UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2013] UKUT 243 (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

 

 

 

BETWEEN THE MOORINGS (BOURNEMOUTH) LIMITED Appellant

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

 

DECISION

Introduction

1.           This is an appeal against the paper determination of the Leasehold Valuation Tribunal made on 4 October 2011 and promulgated on 21 October 2011.

2.           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”). 

3.           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.

4.           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

5.           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.

6.           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.

7.           The appellants were represented before me by Miss Myriam Stacey of counsel.  The respondent Mr McNeill represented himself.

The Issues

8.           The written grounds of appeal set out two substantial issues for determination.

(1)        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;

(2)        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.

9.           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

10.        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. 

11.        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.

12.        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.

13.        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 parking arrangements and confirm that it is the intention of the Directors to implement this with effect from Monday 15 March 2010.  The permits will be issued over the next few days.  The procedures will operate in the following way:

(a) only those flats with their garage coloured pink may park in front of their garage.  A permit will be issued valid for each space and must be displayed at all times.  Please ensure that you park square onto your garage and as close up to the door as possible. 

(b) The areas outside the remaining garages and any other circulation areas must be kept clear for access at all times.  Any parking outside of the marked lines will be considered to be in contravention of the Lease on the basis that it could impede free passage of any leaseholders cars to and from their garages. 

(c) Three additional spaces shaded green on the plan will be marked out along the curb of the grass adjacent to the garages and seven spaces outside the entrance to Flats 13-18.  These spaces may only be used by those flats unable to park in front of their garage and are on a first come/first served basis.  The permits specific to these spaces must also be displayed. 

(d) The parking space outside the entrance to flats 7-12 is for emergency vehicles only and disabled parking only.  A maximum stay of 4 hours will apply to this space.  A valid disabled ticket must be displayed. 

(e) Any vehicle found parking in contravention of the above regulations will be clamped with the release fee of £150. 

Flat owners unable to find an extra space may wish to come to a private arrangement with those owners not using their garage or space in front of it.  However it is within the interest of all owners and occupiers to use their garage for parking rather than relying on spaces between the communal areas. 

If your flat is let, then it is important that you advise your tenants of how this new scheme will operate. 

Please note that these additional parking spaces are considered “discretionary” and may either by changed or withdrawn at any time.  This parking scheme is being implemented on the instructions of the Directors of The Moorings (Bournemouth) Limited. 

Thank you for your co-operation …”

14.        There was a plan attached to the letter dated 8 February 2010 which coloured the parking spaces as per the terms of the letter.  The appellant issued each tenant, including the respondent, with two permits.  First Step Security Limited were employed by the appellant to enforce the scheme.  Any vehicle parked in breach of the scheme requirements was subject to wheel clamping.  The free payable to be released from a clamp is money that the appellant says the clamping firm First Step Security Limited was entitled to as that was the method in which they were paid for enforcing the parking scheme.  At the hearing before me the respondent suggested that the appellant would obtain a percentage of payment back from any clamping fee paid.  That is a dispute of fact between them which I do not need to resolve as it is not a matter which influences my decision with regard to this appeal.

15.        On 15 March 2010 the respondent parked in breach of the scheme in that he parked on the communal lawn alternatively partly parked on the communal lawn, and not in a marked bay.  The respondent’s vehicle was duly clamped and the respondent was required to pay a release fee of £190 to First Step Security Limited to procure the release of his vehicle.  On 25 June 2010 a visitor to the respondent parked in a marked bay but failed to display a permit.  Instead of the permit, a piece of paper was placed on the dashboard on which it was written that she was visiting Flat 1.  The visitors’ vehicle was clamped by First Step Security Limited and a release fee of £150 was required prior to the release of that clamp.  Mr McNeill issued proceedings in the Bournemouth County Court claiming a refund of the £190 paid for the release of the clamp on 15 March 2010 together with court fees of £30.  In his claim form, Claim No: OBHO1168, Mr McNeill set out his brief details of claim as follows:

“My car was clamped on 15 March 2010 and I want to get my money back.  I moved into the above flat [Flat 1, The Moorings] on 1 July 2009 with no problems parking.  At the time two rows of four/five cars along side the lawn area with owners on their garage spaces.  There are problems with the students parking in front of The Moorings and then going on to the University.  But at the back apart from the odd student or two over the six months no problems.  Parking has been a longstanding problem of years with the limited space of the garages and nothing had been done about this.  I had commented on this with my letter of 27 October 2009 to Mr Strong urging that the garage space be extended about 10ft to the manhole.  We had known before but on 8 February 2010 we were told that on 15 March 2010 the white lines would be implemented and a copy of the plan enclosed.  Said plan herewith enclosed.  The markings proved a Machiavellian Disaster.  This whole concept of marking the garage areas with white lines is total discrimination and our freedom gone as if the gestapo is only too ready to look at our papers and in case we do not have our permits and if this is not a nuisance and an attack on our freedom I do not know what is…”

16.        Mr McNeill then continues in his particulars of claim to set out his concerns about the manner in which the parking spaces were laid out and his concerns with regard to other works carried out at The Moorings.  He then goes on to say “I came home late on the 14^th and with no parking I parked on the lawn - and clamped”.  Mr McNeill in his particulars of claim therefore accepted that he had parked on the lawn but raised a complaint about the legitimacy of the parking scheme. 

17.        He brought a second claim on 24 August 2010, Claim No. OBH02752, with respect to the clamping fee imposed when his visitor was clamped.  In those proceedings he said as follows:

“On the 25 June a friend was visiting me when he came out to find her car clamped.  The parking rules stated that a permit had to be displayed.  Two permits per flat were issued.  But unfortunately my two permits were trapped in my car away being repaired in Southampton, so I have taken the precaution of leaving an envelope on her dashboard, copy enclosed … the message seems loud and clear.  But the clamper had to obey orders and clamped the poor girl.” 

The photocopy of the envelope referred to by Mr McNeill in those proceedings says “ Visiting flat 1 do not clamp” which is then signed by Mr McNeill and a mobile phone number is given.  He continues with his particulars of claim by saying the following.

“I appreciate that clamping had to be introduced as in front of The Moorings students and unauthorised people were taking advantage and parking, the problem was not so bad at the back next to the garages.  I am in dispute with the management as you will find in my Case No. OBH01168 McNeill v Strong over the legality of this parking, which whilst sorting out the problems of the students in front to penalise those with the garages with lack of freedom with the loss or five places when we had solved our own problems and did not need this regime.”

The first set of proceedings had originally been issued against Mr Strong who was the wrong defendant and therefore those proceedings were dismissed but permission was given by the Bournemouth County Court for the respondent to re-issue against the proper defendant that being the appellant.

18.        These two sets of proceedings claimed the recovery of the clamping fee, respectively £190 and £150, together with the court costs.  They were also an attack upon the legitimacy of the parking scheme.  In a detailed letter in response to the claim dated 19 November 2010 from the solicitors acting on behalf of the appellant it was set out to the respondent that the claim form failed to disclose any proper cause of action against the appellant and “whilst you complain about the existence of the parking scheme you do not set out in your claim any legal argument to support your contention that the company should or could not have implemented the scheme.  Further you do not explain on what basis you are entitled to park on the lawn which our client says is prohibited.  In response to that letter, the respondent wrote on 22 November 2010 saying “As I have already passed the papers onto the small claims court I consider this now to be sub judice.”

19.        The matter came on before District Judge Dancey on Monday 13 December 2010.  At that hearing the respondent was acting in person and the appellant was acting through its solicitors.  The respondent made an admission that he was not seeking to challenge the parking scheme at The Moorings but merely the imposition of the clamping fees on the two specific occasions that he had been required to pay them.  Both cases OBH01168 and OBH02752 were consolidated with the lead claim being OBH01168.  In the preamble to the order made on 13 December 2010 it is recorded “the claimant (the respondent in these proceedings) acknowledging and accepting the parking scheme implemented by the defendant (the appellant in these proceedings) in principle and limiting his challenge to the implementation of parking charges/clamping in the circumstances of the particular occasions.

20.        In a letter dated 17 December 2010 to the respondent the solicitors for the appellant wrote to say “You have accepted that the parking scheme is valid and that your claim is now limited to the factual circumstances in which the vehicles were clamped and a release fee paid by you…  Our client does not see that you can succeed in your claim and therefore invite you to withdraw your claims for repayment of clamping fees forthwith.”  The respondent wrote back on 28 December 2010 acknowledging receipt of the letter dated 17 December and stating that he had written to Judge Dancey and that he awaited the court hearing on 18 February 2011.  In the letter dated 1 January 2011 to Judge Dancey the respondent set out that he wanted a judicial review of his claims when he agreed in principle that the Directors of The Moorings had the authority to implement a parking scheme “It is just that the engineering of same leaves doubt as to integrity… or legality.”  And in the detailed four paged letter the respondent sets out his ongoing concerns with regard to the parking scheme. 

21.        In light of the contents of the letter dated 1 January 2011 from the respondent, the appellants instructed solicitors to attend the hearing which took place on 17 January 2011 before District Judge Dancey.  Again, the respondent was in person.  That hearing has been referred to as a conciliation hearing.  It seems to me that the District Judge was endeavouring to find a resolution to the problems between the appellants and the respondent and therefore referred to this as a conciliation hearing as he may well have done had these been family proceedings.  It is clear, however, that this was a hearing before a District Judge and was not a without prejudice meeting between the parties which would therefore be confidential to those parties.  At the hearing on 17 January 2011 the respondent, again acting in person, discontinued his claim; having withdrawn the challenge to his admission made at the earlier hearing on 13 December 2010 and accepting the validity of the parking scheme.

22.        As a result of those proceedings and to the hearings, and the necessity of the appellants to defend the challenge to the parking scheme, the costs of £3,206.76 has been incurred.  The appellants determined that the costs should not fall upon the tenants generally pursuant to their service charge obligations and therefore sent a demand to the respondent claiming those costs with respect to solicitors and managing agents costs incurred as a result of the breaches of covenant by the respondent in failing to comply with the parking scheme.  As the costs have not been paid by the respondent the appellants decided to issue a section 146 notice in respect of that breach of covenant.  Consequently the appellant required a declaration pursuant to the provisions of section 168 of CALRA that the respondent was in breach of covenant.

The relevant provisions of the Lease

23.        The first schedule to the lease contained rights for the tenants to:

(1)         “Access on foot only over the footpaths of such of the entrances, porches, hallways, passages, landings and staircases of the Estate and the Building as lead to the Flat and the Garage.” (Paragraph 1);

(2)         “The right of the lessee and all other persons authorised by the lease (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 or re-pass over and along the driveways, roadways and forecourts of the Estate serving the Garage included in this demise.” (paragraph 7);

(3)         “The 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 and enjoyment of the Flat including the right to use any communal garden for quiet recreational purposes.” (paragraph 9).

24.        By paragraph 6 of the Lease the respondent covenanted with the appellants as set out in the third schedule to the Lease.  Paragraph ‘q’ of part I to the third schedule of the lease provides that the respondent is to “observe such reasonable restrictions and regulations as the lessor (the appellant in this case) may from time to time make for the good running and management of the Estate.”

25.        It is the appellant’s case that the parking scheme was a reasonable restriction or regulation made for the good running and management of the Estate and therefore came within sub paragraph ‘q’ of Part I to the third schedule of the Lease.

The Appeal

Issue Estoppel/abuse of process

26.        It is the appellant’s case that having brought claims in the county court for refund of the clamping fees associated with the Enforcement Parking Scheme, and including in those proceedings an express challenge to the validity of the scheme that he later withdrew, the respondent is now issue estopped from challenging the validity of the parking scheme in the context of these proceedings.  As an alternative, the appellants say that such a challenge is an abuse of process. 

27.        Without reciting the history of those proceedings, as is set out above, the essentials are that in the first claim the respondent challenged the concept of the parking scheme as being “a nuisance and an attack on our freedom”; and in the second claim stated that he was “in dispute with the management over the whole legality of the parking.” and averred that the enforcement of the parking scheme and clamping enforcement was draconian.  At the directions hearing on 13 December 2010, the respondent accepted the parking scheme implemented by the appellant “in principle” and, as is recorded on the Order of the District Judge, limited his challenge to the implementation of the charges and the clamping in the circumstances of the two particular occasions.  At the hearing on 17 January 2011, the respondent discontinued his claims.

28.        The LVT set out its determination in paragraph 19 of its decision.  It is worthwhile setting that reasoning out in full:

“The Tribunal has considered the estoppel argument advanced by the applicant.  The Tribunal does not consider that the respondent is estopped in the circumstances of this case.  It noted that the respondent was not represented in his claims for refund of the release fees.  It noted that the alleged concession made by the respondent was at a directions hearing of some kind and not at a full hearing where the issues were being tried.  It notes that as soon as the respondent received the Court Order he wrote to the District Judge and the Tribunal considers that what he was trying to say was that he did not agree that he had accepted the validity of the parking scheme insofar as it applied to the lessees.  The Tribunal notes from the papers submitted to it by the respondent that he does not express himself clearly or logically and it is likely that he failed to express himself clearly or logically on that occasion.  What the Tribunal considers that the respondent was doing in his letter of 1 January 2011 to the Judge was that he was trying to say that what had been recorded in the preamble to the order was not what he meant to convey.  In those circumstances, and in the light of the fact that the Tribunal agrees with the respondent that the regulations imposed by the applicant went too far and were invalid and that they sought to deprive the lessees of rights that had been given to them in their leases, the Tribunal considers that it would wrong to hold that the respondent is bound by estoppel by virtue of the preamble to the Order of 13 December 2011.  As far as the concessions the respondent may have made at the conciliation meeting are concerned, the Tribunal surmises that the meeting would have been on a confidential basis and that nothing other than the fact that the proceedings were withdrawn should be taken into account.  If that is not correct, then the Tribunal is of the same view about this alleged concession as for the alleged concession before the District Judge.

The Law

29.        The appellants contend that the challenge to the legitimacy of the parking scheme is res judicata  As an alternative, the appellants say that it would be an abuse of  process to raise the issue in the context of these proceedings given the earlier claims made in the Bournemouth County Court.  In Arnold v National Westminster Bank Plc [1991] 2AC 93, 104 Lord Keith said “Cause of action issue estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or privies or having involved the same subject matter.  In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment… The cause of action estoppel extends also to points that might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.”  In Bradford and Bingley Building Society v Seddon [1999] 1WLR 1482, Auld LJ said “the starting point is the well known dicta of Wiggram VC in Henderson v Henderson … where a given matter becomes the subject of litigation in and of adjudication by, a court of competent jurisdiction, the court requires the parties for that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, in advertence, or even accident, omitted part of their case.  Res judicata applies except in special cases, not only on points upon which the court was actually required by the parties to  form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”  Auld LJ proceeded to say “in my judgment, it is important to distinguish clearly between res judicata and the abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two and the court’s subsequent application of the above victim.  The former, in its cause of action estoppel form is an absolute bar to re-litigation, and in its issue estoppel form also, “saving special cases” or “special circumstances” …The latter, which may arise when there is no cause of action or issue of estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and for the other not to be unjustly hounded given the earlier history of the matter …  Thus abuse of process may arise where there has been no earlier decision capable of amounting to res judicata (either or both because the parties or the issues are different) for example, where liability between new parties and/or determination with new issues should have been resolved in the earlier proceedings.  It may also arise whether such an inconsistency between the two that it would unjust to permit the latter one to continue.

30.        In Khan & Golechha International Limited [1980] 1WLR 1482 it was held that the principle that issues already adjudicated upon could not be re-litigated between the parties extended to concessions and admissions as such concessions and admissions were just as efficacious for the purposes of issue estoppel as a judgement delivered after full argument.  Consequently on the facts of Khan it was held that. as the appeal in the previous action the question whether or not the transaction was a loan had been raised by the respondents’ notice and the consent order had been made on the basis of counsel’s concession that there was no loan, the claimant in the current proceedings was estopped from asserting the contrary.

31.        In SCF Finance Co Limited v Masri and Another [1987] 1QB 1028, Ralph Gibson LJ said as follows:

“The decision in Khan & Golechha International Limited [1980] 1WLR 1482 makes it clear that an order dismissing proceedings is capable of giving rise to issue estoppel.  Even though the court making such an order has not heard argument or evidence directed to the merits.  If in the present case there had been no attempt expressly to preserve the issue of the beneficial ownership of the dollar account by not conceding it, the effect of the second defendant declining to proceed with the hearing and acknowledging that her application must be dismissed must be in our judgment had been the finally to determine the issue against the second defendant… If a party puts forward a positive case, as the basis of asking the court to make the order which that party seeks, and then at trial declines to proceed and accepts that the claim must be dismissed, then that party must in our view, save in exceptional circumstances, loose the right to raise again that case against the other party to those proceedings.”

32.        Further on Ralph Gibson LJ says as follows:

“The court is applying principles which are intended to “treat an issue as laid at rest” (per Brightman LJ in Khan & Gollechha International Limited [1980], where it would be unfair and unjust between the parties to treat it otherwise; and, in particular, the court is concerned to prevent abuse of the court’s procedure by any party.  Finally Ralph Gibson LJ says this: “A litigant who has had an opportunity of proving a fact in support of his claim or defence and has chosen not to rely on it is not permitted afterwards to put it before another tribunal.  In this case the second defendant has had her opportunity to establish the case upon which her application was based; and she choose not to establish her alleged ownership of the  dollar account.”

The LVT’s reasoning

33.        As is set out above, the LVT in paragraph 19 of its decision relied on the following matters as being the reasons for dismissing the appellant’s estoppel argument:

(1)        That the respondent was not legally represented;

(2)        That the concession made by the respondent was at a directions hearing and, as is set out in paragraph 4 of the refusal of permission to appeal, the concession did not “found a judgment”;

(3)        The respondent had written to the Judge on 1 January 2011, subsequent to the directions hearing where he withdrew his objection to the parking scheme, in which letter he expressed a desire to still challenge the parking scheme;

(4)        That the subsequent “conciliation” hearing on 17 January 2011 would have been confidential to the parties and not appropriate to rely upon for holding that there had been a concession;

(5)        That the parking scheme was, in the judgment of the LVT, unreasonable and “went too far and sought to deprive the lessees of rights that had been given to them in their leases.”

34.        The authorities above make it clear that in order for an issue estoppel to arrive, or for a matter to be res judicata, it is necessary for the issue to have been an issue that was raised in earlier proceedings and that point to have been the one which was conceded in a clear manner in the face of the court.  If those two requirements are fulfilled, then a party will be estopped from raising the same issue in subsequent proceedings.  In my judgment it is clear that the respondent did raise t he issue as to the legitimacy of the parking scheme in both county court proceedings.  He then conceded the legitimacy of that parking scheme and that concession was recorded in the order of 13 December 2010.  It is of no relevance that that hearing was a directions hearing rather than a full hearing, as it was a concession made in the face of the court and recorded on a court order.  The respondent was not legally represented at that hearing, but that does not take away from the fact that he made a clear concession with regard to the legitimacy of the parking scheme.  It is not suggested that the respondent was incapable of making such a concession or that he did not intend to make such a concession.  Further, even if the letter dated 1 January 2011 should be taken as an indication by the respondent that he did not intend to concede that the parking scheme was a legitimate scheme under the terms of his lease, he renewed his concession at the hearing which took place on 17 January 2011.  That conciliation hearing was not, as I have noted above, a without prejudice meeting and the outcome of that hearing, which is recorded in a court order, is a matter of public record.

35.        Consequently I do not find the reasoning given by the LVT, that the respondent was acting in person, and that the concession made was initially made at a directions hearing and then re-made at the conciliation hearing, are grounds that withstand scrutiny and they do not support a finding that the respondent is not to be estopped from raising the issue of the legitimacy of the parking scheme again.  Both Khan and SCF Finance, referred to above, make it clear that a concession made in a directions or other preliminary hearing is still a concession.

36.        In my judgment, the LVT further erred in determining that the respondent should not be estopped from raising an argument with respect to the legitimacy of the scheme, because the LVT had taken a view that the parking scheme was unreasonable and therefore one that could not be imposed upon the lessees including the respondent.  Whether the respondent was estopped from raising the arguments on the legitimacy of the scheme is a matter which stands alone from the issues as to the legitimacy of the scheme.  Quite plainly, it would be wrong to determine the substantive issue, and then place reliance upon that determination to say whether or not a party is estopped from raising the arguments.  Whether or not the parking scheme was legitimate has no bearing upon whether the respondent is issue estopped.

37.        In the circumstances therefore, it is my determination that the issue as to whether the parking scheme was legitimate had already been determined by way of concession, and the respondent was therefore estopped from raising that issue further in the context of these proceedings.  Having come to that determination, the respondent cannot contest that the parking scheme is not legitimate and he is liable to pay the administration charges as sought by the appellants. 

38.        However, in the interest of completeness, and should I be wrong in that determination I will also deal with the argument as to whether the parking restrictions was legitimate.

The Parking Scheme

39.        In his statement of case dated 21 May 2012, the respondent raises a number of issues where he has a complaint against the appellants.  He reiterated those concerns in his oral submissions before me.  I made it clear to Mr McNeill, and he accepted, that many of those matters were not relevant for the purpose of the issues before me.  With respect to the legitimacy of the parking scheme he refers to a number of issues.  He states that on 25 June 2010 his visitor was clamped in spite of the notice on her dashboard and him coming out with her to pay the clamping fee.  He says that in or about March of 2012 someone had rung him and told him that a car had been parked in the front of the Estate without a permit.  He discovered that a note had been placed on the dashboard of that car saying that it was a nurse attending one of the flats.  He points to the difference in treatment between that car and the car of his visitor as showing unreasonableness which the scheme has been conducted by the appellants.  The respondent further complains that there was no consultation prior to the imposition of the parking scheme and that had there been a Residents Committee there would have been a meeting of the Residents Committee in order to deal with the issue of the parking scheme.  The respondent continues in his statement of case that parking had never been mentioned in the lease and the tenants came and went freely.  He says that the space has now be designiated as discretionary and that the only place to park legally is in the garages.

40.        At the oral hearing before me I gave Mr McNeill, the respondent the opportunity to outline any other issues that he had with regards to the reasonableness of the parking scheme.  He told me that there had been no consultation and that the parking scheme was arbitrarily imposed.  He said everything was done in secret and that everything comes down to money. I specifically asked the respondent as to whether there had been any interference with his rights of way or his right to access the flat.  Despite giving him the opportunity to say whatever he wished to with regard to that point, even though I recognised that this is a review hearing and no a re-hearing, the respondent did not take that opportunity and did not at any time say that the parking scheme interfered with his rights over the Estate.  His query appeared to be that if a tenant has a garage, why should they be parking outside.  He complained about a specific incident where one of his neighbours who was ill was being visited by her nephew who had come from London and he was then clamped.  In the respondent mind that was in-human.  He said it was all about the money, and he complained that a particular invoice had gone missing.  He said he wanted to know where the money had gone, the money he refers to is the service charges.  I explained to the respondent that the purpose of the appeal hearing was to consider the decision that the LVT had made with regard the parking scheme.  If he had other issues with regard to the service charge and the amount claimed then that would be a matter for a separate hearing. 

41.        In paragraph 18 of the determination the LVT stated as follows:

“The Tribunal finds that in order for the respondent to have been in breach of his lease by not parking in a marked bay on 15 March 2010 and by permitting his visitor to park without displaying a permit on 25 June 2010 the parking regulations which is alleged he feel foul of would have to amount to “reasonable restrictions and regulations of good running and management of the Estate in order to bring the scheme without paragraph Q of the third schedule.  The Tribunal does not accept that the restrictions and regulations imposed on the lessees by the parking scheme that was implemented by the applicant were reasonable as far as they were concerned.  The Tribunal does accept as does the respondent, that something has to be made to curb the parking in The Moorings grounds and vehicles but had nothing whatsoever to do with the property or the residents, in particular the need to prevent parking by students attending the nearby University.  However the Tribunal considers that the applicant went too far in extending this particular scheme to the lessees.  The reason why the Tribunal takes this view is that a specific right is given in the leases for the lessees to pass and re-pass over the whole of the communal areas.  By specifying that some lessees can have the exclusive use of part of their communal areas, by being able to park a vehicle in a particular stop to the exclusion of every other lessee the applicant has respectively derived other lessees of the rights given to them in their leases.  The Tribunal does not consider that the restrictions and regulations referred to in paragraph ‘q’ of the Third Schedule may be of such a nature and be so expensive that by regulation the landlord cannot abrogate the rights given to all the lessees in their leases.  Of course, if all the lessees had agreed to the scheme that that would have been a different matter but the respondent for one did not agree and the Tribunal does not consider that this is a matter whereby, in effect, the rights given by his lease can be expunged without his agreement.  It is to be noted that the breach alleged if a failure to comply with the regulations and restrictions imposed by the parking scheme.  It is not alleged that the respondent was in breach of his lease by parking at all, and there is no express right to park given in the lease.  That would be a different alleged breach to which there may be a different defence.  The Tribunal had confined its determinations to the specific breach alleged.”

42.        The LVT were correct to consider whether the imposition of the parking scheme came within paragraph Q of Part 1 of the third schedule.  In reaching that determination the LVT  was obliged to consider whether the parking scheme infringed the lessees rights under the leases and, if so, whether such an infringement was unreasonable in the context of these leases.

43.        As I have already set out, the first schedule to the leases gives the lessees various rights of access.  The respondent does not seek to contend that those rights had been interfered with.  His concern appears to be that this scheme was imposed at all.

44.        In Pettey v Parsons [1914] 2 Ch 653 Swinfen Eady LJ set out that the question for a court in determining whether there has been a unlawful interference with the right of way is whether there have been a “substantial interference with the easement as granted.”  He goes on to say, “In my opinion that is the true test in such cases, whether the easement has been substantially interfered with.”  In Overcom Properties v Stockleigh Hall Residents Management Limited [1988] 58 P&CR 1,  the High Court had to consider whether a scheme of parking proposed by the freehold owner of a block of flats constituted a real and substantial interference for the enjoyment of a right of way over a forecourt.  Vinelock J said, “the question therefore is whether the carrying out of the proposed scheme would amount to a substantial, and real, interference with the enjoyment of the rights of way over the forecourts.  In approaching this question it must be borne in mind that when the leases were granted the forecourt was laid out as it is now with a road running along each side of the main stem of the T and around the top of the bulb.  It must have been contemplated that licences of the lessees would from time to time want to use the road for vehicles suitable for delivering goods and on occasion large loads – for instance, when a lessee moved in or moved out or when substantial works were carried out to the flats.  It would be unreasonable to expect a vehicle to back out into the Prince Albert Road, which is a busy road, or to back round the ornamental bed of the roadside end of the stem of the T.  The lessees are I think, entitled to object to any obstruction to the roadway that would make it impossible for vehicles of the kind that might be expected to want access to the flats to park and load or unload and to continue round the roadway and out onto the far side.”

45.        In West v Sharpe [2000] 79 P&CR 327 Mummery LJ said “Not every interference of an easement, such as a right of way is actionable.  There must be substantial interference with the enjoyment of it.  There is no actionable interference with the right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction.  Thus, the grant of the right of way in law in respect of every part of the defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part.  He can only object to such activities, including obstruction, and substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.”

46.        Finally, in B&Q Plc v Liverpool and Lancashire Properties Ltd [2001] 81 P&CR 20 Blackburn J had to consider the landlord’s proposal to construct an extension which would reduce the area of the service yard at the rear of one of the units at the retail park which would thereby reduce the turning circle available to B & Q’s vehicles.  Blackburn J concluded that the question was whether the right of way would be substantially and practically exercised as conveniently as before.  In applying the test of substantial interference he held: “At the end of the day, however the question is put, whether difficulties of this kind, i.e. movements made more difficult than would have otherwise have been at the area of the unit 2 service yard has not been reduced, but likely in practice to have occurred so infrequently and, when they do occur, can be overcome by the obstructive vehicle either waiting, or resorting to the turning area of the northern service yard on relying on driving cooperation, that they can for all practical purposes be ignored.  If they can then it cannot be said that the effect is to prevent the right conferred on B & Q from being substantially and practically exercised as conveniently after the extension has been built as before.

47.        In paragraph 18 of their determination the LVT set out that as the respondent did not agree to the scheme then it was not one which could be imposed upon the lessees.  That reasoning does not bear scrutiny.  The lease entitles the lessee a right of access over the Estate but that right of access is subject to the appellant’s right to make reasonable restrictions and regulations for the good running and management of the Estate.  An objection by one of the lessees to such a restriction or regulation does not make that restriction or regulation unreasonable.

48.        The question that the LVT ought to have posed to itself was whether the scheme did in fact interfere with the respondent’s right and, if so whether that interference was unreasonable.  There was nothing in the evidence before the LVT upon which the LVT could properly have come to the conclusion that the respondent’s rights of access had been taken away or substantially interfered with.  And the marking out of the parking spaces on the Estate as shown on the plan attached to the letter of 8 February 2010, was not something that would obviously interfere with the right of access substantially, if at all.  Further, having given the respondent the opportunity to draw to the attention to this Tribunal any matters which he considered gave rise to an interference with the right of access, the respondent did not provide any further information.  On the evidence before me, which was the evidence that was before the LVT, there is, in my judgment, no basis upon which it could have found that there was a substantial interference with the rights granted to the respondent and the other lessees under the terms of the lease.

49.            Even if there had been an interference with the rights of access across the Estate, and that interference was a substantial interference, it was still necessary for the LVT to consider whether such interference was reasonable. 

50.            In Syed Mahammed Azhar Shah and Others v Colvia Management Co Limited [2008] EWCA Civ 19,  the Court of Appeal was considering the attempt to regulate the use of congested car parking areas forming part of the Barking Industrial Park.  The leases of the various units provided rights to the lessees,  including “the right to pass and re-pass on foot only over and along the footpaths and with or without vehicles to pass and re pass only over and along the access ways, roads and rights of way shown on the plan annex hereto.  But only in so far as is necessary for gaining access to or egress from the demised premises and subject to compliance by all persons exercising such rights with all reasonable regulations, directions and signs as may be made or erected by the Company or the landlord for controlling the free flow of traffic throughout the Estate.”  Lloyd LJ, giving the judgment at the Court of Appeal, set out that the provisions contained in the lease under which a landlord can exercise some control over what the tenant does subject to a requirement of reasonableness on the part of the landlord are very familiar especially in the context of assignment and underletting and alterations.  He said that in this case it was not quite the same, since Colvia, in promulgating the scheme, was acting as Management Company not as landlord.  “Nevertheless, and despite the ownership of the Management Company by the lessees, it seems to me that cases about assignment or alterations provide a useful analogy.”  Lloyd LJ then referred to the case of International Drilling Fluids Limited v Louisville Investment (Uxbridge) Limited  [1986] Ch 513.  That case was about assignment and change of use, and Balcombe LJ drew together seven principles from previous cases.  In summary these were as follows:

(1)        The onus of proving that consent has been unreasonably withheld is on the tenant;

(2)        It is not necessary for the landlord to prove that the conclusions which led him to refuse consent were justified, if they were conclusions which might be reached by reasonable man in the circumstances;

(3)        It may be reasonable for the landlord to refuse his consent to an assignment on the grounds of the purpose for which the proposed assignee intends to use the premises, even though that purpose is not prohibited by the lease;

(4)        There was a divergence of authority on the question, in considering whether the landlord’s refusal of consent it reasonable, whether it is permissible to have regard to the consequences to the tenant if consent to the proposed assignment is withheld.

(5)        Balcombe LJ held that a proper reconciliation of those two streams of authority can be achieved by saying that while the landlord need usually only consider his own relevant interests, there may be cases where there is such an extreme disproportion between the benefit of the landlord and the detriment to the tenant if the landlord withholds his consent to the assignment, that it is unreasonable for the landlord to refuse consent;

(6)        Subject to the proposition set out above it is, in each case, a question of fact, depending on all the circumstances, whether the landlord’s consent to assignment is being unreasonably withheld.

51.        In considering those propositions, Lloyd LJ said “above all, it is those who are certain that the scheme is unreasonable to prove that it is.  In order to prove this, it has to be shown on the basis on which the decision to promulgate the scheme was founded was not one which a reasonable landlord (or, here, Management Company) could have adopted in the circumstances.  That proposition has something in common with aspects of the familiar public law test of unreasonableness: see associated Provincial Picture Houses Limited v Wendesbrie Cooperation [1948] 1KB 223.  Counsel mentioned that case in their written submissions to us.  However, it seems to us that this is a misleading and potentially confusing analogy to which resorts should not be had in a private law case such as the present.

52.        As a consequence , it is for the respondent to establish that the scheme was an unreasonable one.  It would only be unreasonable if it falls outside the range of reasonable views as to what could be done.  Both the LVT and the respondent recognise that something had to be done to curb the parking.  With analogy to the unreasonable withholding of consent to assignment cases, the restriction or regulation would not be unreasonable unless it was one that no reasonable landlord, aware of the facts, could have arrived at. (See Morgan J in Royal Bank of Scotland Plc v Victoria Street (No.3) Limited [2008] EWHC 3052).  The appellants’ obligation is to show that the restriction or regulation was reasonable.  Not that the scheme was right.  It was for the respondent to establish that the parking scheme was unreasonable, it was not for the appellants to establish that the parking scheme was reasonable.  In the absence of any evidence that there was a substantial interference with the lessees rights of access over the estate and the lack of evidence that such a interference (if there was one) was unreasonable, the LVT had no grounds for determining that the parking regulations fell outside of being “reasonable restrictions and regulations for the good running and management of the Estate.”

Conclusion

53.        In the circumstances therefore I allow this appeal.

54.        The appellants have succeeded in establishing that the respondent was estopped from raising the argument that the parking restrictions had been unlawfully imposed by the appellants.  Further, if the respondent was entitled to still raise that argument, I find that the parking scheme was reasonable, that there was no substantial interference with the rights of access across the Estate and the parking scheme was therefore a reasonable restriction or regulation for the good running and management of the Estate.

55.        In the circumstances, the respondent has breached his lease covenants and is liable to pay the administration charges.

 

Dated 16 May 2013

 

Her Honour Judge Karen Walden-Smith