Sinclair Investments (Kensington) Ltd, R (on the application of) v The Lands Tribunal

A refusal by the Lands Tribunal to grant permission to appeal from a Leasehold Valuation Tribunal determination remains reviewable by the High Court in principle. Where the statutory scheme provides fair, adequate and proportionate protection against legal error, however, judicial review is confined to exceptional circumstances. Mere error of law, even an obvious one, is insufficient unless it is sufficiently grave to justify that treatment. The adequacy of the scheme depends on its procedures, the constitution and expertise of the tribunals, legislative purpose, proportionality, finality, cost and the importance of securing the correct answer. In residential service-charge disputes, whether works constitute repair or improvement is ordinarily fact-sensitive and a matter of fact and degree.

Sinclair, the freeholder of a converted residential building, challenged service charges imposed on two tenants. The Leasehold Valuation Tribunal allowed recovery of damp-proofing works to the basement flat but treated comparable works to an access lobby as an improvement outside the repairing covenant.

The Lands Tribunal refused permission to appeal, stating that the LVT had reached conclusions it reasonably could have reached and that there were no reasonable grounds for thinking the decision wrong. Sullivan J dismissed Sinclair’s judicial-review claim. The appeal concerned whether section 3(4) of the Lands Tribunal Act 1949 excluded judicial review and, if not, the proper threshold for reviewing the refusal of permission.

1. Appeal dismissed. Sullivan J’s dismissal of the judicial-review claim was upheld.
2. Section 3(4) of the Lands Tribunal Act 1949 did not make the Lands Tribunal’s refusal of permission to appeal itself appealable to the Court of Appeal. Since the legislation contained no sufficiently clear exclusion of the High Court’s supervisory jurisdiction, judicial review was available in principle. The conclusion was supported by Lane v Esdaile [1891] AC 210, In the matter of the Working Classes Act 1890 ex p Stevenson [1892] 1 QB 609 and Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262.
3. The approach in R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475 applied. The court had to assess whether the statutory scheme offered an adequate merits review and fair, adequate and proportionate protection against jurisdictional or legal error. Relevant matters included the nature of the issues, appellate procedures, tribunal constitution, legislative intention, finality, delay, cost, correctness and practical burdens.
4. The scheme for residential service-charge disputes was fair, adequate and proportionate. LVTs and the Lands Tribunal were independent judicial bodies with relevant specialist expertise. The exclusion of a High Court appeal and the limited appeal route reflected the legislative aim of resolving disputes simply, expeditiously and inexpensively. Judicial review of refusal of permission was therefore restricted to exceptional circumstances, including narrow jurisdictional error or a fundamental procedural departure denying a fair hearing.
5. A refusal could not be reviewed merely because it was obviously wrong in law. The error had to be sufficiently grave to make the case exceptional. The Lands Tribunal’s reasons, although brief, were coherent and understandable and adequately explained the refusal.
6. Whether damp-proofing works fell within a repairing covenant depended on the particular covenant, the facts and expert evidence. It was a question of fact and degree. The differing authorities on damp-proof courses demonstrated that the issue was fact-sensitive and lacked the necessary general application.
7. Proportionality also weighed against review. The modest sum at stake and the likely cost of an appeal meant that the refusal could not be characterised as obviously wrong. Article 6 of the Convention did not produce a different result.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the dismissal of the judicial-review claim: [2005] EWCA Civ 1305.
2. Administrative Court, Queen’s Bench Division, Sullivan J dismissed Sinclair’s application for judicial review of the Lands Tribunal’s refusal of permission to appeal.
3. Lands Tribunal refused permission to appeal from the LVT determination.
4. Leasehold Valuation Tribunal allowed recovery of the damp-proofing costs relating to the basement flat but disallowed approximately £10,000 relating to the access lobby.