Great Jackson Street Estates Limited v Manchester City Council
[2023] UKUT 189 (LC)
Blackhorse Investments (Borough) Limited v The Mayor and Burgesses of the London Borough of Southwark
5 February 2024
[2024] UKUT 33 (LC)
Upper Tribunal
A landlord accidentally missed a deadline to object to changes to a lease, and the Tribunal approved the changes without them. The landlord then argued some of the changes should not have been made because the Tribunal didn’t have the power to make them. The judge agreed and fixed the issue.
Key Facts
- •Blackhorse Investments (Borough) Ltd applied to modify covenants in the lease of The Black Horse pub, which had been converted into flats.
- •The Tribunal modified covenants prohibiting alterations, restricting assignment and subletting, and requiring the premises be kept open as a pub, without a hearing due to lack of objection from the landlord, Southwark.
- •Southwark later applied to set aside the order, citing non-service, misleading application, incoherent order, and lack of jurisdiction.
- •The application was made after Southwark obtained a copy of the order from the Land Registry and was not out of time.
- •The pub had been closed since 2019 and planning permission for its demolition and conversion into residential housing existed.
Legal Principles
The Tribunal has the power to set aside a decision disposing of proceedings if it's in the interests of justice and one or more conditions in Rule 54(2) of the Tribunal Procedure (Upper Tribunal Lands Chamber) Rules 2010 are met.
Tribunal Procedure (Upper Tribunal Lands Chamber) Rules 2010, Rule 54
The Tribunal's power to review decisions under section 10 of the Tribunals, Courts and Enforcement Act 2007 is controlled by Rules 56 and 57.
Tribunals, Courts and Enforcement Act 2007, section 10; Tribunal Procedure (Upper Tribunal Lands Chamber) Rules 2010, Rules 56, 57
Section 84(1) of the Law of Property Act 1925 allows the Tribunal to modify restrictions on land use or building, but not positive covenants.
Law of Property Act 1925, section 84(1)
A covenant restricting alienation is not necessarily a restriction on the use of land.
Various case law, notably Young Camiade's Application [2023] UKUT 96 (LC)
A ‘keep open’ covenant is a positive covenant and cannot be modified under section 84(1).
Westminster City Council v Duke of Westminster, Blumenthal v Church Commissioners for England, Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
Outcomes
The Tribunal's order was set aside in part.
Parts of the order modified covenants that the Tribunal lacked jurisdiction to modify (positive covenants and a restriction on alienation).
A new order was made.
The new order confirms that clauses 3(i), (o), and (p) remain unmodified, clause 3(k) remains in its modified form, and clause 3(n) is modified to only include the restrictive elements.