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

On a renewed application for permission to appeal, a proposed challenge has no realistic prospect where it substantially repeats arguments on statutory construction already addressed by the Court of Appeal and the lower judge’s reasoning is persuasive.

The scope of a tribunal’s power to appoint a manager under Part II of the Landlord and Tenant Act 1987 is determined by construction of the Act. If a management order goes beyond what is reasonably necessary, the proper route is an application to the tribunal under section 24(9) to vary it. Changed circumstances may justify revisiting the order’s scope, but do not themselves create a realistic appellate ground.

The First-tier Tribunal (Property Chamber) appointed a manager of The Fort, Torpoint, Cornwall, under Part II section 24 of the Landlord and Tenant Act 1987. The application for judicial review challenged the tribunal’s power, contending that the order extended to property outside the statutory scope.

Hickinbottom J dismissed the judicial review application on 18 November 2014 and refused permission to appeal. He considered an earlier Court of Appeal decision concerning the same issue persuasive and correct. McCombe LJ refused permission on the papers. The matter came before Tomlinson LJ as a renewed application. The central issues were whether the statutory construction point had already been decided and whether changed circumstances justified permission to appeal.

Permission to appeal was refused.

1. The essential issue was one of statutory construction. Its resolution determined the jurisdiction or powers of the tribunal appointing a manager under Part II of the Landlord and Tenant Act 1987. The arguments advanced on the renewed application had, to a substantial extent, already been advanced before the Court of Appeal in the earlier proceedings.
2. Hickinbottom J’s reasoning was completely persuasive. The earlier Court of Appeal decision was persuasive and undoubtedly correct. There was no realistic prospect that an appeal would produce a different conclusion. The argument that the original tribunal decision was arguably a nullity did not alter that analysis, because the underlying question remained the construction of the Act.
3. Where a management order goes too far by conferring powers otherwise than in relation to the premises, the appropriate procedure is an application under section 24(9) of the Landlord and Tenant Act 1987 to vary the order. The issue is not ordinarily corrected by an appeal on a point of law.
4. The freeholder’s later appointment of a manager for retained parts of the property, including parts over which leaseholders had rights, created a materially changed practical situation and potentially overlapping management functions. That change might make it appropriate for the First-tier Tribunal to revisit the scope of its order under section 24(9). It did not, however, justify permission to appeal to the Court of Appeal.

• First-tier Tribunal (Property Chamber): On 4 October 2013, appointed a manager of The Fort under Part II section 24 of the Landlord and Tenant Act 1987.
• High Court, Queen’s Bench Division, Administrative Court: Hickinbottom J dismissed the judicial review application on 18 November 2014 and refused permission to appeal.
• Court of Appeal (Civil Division): McCombe LJ refused permission on the papers. Tomlinson LJ refused the renewed application on 18 June 2015.