Procedure – Lands Tribunal refusing permission to appeal from leasehold valuation tribunal – Applicant seeking review of that decision – Transfer of powers to Upper Tribunal in meantime – Tribunals, Courts and Enforcement Act 2007 – Lands Tribunal Rules 1996 – Whether power to review arising under section 10 of 2007 Act – Whether general power to review decision where irregularity occurring – Application refused
In April 2009, the Lands Tribunal (LT) refused an application by the applicant for permission to appeal, under section 175(2) of the Commonhold and Leasehold Reform Act 2002, from a decision of a leasehold valuation tribunal (LVT). In May 2009, the applicant wrote to the LT suggesting that it had misunderstood certain of the applicant’s grounds of appeal and asking it to review and reconsider the question of permission; it requested an oral hearing for that purpose. In September 2009, hearing was held to determine whether the LT had power to review its own decision to refuse permission to appeal from an LVT and, if so, whether permission should be granted.
By that time, the LT had been abolished and its powers had been transferred to the Lands Chamber (LC) of the Upper Tribunal, pursuant to the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009. By paras 1 and 6 of Schedule 5 to that order, any “proceedings” that were pending before the LT immediately before 1 June 2009 were to continue thereafter as proceedings of the Upper Tribunal, and any prior decision of the LT was to be treated as a decision of the Upper Tribunal. The Lands Tribunal Rules 1996 were amended, under powers contained in the Tribunals, Courts and Enforcement Act 2007, to govern procedure in the LC.
The applicant contended that the LC was able to review the question of permission under: (i) the power conferred by section 10 of the 2007 Act; and (ii) a general power under the 1996 Rules to review a decision made under r 5D, with regard to permission to appeal, in cases where a mishap or irregularity undermined the propriety of the decision or the decision was subsequently shown to have been unfounded.
Decision: The application was refused.
(1) The application to the LT to review the refusal of permission constituted “proceedings” before it within para 1 of Schedule 5 to the 2009 Order, and its decision refusing permission to appeal was to be treated as a decision of the Upper Tribunal by virtue of para 6. The Upper Tribunal’s power, contained in section 10(1) of the 2007 Act, to review its own decision arose only where an application had been made under section 13(1) to appeal to the Court of Appeal and only if the requirements of r 59(1) of the 1996 Rules had been met; namely if, when making the decision, the tribunal had overlooked a legislative provision or binding authority that could have materially affected the decision or, since the decision, a court had made a ruling that was binding on the tribunal and could have had a material effect on the decision. In the instant case, the applicant had not appealed to the Court of Appeal against the refusal of permission and the limitations imposed by r 59(1) were not met.
(2) There was no general power for the tribunal to review a decision that it had made. Although such power might arise in the case of substantial procedural injustice, there was no suggestion of any procedural irregularity or fundamental mistake of fact in the instant case: Porteous v West Dorset District Council [2004] EWCA Civ 244; [2004] HLR 30 distinguished, R v Kensington and Chelsea Rent Tribunal, ex parte MacFarlane [1974] 1 WLR 1486 and R (on the application of Jenkinson) v Nursing and Midwifery Council [2009] EWHC 111 (Admin) considered.
Timothy Fancourt QC and Alastair Redpath-Stevens (instructed by Judge & Priestley) appeared for the applicant; Christopher Mann (instructed by Healys) appeared for certain of the leaseholders involved in the proceedings before the LVT.
Sally Dobson, barrister
