Cawsand Fort Management Company Ltd, R (on the Application of) v Kane & Ors

Part II of the Landlord and Tenant Act 1987 permits a tribunal to appoint a manager for functions connected with premises containing two or more flats. The manager’s functions are not confined to the buildings and their curtilages. They may extend to external land where the functions have a sufficient causal link or nexus with the relevant premises, including land over which leaseholders enjoy rights.

The tribunal must determine the appropriate extent of the order. If particular functions lack that nexus, the proper remedy is an application under section 24(9) to vary the management order. A challenge based on the supposed distinction between managing land and managing functions in relation to land is a matter of substance, not terminology.

The claimant sought judicial review of a First-tier Tribunal (Property Chamber) decision appointing a manager and receiver for Cawsand Fort under Part II of the Landlord and Tenant Act 1987. The order covered the Fort, including amenity land owned by the claimant over which leaseholders had rights.

Earlier management orders had been upheld by the Lands Tribunal and the Court of Appeal, the latter decision being reported as [2007] EWCA Civ 1187. Permission to appeal against the First-tier Tribunal’s decision was refused by the First-tier Tribunal and Upper Tribunal. The claimant argued that the tribunal lacked jurisdiction because the order extended to land outside the leaseholders’ buildings and curtilages.

1. The judicial review was refused. The First-tier Tribunal did not act outside its jurisdiction in making the management order dated 4 October 2013.

2. The court declined to decide whether an appeal to the Upper Tribunal was an alternative remedy for a jurisdictional challenge. The court had supervisory jurisdiction over statutory tribunals, including jurisdiction to review an alleged excess of jurisdiction, as recognised in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738. In the circumstances, it was appropriate to determine the substantive issue despite the possible alternative appeal route.

3. Under sections 21(1) and 21(2) of the Landlord and Tenant Act 1987, the relevant premises are the whole or part of a building containing two or more flats. That identifies the premises in respect of which a tenant may apply for a manager.

4. Section 24(1), however, gives the tribunal power to appoint a manager to carry out functions “in relation to” those premises. That wording requires a causal link or nexus between the manager’s functions and the relevant premises, but does not restrict the functions to the buildings and their curtilages. Rights over servient land, including rights over amenity land, may properly be functions in relation to the leaseholders’ premises.

5. The extent of land and functions included in the order remains a matter for the tribunal’s judgment. If functions concern land over which the leaseholders have no rights, or otherwise lack the necessary nexus, the landowner’s proper remedy is an application under section 24(9) to vary the order. The First-tier Tribunal had considered the proposed functions and was not shown any specific function lacking the required nexus.

6. The conceptual distinction between an order “of” land and an order “over” land did not alter the analysis. The order was properly understood as conferring management functions in respect of land outside the leaseholders’ premises but in relation to those premises.

1. Court of Appeal — The earlier appeal between the parties was dismissed on the jurisdiction and construction issue in [2007] EWCA Civ 1187. Permission to appeal to the House of Lords was refused.
2. First-tier Tribunal (Property Chamber) — A further management order was made on 4 October 2013, amended on 18 November 2013.
3. Upper Tribunal (Lands Chamber) — Permission to appeal was refused on 3 March 2014.
4. High Court (Administrative Court) — The judicial review was refused.