[2024] UKUT 335 (LC)

The landscape has been changed so radically by A1 (Sunderland) that I need say very little about the parties’ arguments at the hearing before moving on to consider the implications of A1 (Sunderland) for what the Tribunal now has to decide. As I said above, the argument for the appellant at the hearing was that the outcome of this aspect is determined by the fact that section 79(2) sets out the consequences of failure to give all the qualifying tenants a notice of invitation to participate, as the Tribunal held in Canary Gateway. There is no discretion. And the position is perfectly workable; people tend to know who is living in their block and it should not be difficult to give notice to all the qualifying tenants.

For the respondent, Mr Jacob did not really press his suggestion that Canary Gateway could be distinguished on the basis that in the present case the RTM company did not know about Ms O’Connor, in light of the revelation that in fact she was known to one of the directors. But he suggested – more with a view to a further appeal than in the expectation of persuading the Tribunal – that Canary Gateway was wrongly decided. “Parliament cannot have intended that a failure to serve one qualifying tenant, whose interest was not yet registered, and who gave written consent to become a member of the RTM company before the acquisition date would invalidate the claim to acquire the right to manage.”

I pause to observe that that strikes a note very much in tune with what the Supreme Court said in A1 (Sunderland) at its paragraph 92.