Case No. UKUT-62-(LC)

25.This issue must be regarded as settled at this level by the decision of the Tribunal (Sir Timothy Fancourt, President) in Avon Ground Rents Ltd v Canary Gateway (Block A) RTM Co Ltd [2020] UKUT 358 (LC), to which unfortunately the FTT was not referred. 26.In that case the Tribunal decided that the effect of non-service of notices of invitation to participate on all those qualifying tenants who were required by section 78(1) to be served was prescribed by section 79(2) and was that a claim notice may not be given. That had been the Tribunal’s conclusion in Triplerose Ltd v Mill House RTM Co Ltd [2016] UKUT 80 (LC), which had been referred to by the Court of Appeal in Elim Court without disapproval. There was no inconsistency between that conclusion and the approach to validity taken in Elim Court, in which Lewison LJ had explained, at [52], that in cases concerning the acquisition of rights over property (including the right to manage) the intention of Parliament “as to the consequences of non-compliance with the statutory procedure (where not expressly stated in the statute) is to be ascertained in the context of the statutory scheme as a whole” (emphasis added). As the President’s analysis in Canary Gateway at [80] to [90] explains, section 79(2) is an express statement of the consequence of non-compliance with the requirement to serve notices of invitation on all qualifying tenants who are not already members. It is therefore unnecessary to consider the statutory scheme as a whole to ascertain whether Parliament intended non-compliance with section 78(1) to have the effect that the notice of claim was wholly valid or wholly invalid. Parliament has said expressly that a notice of claim may not be served where section 78(1) has not been complied with. 27.When this binding authority was pointed out to the FTT in Mr Letman’s grounds of appeal it did not take the opportunity, as it would have been entitled to do, to review its decision and having identified the incompatibility of its decision with the Tribunal’s in Canary Gateway, to have set it aside and remade it, substituting a determination that the right to manage had not been acquired. Instead, it granted permission to appeal. But in view of the Tribunal’s decisions in Triplerose and in Canary Gateway there is no more that can be said on the issue at this level, and Mr Joiner was understandably unable to advance any new argument which pointed to a different outcome.28.The appeal must therefore be allowed for the reasons given in Canary Gateway. The FTT’s conclusion that notices inviting participation were not served on the qualifying tenants of flats 30 and 154 is sufficient to settle the issue, without the need to consider the rather different case of flat 121, where notice was served on only one of two joint tenants. The parties did not include a copy of the notice which was a served at flat 121 in the appeal documents and, without seeing it, I am not prepared to reach any conclusion on its effect.