This is an application by the proprietors of a large ‘double penthouse’ flat in a development of flats and offices in a converted warehouse for variation of a title condition so as to allow sub-division of their flat into two smaller penthouses. The objectors are representative of the other flat owners. The Tribunal has, applying Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the Act”), concluded that the variation sought is reasonable and should be granted.
The applicants are joint proprietors of Flat 17, 42 Speirs Wharf, Glasgow. Their application under Section 90 of the Act was opposed by more than 60 other proprietors of flats in the Speirs Wharf development, all of whom were benefited under a Deed of Conditions by Windex Limited registered on 15 November 1989. Condition Eighteenth provides inter alia:-
“None of the said dwellinghouses forming part of the said buildings shall at any time hereafter be subdivided … and each of the said dwellinghouses shall be used and occupied as a private residence for the use of one family only and for no other purpose in all time coming.”
Clauses Fifth, Sixth, Seventh and Eighth provide for the incidence of various common charges among the flats, and where appropriate offices, in the development, on the basis of one share per flat. The applicants sought variation, in the event of their application succeeding, of each of these conditions so as to make each of the two sub-divided flats liable for one share of the various charges. In their application, the applicants maintained that their property was “too large a scale for current trends” and “no longer in fashionable area of the city for this type of property”; they had been “unable to sell said property… To sell they would have to accept a price far less than the true worth of the property.” They had obtained planning permission for sub-division, and they were willing to compensate all the other proprietors by re-apportionment of the various common charges. The respondents contended that there had been no material change of circumstances; changes in the property market situation were irrelevant; Clause 18 was of benefit to the amenity of the development, and assessment of the reasonableness of the applicants’ proposal required to be made against the background of the comparatively short period since the Deed of Conditions was entered into – it had an important general purpose and the Tribunal should be slow to exercise its discretion in what would amount to the “thin end of the wedge”.
At the hearing the applicants were represented by Graeme Henderson, Advocate, instructed by Messrs Macdonalds, Solicitors, and the respondents jointly by Martin Richardson, Advocate, instructed by Messrs Murnin McCluskey, Solicitors. The applicants called the following witnesses:-
The respondents called the following witnesses:-
The parties each also lodged documentary productions. The Tribunal inspected the subjects.
Main v Lord Doune 1972 SLT (lands Tr.) 14
Murrayfield Ice Rink v SRU 1972 (lands Tr.) 20
Bolton v Aberdeen Corporation 1972 SLT (Lands Tr. )26
Lothian Regional Council v George Wimpey & Co. Ltd. 1985 SLT (Lands Tr.) 2
Biggerstaff v SSPCA & Others (unreported) 25 October 1990 (LTS/LO/1990/17
Miller Group v Gardner’s Exrs. 1992 SLT (Lands Tr.) 62
Ord v Mashford & Others (unreported) 10 March 2005 (LTS/LO/2004/16)
Church of Scotland General Trustees v James Crawford McLaren & Another unreported 16 March 2005 (LTS/LO/2004/17 and18
Alexandra Workwear plc v Lothian Regional Council 21 October 1992 (LTS/LO/1991/62)
George Wimpey East Scotland Ltd. v Fleming and Others 12 January 2005 (LTS/LO/2004/19)
There was little dispute on the basic facts, which the Tribunal found, on the basis of the oral and documentary evidence as well as its inspection, to be as follows:-
The development was created in around 1989 as a somewhat pioneering primarily residential development based on conversion of a group of former bonded warehouse buildings adjoining a leg of the Forth and Clyde Canal. The development primarily comprises some 176 1, 2 and 3 bedroom flats and offices. Although convenient for the centre of Glasgow, it is in a somewhat isolated industrial locality lacking in residential amenities. It contains a small residents’ leisure centre. The area is currently the subject of movement towards regeneration and increased residential and leisure development around the concept of restoring this leg of the canal to active leisure use and enjoyment, but it will be some years before this is achieved. Parking areas at the development are limited, as a consequence of which it is not possible to have individual allocated parking spaces. There are no parking restrictions apart from the fact that the area is owned communally and is therefore not public. Offices, with their workers and visitors, attract substantial traffic and parking requirements; and each flat occupier might own one, or more than one, car. During office hours through the week parking is difficult.
The Deed of Conditions is a modern deed of conditions entered into by the developer and registered as a burden in the title of each of the flats and offices. It proceeds on the basis that maintenance, etc. of the common parts of the building , common services and the amenity areas is organised by the property managers or factors appointed by and under the general direction of the proprietors in general meeting, with the charges apportioned according to whether they cover the estate, the individual block or the individual stair. Further, the expense of maintaining and running the leisure centre is shared among the proprietors regardless of actual use. Generally charges are apportioned on the basis of the same fraction for each property of whatever size. The Deed of Conditions also contains a number of prohibitions and restrictions, for example of sub-division, commercial use, external alterations, etc. of the flats, in the interests of maintaining the balance and amenity of the development as a whole. The immediate purpose of Condition Eighteenth is to prevent the creation of more, and smaller, flats, in line with the underlying purpose of preserving the concept of the development so as to protect its amenity and balance. The Deed does fulfil these objectives.
The applicants’ flat is an unusually large penthouse apartment, of approximately 4,500 square feet, created on two levels at the roof level of the development. Although formed when the development was created in 1989 it is at variance with rest of the development due to its size and overall scale, having been apparently specially created for the ownership and occupation of a director of the development company. The applicants are the fourth owners. During a previous ownership, the flat suffered a very serious electrical fire, reducing it to a shell, seriously damaging flats on the floor below and causing enormous water damage in the course of extinguishing it to some 40 flats below, which themselves also required to be vacated for several months for repair and refurbishment. The flat was thereafter on the market, as a repaired but un-fitted out shell, for many months before the applicants purchased it, in that state, in the summer of 2001 for £168,000. The applicants are each experienced and enthusiastic in interior design. They designed the internal layout and fitted it out to a reasonably high standard, at a cost in the region of £150,000 to £200,000. They themselves originally lived there, and moved in late in 2001. The flat now comprises some two large living areas, 5 bedrooms, 4 bathrooms, a patio/terrace, a small lean-to conservatory, kitchen and utility room, etc. The flat is characterised by original cast iron pillars; low, varying ceiling levels also incorporating beams; ‘coombed’ ceilings; and numerous velux windows. The communal lift has appropriate security arrangements which allows it to emerge inside the lower floor of the flat, and an internal spiral staircase leads to the upper floor, which is a pavilion-type structure enjoying all-round views of virtually the whole of Glasgow.
The applicants originally planned the penthouse as a home for themselves. In the later part of 2002, after they had completed the fit-out they concluded that the flat was too large for them and decided to sell the property. At that time the Glasgow property market was generally buoyant. They had the property marketed for sale for between three and four months. Being a highly unusual and substantial property, it attracted large feature advertisement articles. The ‘asking price’ was ‘Offers over £395,000’ but the applicants were seeking a substantially higher price and told one prospective purchaser who enquired whether a price of £475,000 would be acceptable that they would not accept a price below £500,000. In fact, they received no offers and no ‘noted interests’. They took the property off the sale market immediately prior to Christmas 2002, although they did make some effort during 2003 to let the property, also without success. They have not re-advertised the property or again offered it for sale. The property market generally has become more difficult. Penthouses apparently have something of a market of their own, but this is a very individual property even among penthouses. As a result of other more recent developments, some of which are in more attractive locations, there is presently an over-supply of penthouse-type properties in the Glasgow area. The present isolated situation of the Speirs Wharf development and absence nearby of facilities such as restaurants and pubs plus the lack of dedicated parking make the property less attractive in this market. Further, there is a degree of uncertainty about future flatted development in the close vicinity, particularly at a site directly on the other side of the canal. Depending on what is finally built, that development could affect the marketability of all the Speirs Wharf flats, although it may ultimately have the positive effect of attracting more leisure and catering outlets.
The applicants now propose to build a new sub-dividing internal wall across the lower floor, creating two flats, one of which would retain the spiral staircase and the upper floor. The internal lift access would then give access to a lobby, off which the entrance doors to each flat would be situated. No external alteration would be involved. The conversion would create two 3-bedroom flats, of some 2200 and 2400 square feet. By comparison, there are two other penthouse flats at the development, each of around 2000 square feet; the 2-bedroom flats are around 1100 to 1200 square feet; and the one-bedroom flats are around 600 to 650 square feet. Planning permission, Listed Building Consent and building warrants for such sub-division, which will cost in the region of £50,000, have been obtained. The proposed sub-division would have no material impact on parking problems at the development. On the basis that each new flat took a ‘full’ share of the common charges, there would be some marginal reduction of the common charges payable by the other proprietors, more so in the same block and stair. The cost of any necessary alteration to common facilities, for example lift controls, would require to be borne by the applicants.
Reasonable current open market valuations are approximately as follows:-
| Subjects in current condition – | £475,000 |
| Proposed top floor flat – | £275,000 |
| Proposed top and attic floor flat – | £295,000 |
There is, however, uncertainty as to how long either the present flat, or the sub-divided flats, might take to sell.
In February 2005, the Residents’ Committee unanimously agreed to oppose this application and encourage the flat proprietors to add their names to the list of objectors. In a letter circulated to proprietors, they cited possible effects. Large flats could, it was said, in theory be sub-divided into, for example one-bedroom flats reducing average values; the infrastructure, and parking in particular, would be affected, with one additional flat potentially meaning two more vehicles; there could be an increase in running costs due to added use of lifts and greater use of the leisure centre; and the reconstruction works would cause mess and disturbance and extra common repairs. Reference was also made to the precedent which could be caused if one proprietor was given permission to vary the Deed of Conditions. The Committee has kept proprietors informed and the present level of individual proprietors maintaining objections, although only a minority of proprietors, is substantial and representative of the body of proprietors. In August 2005, the Committee met with the second applicant. By this stage, the Committee’s position was that they were not concerned about the splitting of the penthouse as such, but remained very concerned about any alteration to the Deed of Conditions resulting in further alterations which could make the management extremely difficult. A suggestion was made that some form of guarantee that a precedent would not be set might be considered but came to nothing.
For the applicants, Mr Henderson addressed the Tribunal on the form of the order sought (a matter on which the respondents, while not agreeing, made no submission); the material facts; the respondents’ approach; and the factors under section 100 of the Act. On the facts, he emphasised that the flat was not representative of the rest of the development, or indeed of many flats at all in Scotland. There had been a market for it until about the mid-1990s, but when the applicants advertised it extensively the only expression of interest was from purchasers who would apparently intend either to subdivide or engage in multiple occupation. The surveyors’ evidence was that there would be a purchaser out there but that it may prove difficult to sell. No serious case had been made out that the proposed sub-division would have any catastrophic effect, and, if anything, sub-division into two might remove an anomaly in the development. As to the respondents’ ‘thin end of the wedge’ argument, the case was not like situations in which one of a number of houses of equal size sought to sub-divide. The Tribunal had previously on occasions expressed themselves sympathetic to the scheme of title conditions but on the facts found no reasonable concern that variation would open the floodgates, e.g. Alexandra Workwear plc v Lothian Regional Council, at page 18.
Turning to the list, in Section 100 of the Act, of factors to which the Tribunal had to have regard, Mr Henderson looked first at (f), the purpose of the title condition. If the purpose was to protect the diversity of the development, clearly there was a variety of properties, but this penthouse was away outside the norm and its creation was really outwith the scheme to be protected. It was simply an anomaly. Under (a), Mr Henderson argued that there had been a change in the character of the burdened property, arising out of other more recent developments bringing about an appreciable number of penthouses. On (b) – degree of benefit to the benefited proprietors – Mr Henderson suggested that, because of the charging system, this flat was out of step with the scheme, being in a sense subsidised by other proprietors: sub-division would bring it more into line with all the other flats. On (c), the condition did impede enjoyment of the burdened property. On (e), while the condition was created relatively recently, this was of less significance in a city as opposed to a rural setting. On (g), the planning consent was of some significance, because it was known what was proposed, not merely something in the abstract. There would be no change in the aesthetics of the building. On (h), there was admittedly no offer of compensation beyond that involved in the doubling of contributions from this property (a matter which, if not relevant under this head, could be relevant under (j), any other material factor), but there was no suggestion that the value of other properties would be affected.
For the respondents, Mr Richardson first stressed his overall submission that the applicants had overlooked the fact that the onus was on them. They had to show the reasonableness of the variation, and had failed to do so when they had been unable to demonstrate any relevant change or any impediment in their enjoyment of the property, the factors they had sought to rely on, and when there was a real benefit to the other proprietors in protecting the amenity of the whole of the development.
Mr Richardson too looked first at the purpose of the condition, seeking to distinguish its purpose from consequential benefits. The general purpose, he said, was to preserve the amenity of the development by preventing the creation of additional flats. No exception had been made for the penthouse, and there was no basis for suggesting that the penthouse owners could say that it did not apply to them: the Deed of Conditions envisaged the applicants’ property in its present form. Mr Donald had referred to implementing the developer’s concept of creating amenity and giving mutually enforceable protection, and Mr Mullen and Mr Murphy had spoken of the importance of this to the management of the development. On factor (a), Mr Richardson submitted that the attempt to show a change in the character of the burdened property was simply an attempt to dress up the suggestion that the market had changed. There was, in any event, no relevant change: the property created a market of its own, and if there was any change it was merely transient. On (b), there was both specific benefit, albeit marginal, in relation to car parking, and the general benefit of certainty which was the focus of the respondents’ concern. Both surveyor witnesses as well as Mr Mullen had spoken of the need for a deed of conditions, particularly at a development like this. There were potential difficulties in future management and these would be exacerbated if one owner could vary the conditions. Mr Richardson rehearsed the evidence about this benefit. Variation would disturb the status quo, and it was notable that more than 60 proprietors were maintaining objections. The possibility that this would be the “thin end of the wedge” could not be discounted.
On (c), Mr Richardson suggested, without elaborating, that ‘enjoyment’ in the 2003 Act might be narrower than “reasonable use” in Section 1(3)(c) of the 1970 Act. The applicants had not made out that the large scale of the property was an impediment – these properties were not family properties, and Ms Regan had made no mention of running costs. They had not made out the case that the flat was unsaleable in its present form, and if it was merely difficult to sell, the evidence that the difficulty lay in the size, as opposed to the location, or the parking problems, was at best unclear. As to lettability, the applicants had failed to show any relationship between any letting difficulties and the title condition. On (e), the period since the condition was imposed was comparatively short, and there had been no change to the neighbourhood. Mr Richardson discounted the suggestion that car parking was a lacuna in the Deed of Conditions. At least, this factor did not favour the applicant. On (g), Mr Richardson doubted whether sub-division was a “use”, and also pointed out that the drawings submitted to the planning authority had not been produced to the Tribunal. In any event, this case raised no questions of public interest – c.f. Ord v Mashford, at page 15. On (h), the proposed changes in the common charges, being prospective, did not amount to compensation for any effect on value, but the respondents did not seek compensation: rather, they were concerned about any alteration in the status quo. It was not accepted that there was any benefit from the re-allocation of charges, but if there was it was at best very marginal. Sub-division would remove a unique property from the development.
It is useful to start by recording two general views which the Tribunal has in this case. Firstly, we are clear that this is a unique property, very much a ‘one-off’ as far as this development is concerned. It appears to be uniquely large for a flat, at least in Glasgow. Two very experienced valuation surveyors each told us that they had never previously encountered a flat of this size. The decision to create a flat so much bigger than anything else in the development does not appear to us to have had anything to do with the general concept of the development it being more correctly seen as a personal whim of the original developer.
Secondly, we are, for a number of reasons, unimpressed with the applicants’ case in so far as it related to their lack of success in selling the property. While it is true that they marketed the property extensively for a few months and did not attract a purchaser, we are not persuaded that this flat could not be sold because of its size. It is a unique property for which there will only be the very occasional potential purchaser, so might take some time to sell. In addition, there is a suggestion in the evidence that the applicants may have been holding out for a particular price which may or may not have been excessive at the time. Further, it is by no means self-evident to us that size alone was the problem. This is a unique development, in a converted warehouse at an unusual location, in addition to which it is not possible to offer dedicated parking. The interior is to an extent constrained by the limitations of the existing structure. On the evidence, these factors, either individually or in concert, might well make any luxury penthouse property difficult to sell. Marketing difficulties are not necessarily evidence of a problem related to a particular restrictive title condition.
The applicants having based their case very substantially on the difficulty in selling, it is not surprising that Mr Richardson laid stress in his submissions on the matter of onus. It is necessary, therefore, to consider the correct approach to onus in cases of this nature. We adopt the general observations of the Tribunal in Ord v Mashford and Others with regard to the approach to weighing up the relevant factors set out in Section 100 of the 2003 Act. It is not a case of considering separately under each head whether the application succeeds or fails, but rather of asking the overall question as to reasonableness. It follows that a failure by applicants to establish one particular matter, even if heavily relied on, is not necessarily fatal: the Tribunal has to address the overall question, while having regard, as Section 100 requires, to the position regarding a number of factors. It is on that overall question that the onus of persuading the Tribunal, on a balance of probabilities, lies. These things said, it is of course correct that, in an opposed case, we should only grant the application if we are satisfied of its reasonableness, and we would add to that that we do consider it relevant in this case that the opposition can be said to be representative of the other proprietors and has the support, which deserves weight, of Mr Murphy, an experienced property manager.
Turning to the factors in Section 100, we again refer to the general observations in Ord, in relation to purpose. At page 14, the Tribunal explained the significance of the purpose of the title condition, if that can be identified. It influences the assessment of other factors, such as change of circumstances, benefit, impediment and period of time since the condition was created. Weighing the impact of the particular variation or discharge sought is greatly assisted by consideration of the discernible purpose or intention behind the condition.
The narrow contractual intention, however, is not the same as the purpose. The contractual intention provides a necessary starting point in identifying the purpose, but the issue in applications to discharge or vary title conditions, i.e. to depart from a contractual provision, is clearly wider. We mention this because Mr Richardson took issue with the suggestion that prohibition of sub-division of this penthouse was outwith the general purpose. As a matter of contractual construction, that is correct: the condition plainly applies to this property. It is nevertheless legitimate in an enquiry of this sort to identify, from the evidence, the underlying purpose of the prohibition.
The immediate purpose of the condition with which we are concerned is to prevent the creation of more, and smaller, flats. The evidence was clear enough that there are underlying purposes of preserving the concept of the development, maintaining the balance of the development and preventing, literally, multiple occupation, so as to protect the amenity of the development. It can also be said that this condition is part of a framework of mutually enforceable conditions which is undoubtedly necessary in the interests of ongoing management of the development. (This latter consideration, so heavily relied on by the respondents, arguably does not fall under (f), which relates to the purpose of the title condition which is in issue, but is a factor which the Tribunal does consider relevant for consideration.) It does not, however, follow in what is very much a ‘one off’ situation that breaching the immediate purpose in a particular case will disturb the underlying purposes.
Turning to the other factors in Section 100, we do not think that there is any change in the character of either the benefited properties or the burdened property. We note that despite the fire having necessitated complete refurbishment of this property, there was no evidence of any resulting change in its character following refurbishment. It is also clear that there has not (yet) been any change in the character of the neighbourhood of the properties. The very substantial civil engineering works presently going on beside the development, in connection with extension of the canal, were not relied on. We do not consider market conditions which, as Mr Richardson pointed out, are by nature transient, amount in themselves to relevant changes in circumstances, and in any event, as indicated above, we are by no means sure that the difficulty which the applicants experienced in their attempts to sell was related to the prohibition of sub-division. There is one change since the condition was created, viz. the increase in the number of penthouses in the Glasgow area, but, again, we do not consider this to carry any weight.
As far as benefit to the benefited properties is concerned, we are clear that while the condition in general does confer important benefit, its application to the subjects does not. Any direct benefit, such as restricting the numbers of residents wishing to park or to use the leisure centre, is, we think, negligible. Two flats in place of the present double penthouse might produce more residents with cars. On the other hand, the present property is so large that it may well be used for numerous guests and visitors with parking requirements. As far as the more indirect benefit of preserving the balance and character of the development is concerned, we do not think that insistence on application of the condition to this flat makes any positive difference: it might even be thought slightly detrimental to the balance. The suggestion that sub-division of this flat would increase communal costs, for example in maintenance of the lift, seems to us to be without foundation.
On the other hand, we are clear that the condition does substantially impede the enjoyment of the burdened property. Whether or not sub-division would improve marketability, or even be desirable, is not the point here. Plainly, the property is so large that, absent this condition, its owners might, we think perfectly reasonably, consider sub-dividing, to which there is no planning objection. Maintenance of the condition prevents them from doing so.
The condition was created some 16 years ago, a relatively short period within which it is not possible to discern any change which affects its purpose. However, the Act does envisage the possibility of much shorter periods, and although Section 92 gives teeth to provisions regarding early application for discharge, this is only up to five years. The principal relevance of the relative shortness of the period would appear to be in relation to the ‘floodgates’ argument, which we consider below.
There is planning consent, and we do not think that the absence of the specific plans approved is of much significance in this case. That consent indicates reasonableness from a public point of view, but this is of little relevance when the objectors’ main concern revolves around maintaining the deed of conditions intact.
We do not consider that the applicants are ‘willing to pay compensation’, because the offered alteration of the common charge liabilities is not an offer to pay compensation. Again, however, there is no suggestion of any financial loss or disadvantage which the respondents would suffer. This factor is neutral.
That alteration in the common charges liabilities might be considered material under factor (j), but we rather take the view that it is such an obviously appropriate adjustment to make if this flat is sub-divided that, again, it is neutral.
The other factor at which we have looked carefully for its materiality is the undoubted concern which the respondents have about preserving the deed of conditions. We appreciate and acknowledge the importance of the deed of conditions where there are so many proprietors at this particular development. The residents and the factor need to know that the deed of conditions can be relied upon and will be upheld. The narrower aspect of this is on the specific issue of sub-division. Here, we are completely clear that allowing sub-division of this property should not be seen as any form of precedent. It may sometimes be a legitimate concern that the character and amenity of a housing scheme is threatened when an owner becomes the first to apply to sub-divide, extend, etc., because of the prospect that others may follow, but in this case the unique nature, and in particular size, of this property makes it impossible to suggest that there are any other comparable properties. If the marketability problem were given weight as a reason to permit this application, there might be concern that others could deploy similar arguments. In fact, as it seems to us, it is the exceptional and unique size of this property which makes sub-division so understandable. This factor simply does not apply to any other property in the development.
More generally, the respondents, again understandably and genuinely, are concerned simply about any breach of the conditions. Here again, however, we do not think there is any cause for concern, and indeed we think we must consider this application on its own circumstances. We do not consider that the integrity of the property management arrangements would be threatened in any way by allowing this application. The possibility of other proprietors seeking variations cannot of course be ruled out. Nor can the possibility of the factor or the Committee at some stage in the future considering that some change might be required in the interests of all the proprietors. In any such situation, we do not think the outcome – either way – of this application about this very unusual property would be of any significance.
Our conclusion, having considered the statutory and other relevant factors, is that, although there has been no material change of circumstances and we are unimpressed by the evidence of difficulty in selling, we find that sub-division of this flat is an entirely reasonable use of it and that to allow it, along with the corresponding revision of the common charges, will have no significant impact on the body of proprietors, nor will it open the floodgates or otherwise disturb the integrity of the management system. We have decided that it is reasonable to grant the application.
Accordingly, the Tribunal has ordered variation of Clause 18 of the Deed of Conditions to the extent only of permitting this proposed sub-division of these subjects; and also so as to set out the varied fractions of the various charges payable by the proprietors on the basis that the proprietor of each of the sub-divided flats at Flat 17, 42 Speirs Wharf (which will become Flats 17 and 18), will pay one share in accordance with the Deed’s provisions. The latter provisions will take effect on completion of the sub-division.
Mr Henderson and Mr Richardson each made some submissions on expenses, particularly on the matter of a postponement of one day in the start of this hearing at the request of the respondents. (The hearing was still concluded within the days allocated). It is helpful to have had these submissions, which the Tribunal has noted. We propose, however, to follow our usual course of inviting (any further) written submissions on the whole matter of expenses and, unless parties otherwise request, deal with these on the basis of the written submissions.
| Representation: | ||
|---|---|---|
| for the applicants: | Mr G M Henderson, Advocate, instructed by Messrs Macdonalds, Solicitors, Glasgow | |
| for the respondents: | Mr M Richardson, Advocate, instructed by Messrs Murnin McCluskey, Solicitors | |
| Heard: | Edinburgh, 15–17 November 2005 | |
| Sitting: | J N Wright, QC K M Barclay, FRICS |
|
| Decision issued: | 17 February 2006 | |
LTS/TC/2005/01
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 17 February 2006
Neil M Tainsh — Clerk to the Tribunal