Home Information Cases Joan Denise South v Trustees of the Phillimore Kensington Estate (2001)

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Joan Denise South v Trustees of the Phillimore Kensington Estate (2001)

Summary

The decision of the Lands Tribunal could not be criticised in any way. It had reached clear findings on the materials before it.

Facts

Appeal by way of case stated from the decision of the Lands Tribunal ('the tribunal') dated 23 March 2000 in which it dismissed the appeal of Mrs South ('the appellant') from the determination of the Leasehold Valuation Tribunal ('LVT') dated 15 September 1998. The respondents were the freehold owners of 26 Upper Phillimore Gardens, London W8 ('the property'). The property was the subject of a 75-year lease granted on 17 March 1922. The appellant acquired the lease in 1960. On 11 March 1997, the appellant gave notice under the Leasehold Reform Act 1967 of her intention to acquire the freehold interest in the property, and accordingly sought a valuation under s.9(1)(c) of the Act. The LVT valued the freehold interest at #2,000,075. The appellant appealed and the respondents cross-appealed. Each party adduced expert evidence at the hearing before the tribunal. There were essentially three issues : (i) the open market value of the freehold interest on 11 March 1997 ('the market value'); (ii) the relevant deduction for tenant's improvements; and (iii) any deduction for the risk that the appellant might have failed to give vacant possession on expiry of the lease. On the issue of the market value, the respondents' expert relied upon a number of comparables, namely, freehold comparables, leasehold comparables, settlements under the Act, and offers made to the appellant prior to the relevant date. The tribunal assessed the freehold comparable as between #2.1M and #2.6M. It assessed the leasehold comparable as between #2.1M and #2.38M. The tribunal concluded that settlements under the Act were not a relevant comparable in the instant case and concluded that offers made to the appellant prior to the relevant date did not affect the credibility of the respondents' expert. Finally, the tribunal concluded that there was no deduction for the risk of the appellant failing to give vacant possession because the evidence showed that she would not have failed to do so. The tribunal determined the valuation at #2,395,000, and accordingly dismissed the appellant's appeal and allowed the cross-appeal. This was an appeal by way of case stated from that decision. The appellant argued that the tribunal had failed adequately to show how it had reached its conclusions when it assessed the freehold and leasehold comparables, and that the tribunal had erred in failing to take into account a particular property as a comparable. Further, the appellant argued that the tribunal had erred in failing to attach weight to settlements under the Act, that the tribunal had erred in failing to take account of the offers made to the appellant as affecting the credibility of the respondents' expert and finally, that the tribunal had erred in concluding that she would have given vacant possession.

Held

(1) This was an appeal by way of case stated and could only therefore be an appeal on a question of law (see s.3(4) Lands Tribunal Act 1947). The only basis upon which the tribunal's decision could be attacked was whether it had made an error of law, or reached a decision of fact that no reasonable tribunal could have reached if properly directed. (2) The decision of the tribunal in the instant case could not be criticised on any of the grounds advanced by the appellant. (3) The tribunal's determination was clear in the manner in which it dealt with leasehold and freehold comparables. It was fully entitled to take into account the comparables that it did and reject others. It was also entitled to take into account the settlements under the Act or reject them. (4) The offers made to the appellant prior to the relevant date were only relevant as to the credibility of the respondents' expert's valuation. The tribunal was aware of the figures put forward and was entitled to reach the conclusion that the figures did not effect the credibility of the expert. (5) Further, there was no basis for an appeal against the tribunal's conclusion that the appellant would have failed to give vacant possession. (6) Accordingly, the tribunal did not err in any way in its decision and the appeal was accordingly dismissed.
Appeal dismissed.

Court of Appeal
Aldous LJ, Hale LJ, Jonathan Parker LJ
Judgment date
15 June 2001
References

TL 15/6/2001 : [2001] EWCA Civ 991

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