Decision Nº LRX 192 2011. Upper Tribunal (Lands Chamber), 16-05-2013
| Jurisdiction | UK Non-devolved |
| Judge | Her Honour Judge Walden-Smith |
| Date | 16 May 2013 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 192 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2013] UKUT 0243 (LC)
LT Case Number: LRX/192/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – construction of lease terms; issue estoppel; abuse of process; reasonableness of parking regulations; interference with rights
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR THE
SOUTHERN RENT ASSESSMENT PANEL
and
DEREK THEODORE MCNEILL Respondent
Re: Flat 1
The Moorings,
40 Talbot Avenue,
Talbot Woods
Bournemouth
BH3 7HZ
Sitting at: 43-45 Bedford Square, London WC1B 3AS
on 8 May 2013
© CROWN COPYRIGHT 2013
The following cases are referred to in this decision:
Arnold v National Westminster Bank Plc [1991] 2AC 93
Khan v Gollechha International Limited [1980] 1 WLR 1482
SCF Finance Co Limited v Masri (No.3) [1987] QB 1028
Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482
Petty v Parsons [1914] 2 Ch 653
West v Sharpe [2000] 79 P&CR 327
B & Q Plc v Liverpool and Lancashire Properties Limited [2001] 81 P&CR 20
Overcom Properties v Stockleigh Hall Residents Management Limited [1988] 58 P& CR 1)
Syed Mahammed Azhar Shah and Others v Colvie Management Co Limited [2008] EWCA ciz 19
International Drilling Fluids Limited v Louisville Investment (Uxbridge) Limited [1986] Ch 513
Royal Bank of Scotland Plc v Victoria Street (No.3) Limited [2008] EWHC 3052
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This is an appeal against the paper determination of the Leasehold Valuation Tribunal made on 4 October 2011 and promulgated on 21 October 2011.
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The application had been made on 20 September 2011 by the appellant, The Moorings (Bournemouth) Limited pursuant to the provisions of Schedule 11 of the Commonhold and Leasehold Reform Act 2002 (CALRA). The application was for a determination that administration charges were to be paid by the respondent, Mr D T McNeill, on the basis that he had breached his lease covenants contained in a lease dated 9 December 2008 of premises known as Flat 1, The Moorings, 40 Talbot Avenue, Talbot Woods, Bournemouth, BH3 7HZ (“the Lease”).
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The matter was listed for a site inspection on 4 October 2011 and for a paper determination. Upon promulgation of that paper decision on 21 October 2011 the appellants sought permission to appeal by a notice dated 9 November 2011 supported by written grounds of appeal. The LVT refused permission to appeal by the decision made on 21 November 2011 citing the provisions in their decision as to why permission to appeal ought not to be granted.
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The appellants applied to the Upper Tribunal (Lands Chamber) for permission to appeal and the then President, George Bartlett QC, granted permission to appeal making the following observations:
“There is a realistic prospect of success on the grounds of appeal set out. Permission is limited to these grounds and the appeal will be dealt with by way of review.”
The Parties
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The appellant is a residents’ management company and is the freehold owner of the property known as “The Moorings, 40 Talbot Avenue, Talbot Woods, Bournemouth. BH3 7HZ (“The Moorings”). The Moorings comprises a purpose-built block of 18 flats. Each of the flats is let on a long lease and each of the tenants of those flats is a shareholder in the appellant company. The appellant’s title is registered under Title No. DT368315.
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The respondent is the tenant of the title to Flat 1, The Moorings is registered at HM Land Registry under Title No. DT368317. The lease of Flat 1, The Moorings is dated 9 December 2008 and was originally between Crown Developments Limited as lessor and John Andrew Evans and Angela Elizabeth Evans (the lessee). The term of the lease is 999 years from 25 March 2008.
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The appellants were represented before me by Miss Myriam Stacey of counsel. The respondent Mr McNeill represented himself.
The Issues
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The written grounds of appeal set out two substantial issues for determination.
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whether the LVT erred in law when deciding that the respondent was not estopped from challenging the legitimacy of the parking restrictions imposed on The Moorings by the appellant. Alternatively whether challenging the legitimacy of the parking restrictions was an abusive process;
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whether the LVT erred in law in determining that the parking restrictions imposed by the appellant were not reasonable within the meaning of the lease and were therefore restrictions that the appellant had no power to impose.
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I raised an initial issue with Miss Stacey acting on behalf of the appellant as to whether if I found for the appellant it would be necessary to remit the matter back to the LVT for final determination. I am satisfied that there is sufficient evidence before me in order to make a final determination in this matter without the necessity for remitting the matter back to the LVT.
The factual background
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The factual background to this matter is set out in the Statements of Case of both the applicant and the respondent and in the witness statement of Caroline Kelleway dated 22 July 2011. The statement of Caroline Kelleway who is a Director of Burns Property Lettings and Managements Limited, employed by the appellant as Managing Agents for The Moorings, was before the LVT. In addition to the 18 flats within a purpose-built block of flats. The Moorings comprises two blocks of garages comprising a total of 18 garages with each tenant of the flats owning one garage. The lease to each of the flats provides no right to park, save for the right to use the garage.
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The rights included in the lease are set out in the First Schedule to the lease. The First Schedule includes the following provisions: Paragraph 1 provides that there is a right of access on foot only over the footpaths and such of the entrances, porches, hallways, passages, landings and staircases in the estate of the building as lead to and from the flat and the garage. Paragraph 7 of the First Schedule provides a right for the lessee and all other persons authorised by the lessee (in common with all others entitled to the Light Right) with or without motor cars and other vehicles at all times by day or by night and for all purposes to go pass and re-pass over and along the driveways, roadways and forecourts of the estate serving the garage included in this demise. Paragraph 9 of the First Schedule provides a right to pass and re-pass over those parts of the grounds of the Estate intended for communal use for all reasonable purposes connected with the use or enjoyment of the flat, including the right to use any communal garden for quiet recreational purposes. The Estate comprises the premises and its Estate roads and grassed areas.
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The appellants and the respondent agree that there had been a problem with parking on the Estate which had lead to obstruction of access to one or more of the garages on the estate. That parking had been both by residents of the Estate, the tenants and their sub-tenants, and by people with no connection to the Estate, most particularly the students from Bournemouth University, which is approximately 500 metres away from The Moorings. It appears from the papers before me that students had been using the Estate for the purpose of parking vehicles whilst attending University during the day.
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In order to alleviate the difficulties that were being caused by that parking, both by residents and by others, the then Managing Agents Rebbeck Brothers, circulated details of a parking scheme that the directors of the appellant had determined should be introduced. In a letter dated 8 February 2010, Rebbeck Brothers wrote to the tenants in the following terms:
“The Moorings – Parking Arrangements”.
Further to my letter of 14 October, it is with regret that the New Parking Procedures are yet to be implemented. It is not the case that either Rebbeck Brothers or the Directors of The Moorings have sat on this issue – a number of site meetings and discussions have been held in order to try and improve the “compromise solution”. However without spending a significant sum (approx. £4,000) on changing areas of lawn into tarmac, there is little that can be done to increase the number of spaces.
I now enclose a plan of the proposed...
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