Decision Nº LRX 127 2013. Upper Tribunal (Lands Chamber), 16-02-2015
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Mole QC |
| Date | 16 February 2015 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 127 2013 |
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UPPER TRIBUNAL (LANDS CHAMBER)
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UT Neutral citation number: [2015] UKUT 0063 (LC)
UTLC Case Number: LRX/127/2013
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – Service Charges –Sections 18, 27A and 38 Landlord and Tenant Act 1985 – jurisdiction – First-tier Tribunal striking out as abuse - issue previously decided – appeal - whether a ‘lodge’ is a ‘dwelling’ within section 18(1) and a ‘building’ within section 38 –appeal dismissed – observations on meaning of ‘building’ - matter of fact and degree
IN THE MATTER OF AN APPEAL FROM A DECISION OF THE LEASEHOLD VALUATION TRIBUNAL FOR THE SOUTHERN RENT ASSESSMENT PANEL DATED 20 AUGUST 2013
BETWEEN MR D. and MRS L. CADDICK Appellants
and
WHITSAND BAY HOLIDAY PARK LIMITED
Respondent
re: Lodge 11, Whitsand Bay Holiday Park, Millbrook, Torpoint, Cornwall, PL10 1JZ.
Before: HH David Mole QC (sitting as a Deputy Judge of the Upper Tribunal)
Sitting at: Plymouth Magistrates Court, St Andrew’s Street, Plymouth,
PL1 2DP
9 December 2014
Rawdon Crozier of counsel instructed by Fursdon Knapper, solicitors, for the appellants
Mrs J Headford of Tozers, solicitors, for the respondent
The following authorities were referred to:
Phillips v Francis [2010] 24 E.G. 118
Elitestone Ltd v Morris [1997] 1 W.L.R. 687 (HL)
Webb v Frank Bevis Ltd. [1940] 1 All ER 247 (CA)
Boswell v. Crucible Steel Co. [1925] 1 K.B. 119
New Zealand Government Property Corporation v HM & S Ltd (The New York Star). [1982] 2 W.L.R. 837
Holland v Hodgson (1871-72) LR 7 CP 328
Melluish v. B.M.I. (No. 3) Ltd. [1996] A.C. 454
Peel Land and Property (Ports No.3) Ltd v TS Sheerness Steel Ltd [2014] EWCA Civ 100
Peel Land and Property (Ports No.3) Ltd v TS Sheerness Steel Ltd [2013] EWHC 1658 (Ch)
Billing v. Pill [1954] 1 Q.B. 70
Stock v Frank Jones (Tipton) Ltd [1978] 1 W.L.R. 231
Cheshire County Council v Wooodward [1962] 1 All ER 517
Smith v Customs and Excise Commissioners (1990) VAT Decision 5579
In the matter of Bedfordshire Pilgrims Housing Assn. Ltd. (2002) LTL 20/3/2002
Chelsea Yacht and Boat Co v Pope (2000) CCRTF/0396/B2 (CA)
Johnson v Gore-Wood (No.1) [2002] AC 1
Mew v Tristmire [2011] EWCA Civ 912
Price v Nunn [2012] EWHC 1251 (Ch)
R (on the application of Hand) v Secretary of State for Communities and Local Government [2014] EWHC 314 (Admin), CO/9777/2013
Law Land Co Ltd v Consumers Association [1980] 2 EGLR 109
Aldi Stores Ltd v WSP Group, WSP London Ltd and Aspinwall & Co Ltd [2007] EWCA Civ 1260
Woodfall, Landlord & Tenant
David Copperfield, Charles Dickens.
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This is an appeal against the decision dated 20th August 2013 of the First-Tier Tribunal Property Chamber (Residential Property)(hereafter the FTT). The appeal arose in the following way.
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In December 2010 the 40 members of the Whitsand Lodge Owners Association applied to the Southern Rent Assessment Committee for recognition as a tenants' association. The effect of sections 29, 18 and 38 of the Landlord and Tenant Act 1985 was that in order to show that they were "qualifying tenants" the occupants of the lodges had to demonstrate that each of them contributed to the same costs by the payment of a "service charge," being an amount payable by a "tenant of the dwelling" in addition to rent. "Dwelling" was defined in section 38 as being "a building or part of a building occupied or intended to be occupied as a separate dwelling…" The application was opposed on behalf of Mr Wintle, the initial respondent, on the basis that the committee did not have jurisdiction to grant such a certificate because, firstly, the lodges were not "dwellings" because they were not "buildings"; secondly, the applicants were not "tenants" of the lodges at all but tenants only of the plots on which the lodges were sited.
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The Southern Rent Assessment Committee (hereafter SRAC) inspected the park, then of 58 lodges, in the presence of representatives from both sides. This inspection included the substructure of two of the lodges which it was agreed were representative of them all. On 14 June 2011 SRAC held a hearing. Both parties were legally represented and made submissions of law. Expert reports and relevant documents were received and evidence was heard. On 7 July 2011 the SRAC issued a thorough and comprehensive decision declining jurisdiction and finding that "the lodges are not the subject of tenancies, nor are they dwellings for the purposes of the Act." (Paragraph 28) There was no appeal against that decision.
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In November 2012 Mr and Mrs Hussey and 12 other leaseholders at Whitsand Bay Holiday Park, including Mr and Mrs Caddick, made an application to the SRA Panel for the determination of service charges payable under section 27A of the 1985 Act. The Leasehold Valuation Tribunal (hereafter LVT) took the point that jurisdiction to determine that matter depended upon the particular lodges being "dwellings", which point had been decided against the leaseholders (except Mr and Mrs Caddick) by the SRAC. The LVT was therefore minded to dismiss the application under regulation 11 of the LVT Regulations 2003. The point was taken on behalf of the then respondent Mr Wintle. There was a hearing on 18 February 2013. Legal submissions were made by Mr Crozier of counsel on behalf of the applicants and Mrs Headford, solicitor of Tozers, on behalf of the respondent. Those legal submissions addressed the issues of estoppel and procedural abuse contrary to the regulations. It was argued on behalf of the applicants that there had been significant changes since the last matter and that the original case had been put to the SRAC on a false basis.
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In a decision dated 18th of March 2013 the LVT noted that the matter had been fully dealt with before the SRAC and had not been appealed. The LVT dealt in detail with all the arguments raised and dismissed the application, save for the case of Mr and Mrs Caddick. The position of Mr and Mrs Caddick had been discussed at the beginning of the hearing. They were not in the same position as the other applicants as they had not purchased their lodge until after the SRAC decision. Initially Mrs Headford had indicated that the regulation 11 notice did not apply to Mr and Mrs Caddick but at the hearing she indicated that she would be seeking the dismissal of their case as an abuse of process as well. The LVT decided that it would be unfair to permit an application to dismiss to proceed against Mr and Mrs Caddick at that hearing, however Mrs Headford said a further application to dismiss was likely to be made against them later. (See paragraphs 7 - 10 of the decision.)
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Mr and Mrs Hussey and the other applicants applied to the Upper Tribunal, Lands Chamber, (hereafter UT) for permission to appeal against the LVT decision but permission was refused by the Deputy President on 22 July 2013. He said that the LVT had arrived at its own conclusions after undertaking a broad merits-based assessment of the application. None of the grounds of appeal raised an arguable case.
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In the meantime the former LVT, now the First-Tier Tribunal Property Chamber (Residential Property) (hereafter the FTT) indicated that it was minded to strike out the Caddick's case as being frivolous, vexatious or otherwise an abuse of process under Rule 11 but would give them the opportunity to persuade the Tribunal to the contrary. The case was heard on 1 August 2013. (By that time Rule 11 had been superseded by regulation 9(3)(d) of the Tribunal Procedure (First-Tier Tribunal) (Property Chamber) Rules 2013 (hereafter the 2013 FTT Rules) but no point is taken by either party in the present case that there is any significant difference between the two relevant provisions.) Mr Wintle was named as the respondent. The legal representation was as before. Mr Crozier argued that the way in which the notice had been issued against the Caddicks was unjust and...
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