repair a way over which the tenant has a right of way. Consequently, he said, the tribunal has the power to make a management order over land outside the land comprising the premises, in the sense of an order appointing a manager to carry out works on such land; but it has no power to make such a management order of such land, which would give the manager powers over that land which would be in competition with the rights of the freeholder. iv) Section 24 requires a management order to be for the management of the leaseholder’s premises; although that might include functions over other land, such as the amenity land. The tribunal’s order of 4 October 2013 is a management order of “the Property” which includes land outside the land comprising the premises, including the amenity land. In making an order for the management of (e.g.) the amenity land, the tribunal acted without jurisdiction. v) As it was made without jurisdiction, the order of the tribunal is a nullity, and is not amenable to an appeal. The only means of challenge is by way of judicial review. vi) Similarly, in respect of the 2005 management order – which was in materially similar terms – the LVT had no jurisdiction to make the order that it purported to make; the 2005 order was a nullity; and the Lands Tribunal did not have jurisdiction to consider the appeal it purported to consider, nor did the Court of Appeal or House of Lords have jurisdiction to consider the onward appeals. vii) Alternatively, even if the question of jurisdiction can be raised by way of appeal, where a tribunal acts without jurisdiction, that is such a fundamental procedural error that this court should in any event be prepared to intervene in the exercise of its supervisory jurisdiction. viii) In any event, the Court of Appeal decided nothing of substance. On a true construction of Mummery LJ’s judgment, he merely held that a management order could be over land outwith the relevant leaseholders’ premises – not of such land – and Mr Adams had in fact conceded that, by accepting that a manager could be properly appointed to (e.g.) enter other land and there repair a way over which a relevant tenant had a right of way. The judgment therefore did no more than accept that concession. Neither the Lands Tribunal nor the Court of Appeal gave a determinative ruling on the short but important point of law, namely whether it was beyond the statutory powers of the First-tier Tribunal (or its predecessor) to appoint a manager of property which is not within the relevant premises to which Part II of the Act applies.

The Jurisdiction of the Court

[31]On the jurisdiction of this court, I need not dwell long.[32]Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal from the First-tier Tribunal to the Upper Tribunal “on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision”. “Excluded decisions” are defined in section 11(5): that definition does not cover cases where the First-tier Tribunal has purportedly exceeded its jurisdiction. In those circumstances, it seems to me at least arguable that an assertion that the First-tier Tribunal has exceeded its jurisdiction is “on [a] point of law arising from a decision made by the First-tier Tribunal”; and thus the Upper Tribunal has jurisdiction to consider an appeal on that ground. The Lands Tribunal did not appear to have any difficulty in considering the jurisdiction issue, under the old regime – nor did the Court of Appeal – and I was unconvinced by Mr Adams’ submission that both the Lands Tribunal and Court of Appeal simply misunderstood not only the determinative point of the appeal before them and Mr Adams’ submissions, but also their own powers. The sole issue before them was, overtly, one as to the jurisdiction of the LVT. Additionally, it would be extremely unfortunate if a challenge on jurisdiction grounds to a First-tier Tribunal determination by way of appeal could be frustrated by a plea that it must be brought by way of judicial review.[33]However, in the circumstances of this case, I do not have to consider the jurisdiction of the Upper Tribunal, or its predecessor the Land Tribunal; and, as I have not heard full argument on the issue (only the Claimant being represented before me, albeit ably so by Mr Adams) and it is unnecessary for me to decide that jurisdictional issue, I decline to do so. There is no doubt that this court has a supervisory jurisdiction over so-called inferior courts and tribunals such as the First-tier Tribunal – “inferior” because they are the creatures of statute. That jurisdiction has always extended to the review of whether the relevant court or tribunal has exceeded its jurisdiction (see, e.g., R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738 at [33] per Lord Phillips MR). In my judgment, in this case, even if there were an alternative remedy by way of an appeal such that this court might exercise restraint in exercising its own supervisory jurisdiction, in all the circumstances it is appropriate for me to determine the substantive issue raised in the judicial review.

The Substantive Issue

[34]In my judgment, contrary to Mr Adams’ submissions, in respect of the challenge to the first management order, the Lands Tribunal and Court of Appeal well-understood the issue before them, which was in substance the issue which Mr Adams has sought to resurrect in this claim. Insofar as the Court of Appeal decision is not binding on me, its analysis of the issue is nevertheless persuasive; and, in my respectful view, undoubtedly right for the reasons given by Mummery LJ gave, which I have briefly summarised above. Nothing I say is intended to depart in any way from that analysis.[35]In short, Part II of the Act applies to “premises consisting of the whole or part of a building if the building or part contains two or more flats” (section 21(2)), i.e. the leaseholders’ buildings and curtilages: only leaseholders of such premises can apply for the appointment of a manager (section 21(1)). However, the functions which such a manager may be appointed to carry out are broadly drawn: he may be appointed “to carry out in relation to any premises to which this Part applies… such functions in connection with the management of the premises…” (section 24(1)) (emphasis added). Whilst that requires (in the words of Mummery LJ) a “a causal link or nexus between the functions to be carried out by the manager and the premises defined in section 21(1)”, it does not confine the manager’s functions to the buildings and curtilages comprising those premises. Rights granted over servient land are properly described as being “in relation to” dominant land: and rights over the amenity land in this case are properly described as being “in relation to” the premises consisting of the building which contains the lessees’ flats. Thus, the order which the tribunal is empowered to make under section 24(1) appointing a manager to carry out functions “in relation to” the premises may extend to land over which such rights run albeit that that land is not within the premises buildings and curtilages, e.g. the amenity land in this case.[36]The land to which the order needs to extend is a matter for the tribunal’s judgment; but, as I have said, there must be a nexus between the functions to be carried out by the manager and the premises defined in section 21(1). Where, arguably, there is no such nexus – because the manager is given functions in respect of land over which the leaseholders have no rights, such as, in this case, functions in respect of the underground chambers or the function of insuring land in which the lessees have no interest – then the appropriate course is for the aggrieved landowner to make an application to the tribunal under section 24(9) to vary the management order to exclude those functions. Paragraph 19 of the management order in this case expressly gave permission for such an application to be made.[37]In its 4 October 2013 determination, the First-tier Tribunal carefully considered the functions of the manager under the proposed order (which was in similar terms to the order which had been in place since 2005) and was unpersuaded that any had no proper nexus with the lessees’ premises. Before me, Mr Adams did not rely upon any specific functions as falling outside scope. He relied upon the proposition that the management order was “of” (rather than simply “over”) land in which the lessees had no legal rights. However, the order itself does not say that it is “of” the Property; and the Mummery LJ appears to have had no truck with this conceptual distinction, setting out Mr Adams’ submission before the Court of Appeal thus:
“the manager can only be validly appointed of, over or in respect of a building (together with its curtilage) to which the… Act applies, and not of, over or in respect of other premises such as, for instance, the amenity land”
(emphasis added). The question here is one of substance.[38]Under the management order, the manager is given management functions in respect of land of which the Claimant is the freeholder, but in respect of which the leaseholders have rights. Properly construed, the order is in respect of land outwith the leaseholders’ premises, but which is properly “in relation” to those premises i.e. within the scope of section 24. As the Court of Appeal indicated, to any extent that those functions impact on the Claimant’s status as freeholder and do not properly relate to the leaseholders’ premises, then its remedy is to apply to the First-tier Tribunal for a variation of the order to exclude such functions.

Conclusion

[39]For those reasons – which I stress are intended no more and no less to reflect the analysis of Mummery LJ when refusing the earlier appeal – in making the management order of 4 October 2013, the First-tier Tribunal did not err by acting outside section 24 of the Act and thus without jurisdiction.[40]I therefore refuse this judicial review.