Civil Procedure: Upper Tribunal dismisses appeal against First-tier Tribunal’s case management of applications relating to s.24 order
In a series of litigation connected to the Canary Riverside property, the Upper Tribunal has determined a landlord’s appeal against the First-tier Tribunal’s case management of applications relating to the extension of a s.24 Management Order.
The background
In Canary Riverside Estate Management Ltd & others v J Abrahart & other leaseholders represented by the Residents’ Association of Canary Riverside (1) and others [2025], a property manager was appointed in 2016, extended in 2021, under s.24 of the Landlord and Tenant Act 1987 over a premium mixed riverside estate in Canary Wharf comprising five buildings.
Mr Unsdorfer was appointed as the manager of the residential parts of the estate following a number of disputes between estate owners and residents. This complex case has resulted in a lengthy chain of applications and hearings; J B Leitch reported on whether a manager appointed by the First-tier Tribunal can be an “accountable person” under the Building Safety Act 2022 in this earlier report.
The present case relates to an application made by the Residents’ Association to extend the property manager’s appointment. The First-tier Tribunal was asked to consider whether to extend the appointment or to allow it to expire, a decision made more complex since the commencement of the Building Safety Act 2022. A further hearing in autumn 2025 will consider whether the appointment continues, and the extent of the parties’ responsibilities if so.
The landlord wished for the appointment to expire, notably as extensive works to the development are required to replace external cladding for building safety purposes. A number of applications and hearings were scheduled by the FTT in respect of both the management appointment and the proposed remediation works.
The property manager sought directions from the FTT at a hearing listed for 25th November as to whether he should continue to press for funding from the Building Safety Fund and undertake remediation works, or whether the parts of the Order preventing the landlord from carrying out remediation works itself should be removed. However, the landlord issued a separate application which asked for those parts of the Order to be removed and seeking variations which would enable them to demand service charges in order to fund the performance of its obligations.
Whereas the manager’s application related only to the remediation works, the landlord’s request went further, seeking the removal of overlap between the order and building safety functions contained at Part 4 of the BSA 2022. Ultimately, however, both relate to the undertaking of remedial works necessary to remedy defects at the property.
The FTT determined that it would hear the landlord’s application at the final hearing, considering in its judgment the risk of recurrence of the circumstances which gave rise to the Order originally, and the risk of prosecution relied upon by the landlord. The FTT expected the manager and the landlord to cooperate to ensure that the landlords as accountable persons responded promptly to directions and duties, as was in all parties’ interests.
The landlord appealed to the Upper Tribunal, challenging the FTT’s directions for the final hearing on five grounds. Three of its grounds of appeal had not been argued before the FTT when it gave its permission to appeal, albeit permission was nevertheless granted.
The decision
The Upper Tribunal dismissed the appeal, finding that the landlord had raised additional arguments on appeal which had not been presented to the First-tier Tribunal.
In its judgment, the UT states:
“It is a subject of legitimate complaint by the leaseholders that, as the Riverside CREM 3 case illustrates, this is not the first occasion on which new points have been taken on an appeal, putting them to additional expense and anxiety, when the appellant could have taken the same points before the FTT and had them resolved there.”
The UT found that the FTT should consider the issues raised at the later, final hearing, giving the FTT the opportunity initially to determine those issues. The UT was not prepared to comment further on a central issue raised by the landlord as to whether the FTT was simply to bring the manager’s appointment to an end and provide for a transition of management back to the landlord, or whether a decision is to be made as to the functions remaining with the manager and whether those functions include the undertaking of remedial works. The leaseholders had not had opportunity to argue this point and for the UT to determine it would disrupt the final hearing and the case management schedule.
The UT was able only to address matters which are the subject of the appeal, and can only substitute a decision of its own where it is satisfied that the FTT has erred in law. It is not the role of the UT to express a preliminary opinion, and those matters should revert back to the FTT.
Advice and action for landlords
Although forming part of a complex series of applications in this long-running dispute, the ultimate finding in this latest hearing is that the Upper Tribunal will dismiss an appeal that is founded on issues not raised beforehand in the First-tier Tribunal.
The judgment states that this was not the first time this had occurred, presenting additional expense and concern to leaseholders, and was not procedurally correct. As a result, the landlord will need to raise its grounds in a further application in the FTT.
