[2024] UKUT 33 (LC)

Mr Rainey KC began his submissions by pointing out that, because the order of 22 February 2022 was not served on Southwark by the Tribunal (it obtained a copy from the Land Registry) the one month time limit in rule 54(3) for the making of an application to set aside had not begun to run and the application was not out of time. Mr Upton did not disagree, and I accept that Southwark does not require an extension of time to make its application. That does not mean that the time which elapsed between Southwark becoming aware that an order had been made, and the date of its application are of no importance, but it will only become relevant if, after considering the threshold conditions, I am satisfied that the Tribunal has a discretion to exercise.

On paper, the application to set aside the order had four separate strands, which Mr Rainey KC summarised as: non-service of the application on Southwark; that the Tribunal had been misled by the form of the application; that the order lacked coherence; and that because the order varied positive covenants it was outside the Tribunal’s jurisdiction under section 84.