Cawsand Fort Management Company Ltd v Stafford
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Mr Justice David Richards,Sir Paul Kennedy |
| Judgment Date | 20 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1187 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2007 |
| Docket Number | Case No: C3/2006/2551 |
[2007] EWCA Civ 1187
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANDS TRIBUNAL
MR GEORGE BARTLETT QC
LRX/145/2005
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Mr Justice David Richards and
Sir Paul Kennedy
Case No: C3/2006/2551
Mr Guy Adams (instructed by Carroll & Co) for the Appellant
Mr Edward Denehan (instructed by Nash & Co) for the Respondent
Hearing dates: 12 th October 2007
Judgement
Introduction
Part II of the Landlord and Tenant Act 1987, as amended by the Commonhold and Leasehold Reform Act 2002, (the 1987 Act) conferred an important new jurisdiction on Leasehold Valuation Tribunals (LVT) in disputes arising from the failed management of buildings in multiple occupation. A tenant in a multi-tenanted block of flats can apply to the LVT for the appointment of a manager “in relation to” premises to which Part II applies. In its discretion the LVT may appoint a manager to carry out such functions in connection with the management of the premises as it thinks fit. The functions of management include repair, maintenance and improvement. In their judgments in Maunder-Taylor v. Blaquiere [2003] 1 EGLR 52 Aldous and Longmore LJJ explained the legislative policy in more detail.
In this case an application made to the Southern LVT by a number of long leaseholders for the appointment of a manager was not, in principle, opposed by the freehold owner of the premises. The dispute centred on the extent of the property over which a manager may be granted powers by the LVT. The appeal turns on a short point of construction of Part II of the 1987 Act, in particular sections 21 and 24, and their application to the particular facts of this case.
Since 10 June 2002 Cawsand Fort Management Company Limited (the Company) has been the registered proprietor of the freehold interest in a group of 19 th century buildings described in the heading of the proceedings as “The Fort, Cawsand, Torpoint, Cornwall.” They are situated above Cawsand Bay at the western entrance to Plymouth Sound. The main buildings were built in about 1867. The Fort is a Grade II Listed Building and a Scheduled Ancient Monument.
After 1987 a Mr Michael Peacock developed the buildings at The Fort for residential purposes. 30 residential units were created in two phases around the inside of a curtain wall, a surrounding courtyard and a central subterranean magazine. There are 11 freehold units, which are connected to mains sewerage, and 19 leasehold units, which are connected to a septic tank sewerage system. All the units enjoy access over common roadways, footpaths and common land as identified on the plans to their respective title documents. There are also car parking spaces.
The respondents to the Company's appeal include Mrs EM Stafford and other lessees or joint lessees of leasehold residential units at the Fort. The leases were granted between 1988 and 1998 by Mr Peacock, the original landlord, for a term of 999 years at a peppercorn rent.
The First Schedule to the leases described the rights, easements and privileges granted to the lessees. Subsequently Deeds of easement and covenant were entered into between owners of the freehold and leasehold units and the Company relating to entry upon and use of defined “Amenity Land” by the residents of the units for recreational uses. The Company, which covenanted to repair and maintain the Amenity Land, has not been active in carrying out its management obligations to the residents.
There is an unfortunate history of bad feeling between the Company and the residents. There have been other legal proceedings. The lessees brought an action in the Plymouth County Court to enforce their rights of first refusal of the freehold interest under Part I of the 1987 Act. (The lessees have not subsequently followed through their claims to enforce rights to acquire the Company's freehold reversion under Part I.) An issue arising on the extent of the premises to which Part I applied was resolved by the Southern LVT on an application under section 13 of the 1987 Act. The issue related to the identification of the precise extent of the appurtenances the lessees of the residential buildings were entitled to acquire under Part I.
In its determination of 18 March 2005 (paragraph 21 and 22) the LVT held that the “relevant premises” for the purposes of the right of first refusal in Part I of the 1987 were the buildings containing the dwellings and their appurtenances within the curtilages of the buildings. This comprised the pathway and gardens, the steps from the roadway and included the garages and parking bays as demised in the various leases. The easements granted by the leases were “appurtenances” but were not appurtenant land as they do not fall within the curtilage of the building.
The Company contended that the ruling of the LVT in that case should have been carried across to the provisions for the appointment of a manager under Part II of the 1987 Act so that the property over which the manager may carry out his functions is limited to the buildings and the appurtenances within the curtilage of the buildings.
The present proceedings
This appeal by the Company is in a later set of proceedings by the respondent lessees at The Fort, which resulted in an order of the LVT under section 24 in Part II of the 1987 Act for the appointment of a manager in relation to the premises.
On 5 October 2005 the LVT appointed a Mr Martin Woodhead FRICS as “Manager of the Property” for a period of three years to undertake a scheme of management. A programme of the work to be carried out by the manager was appended to the order. The areas coloured on a plan include land in the Company's freehold title located outside the buildings and their curtilages. “The Property” affected by the order was defined in the heading as “The Fort, Cawsand, Torpoint, Cornwall PL10 1PL (“The property”).” The order confers various common form powers which would be included in any order appointing a manager of or in relation to premises.
The Company appealed against the LVT order. On 7 November 2006 the Lands Tribunal (Mr George Bartlett QC President) dismissed the Company's appeal. Permission to appeal to this court was granted by Chadwick and Carnwath LJJ on a renewed application by the Company on 21 February 2007.
An appeal lies to this court on a point of law. The Company identified the legal point as an alleged excess by the LVT of its jurisdiction under section 24 in purporting to appoint a manager over or of premises to which Part II of the 1987 Act does not apply, being premises which are not comprised in the buildings containing the leasehold flats and their curtilages.
Part II of the 1987 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), which is similar to the provisions in section 1(2) in Part I of the 1987 Act.
Section 24 (1) confers power on the LVT to make an order (whether interlocutory or final) appointing 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.”
Under section 24(4) an order of the tribunal 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.
It is provided in section 24 (11) that references in Part II of the Act to the management of any premises “include references to the repair, maintenance, improvement or insurance of those premises.”
Mr Guy Adams, counsel for the Company, also referred the court to the provisions in Part I, under which a leaseholder has a right of first refusal for the acquisition of the freehold of the premises, and to the provisions in Part III of the 1987 Act, which make provision for the compulsory acquisition of the landlord's interest in certain circumstances.
The issues
The Company has no objection to the appointment of a manager in this case or to Mr Woodhead being appointed manager by the LVT, provided that the order is limited to the buildings and their curtilages as defined...
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