Leasehold enfranchisement — Leasehold Reform, Housing and Urban Development Act 1993 — Building — Non-residential (business) element — Whether non-residential element exceeding 25% — Whether non-residential areas and common parts can be aggregated for purposes of 25% proportion — Categorisation of converted areas
The defendant landlord owned two adjoining buildings (nos 12 and 14) that consisted of lower- and upper-ground floors and three upper floors. Outside and to the front, under the pavement, were open coal vaults. In 1981, the lower floors were converted into offices, and the upper floors into flats. Each of the upper floors contained a single flat that ran across the width of both buildings, the original party wall having been breached to provide for this. The coal vaults at the front of no 12 were radically altered and incorporated into no 12. The residential tenants served a collective notice of enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. In proceedings to determine the validity of that claim, the landlord contended that no enfranchisement was possible where the aggregation of the non-residential parts of the buildings and the common parts together exceeded 25% of the internal area of the building, which they did. In any event, he disputed the proper categorisation of certain areas. The disputed areas included the coal vaults in front of no 14, an open-fronted conservatory, the original party wall, part of the staircases, some dry linings in one room, ashlars within the mansard roof, and a meter cupboard.
Held: The claim was allowed. The tenants were entitled to enfranchise because the non-residential proportion was 24.11126%. Section 4(1)(a) of the 1993 Act does not aggregate common parts and non-residential uses together for the purpose of the 25% proportion. In carrying out the proportion exercise under section 4, the area of the common parts is first deducted from the total gross internal area of a building, with the balance representing the aggregate of the residential and non-residential areas. The 25% non-residential proportion is then applied to this aggregate. It is only if the non-residential proportion of the aggregate exceeds 25% that the premises cannot be enfranchised. The coal vaults in front of no 14 did not, and never had, physically formed part of the subject building. The conservatory did not form part of the building but, if it had, it would be in residential use. The burden of proof fell upon the landlord, and he was not able to prove that the original party wall between nos 12 and 14 on the three upper floors constituted a common part. The dry linings formed part of the room as constructed. The ashlars were temporary constructions to support radiators and were not to be regarded as part of the permanent construction of the relevant rooms. The meter cupboard was subsumed under the common parts.
The following case is referred to in this report.
Britton v Estmanco unreported 12 October 2001
Smirk v Lyndale Developments Ltd [1975] Ch 317; [1975] 2 WLR 495; [1975] 1 All ER 690; (1974) 29 P&CR 407; [1975] 2 EGLR 43; 235 EG 751, CA; [1974] 3 WLR 91; [1974] 2 All ER 8; [1973] 28 P&CR 142
This was the hearing of a claim by the claimant nominee purchaser, Indiana Investments Ltd, as to the validity of a notice of collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993, against the defendant landlord, Mr DouglasTaylor.
Anthony Radevsky (instructed by Summers) appeared for the claimant; Michael Templeman (instructed by Robbins Olivey, of Woking) represented the defendant.
Giving judgment,
Preliminary
[1] This is a claim for collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993 (the Act). It concerns some converted premises known as 12/14 Bristol Gardens, London W9. Most of the usual problems that arise in such cases (for example, the form and contents of notices) are happily absent. However, what is in dispute is whether the non-residential part of the premises exceeds 25%. If it does, no enfranchisement is possible. This resolves into two issues, namely whether: (i) on the true construction of the Act, the claimant’s case is sustainable at all; and (ii) nevertheless, assuming the claimant’s construction to be right, the proper resolution of a number of detailed disputes as to individual areas results in the 25% limit being exceeded, and the claim to enfranchise therefore failing on the facts.
Building and its relevant history
[2] Bristol Gardens is in the Maida Vale/Little Venice area of north-west London. The relevant part of the street appears to have been built at some time in the mid-19th century and, historically, the ground-floor premises were mostly retail units with shop windows. That appearance has been maintained, despite the conversion of many of the ground floors (including those in the subject premises) to different uses in modern times. The building was the subject of an extensive conversion by the present owner, the defendant, Mr Douglas Taylor, in the period in and following 1981, undertaken in association with his business associate, Mr Bernd Schulze. In particular, the following features are to be noted:
(a) As constructed, the buildings were separated from the pavement by an open area, and the access to the front doors was by way of bridges over this area.
(b) Under the pavements, and separated from each building by the area, were (as constructed) open-fronted coal vaults, accessed from outside, for coal delivery, by (one would assume) plates in the pavements. The vaults in front of no 12 have been radically converted (since the original conversion) and incorporated into no 12. The vaults in front of no 14 have not been so dealt with, and their significance and status are controversial in the present case.
(c) The upper- and lower-ground floors of no 12 were converted into offices, and, in 1982, let to Mr Schulze on a 99-year lease (later increased to 125 years from 24 June 1981).
(d) In no 14, the upper-ground-floor front and the lower-ground floor were used for business purposes, and there was a flat (flat 1) and a garden to the rear. The business area on the upper-ground floor was connected to the offices in no 14 by a doorway. In 1994, the whole of this was let to Mr Peter Burgess, who is the prime mover in the claimant company, with a covenant not to carry on business except in the upper- and lower-ground-floor units.
(e) On the three upper floors, the buildings have been converted in such a way that on each floor there is a flat (flats 2, 3 and 4) that runs laterally across the width of both buildings.
(f) The upper flats are accessed by a door at the right-hand side of no 12 (as viewed from the street) that leads into a hall with a staircase that goes the height of the building. Beneath this staircase is a staircase that connected the upper- and lower-ground floors of no 12.
(g) In 2002, Mr Schulze granted an underlease of the upper- and lower-ground floors (the office accommodation) of no 14 for three years from 1 November 2001.
Events leading to the present proceedings
[3] (a) The tenants’ section 13 notice was served on 20 March 2003, and the landlord’s counternotice was served on 17 May 2003.
(b) On 5 August 2003, Mr Burgess obtained planning permission for the residential use of the upper-ground-floor shop area at no 12. On 20 October, he also obtained building regulation authorisation for this. |page:64| There has been something of a battle over this ever since. The landlord, through his agent, Mr Jeremy Tonge, has been astute to point out that the communicating door with no 14 (see above) has been blocked up, and that there is, therefore, a building regulation issue as to whether the shop area can be used for residential purposes or whether it needs to be treated as a fire exit. Some later correspondence on this issue arrived in the course of the hearing. For reasons to which I will come, it ultimately became common ground that none of this actually mattered.
Legal issue
[4] On behalf of the landlord, Mr Michael Templeman argued that, on the true construction of section 4 of the Act, premises are not capable of enfranchisement where the combined area of (i) the non-residential parts and (ii) the common parts exceeds 25% of the internal floor area of the building, as defined by section 4(3). Mr Anthony Radevsky, for the claimant, said that this was completely wrong: what the Act requires the surveyors to do is to compare non-residential with residential, disregarding the common parts throughout the calculation. Having heard the argument, I will say at once that, in my judgment, Mr Radevsky is right. Indeed, I think unarguably so, and although Mr Templeman has argued that the view is taken that there is an ambiguity in the section, I, for my part, can see none.
It is necessary, first, to look at the relevant parts of the section thus:
(1) Section 4(1) provides that Chapter I (collective enfranchisement) does not apply if:
(a) any part or parts of the premises is or are neither –
(i) occupied, or intended to be occupied, for residential purposes, nor
(ii) comprised in any common parts of the premises: and
(b) the internal floor area of that part or of those parts (taken together) exceeds 25 per cent of the internal floor area of the premises (taken as a whole).
(2) Subsection (2) deems certain user to be residential and does not advance either argument.
(3) Subsection (3) says:
For the purpose of determining the internal floor area of a building or of any part of a building, the floor or floors of the building or part shall be taken to extend (without interruption) throughout the whole of the interior of the building or part, except that the area of any common parts of the building or part shall be disregarded.
Mr Templeman’s argument, as I understand it from his skeleton argument and submission, is that:
(a) it is really a matter of first impression;
(b) the combined area of the section 4(1)(a) parts is to be divided by (sic – it should be the other way round) the section 4(3) internal area, that is, the internal area disregarding the common parts. If that calculation exceeds 25%, no enfranchisement;
(c) section 4(1)(a) comprises one single entity, viz all those parts there mentioned, non-residential parts and common parts, that are to be treated as one entity when making the relevant calculation;
(d) section 4(1)(a) and (b) are crystal clear. No distinction is made between non-residential and common parts; they are to be treated in the same way;
(e) so, no enfranchisement where the combined area of non-residential and common parts together exceeds 25% of the internal floor area, as defined by section 4(3);
(f) when common parts are to be disregarded, subsection (3) makes it clear.
In my judgment, this is wrong for the following reasons:
(1) it is a complete misconstruction of how section 4(1)(a) works; thus
(2) it presupposes that section 4(1)(a) aggregates common parts and parts that are neither residential nor common (I will call the latter “business”, for ease of expression, although they may not be exclusively business); but
(3) section 4(1)(a) does not do this. How it works is very simple: its object, clearly expressed in its words, is not to aggregate anything but to identify “business”, and it does so by asking two questions: (i) is it residential?; and (ii) is it common? If the answer to both questions is “no”, it is what I have called, for want of a better term, “business”. The words “neither/nor”, which are disjunctive, are there to identify the two separate tests;
(4) it is “business”, that is, that which is neither residential nor common that is then compared in area with the total internal floor area, however;
(5) under section 4(3), the internal floor area for the
purposes of the calculation is defined as excluding common parts. (In actual fact, because of section 4(3), the relevant internal area is the aggregate of business and residential);
(6) the reason why the double question is asked in section 4(1)(a) is, to my mind, quite obvious when one looks at the ultimate scheme. Residential parts need to be clearly identified because they form part of one side of the ratio. Common parts need to be identified because they have to be excluded from the calculation. Business requires to be identified because it needs, in effect, to be aggregated with residential to form the one side of the ratio and has to stand alone to form the other side of the ratio.
To my mind, this analysis not only gives effect fully and properly to the words of the section but also creates a logical scheme. What is intended to be done is to arrive at the ratio that business bears to residential, even though it is not expressed in those terms. For this purpose, common parts that are neither business nor residential are treated as irrelevant in two ways: (i) as not being part of the definition of either business or residential, and therefore not part of the “part” that is compared with the “whole”; and (ii) as not being comprised in the “whole” with which the “part” is compared. In short, you leave it out of both sides of the calculation so that, in reality, what is compared is business: aggregate of business and residential.
To do what Mr Templeman suggested and aggregate business plus residential so as to produce a ratio of business plus common: total area minus common serves no identifiable logical purpose.
I agree with Mr Radevsky’s comment that this is neither what the Act says nor what parliament intended.
There is no authority directly on the point. Most of the leading textbooks support the view that I have formed. One textbook suggests that there is an ambiguity, but I cannot see one. In Britton v Estmanco Ltd unreported 12 October 2001, a decision of Judge Michael Dean QC, sitting in this court, an approach similar to mine was adopted, although I am not sure how fully the point was argued. In my judgment, contrary to Mr Templeman’s submission, that case was correctly decided.
Disputed areas
Legal and professional framework
[5] (a) As is apparent from what I have already quoted, the approach is to take the premises as a whole, but to disregard the common parts. In seeking to arrive at what are common parts, section 101(1) of the Act defines “Common Parts” in relation to a building, or part of a building, as including “structure and exterior of that building or part and any common facilities within it”. It must, I think, as Mr Radevsky submitted, include party walls.
(b) Both sides instructed surveyors, who prepared reports. Their measurements, as measurements, agree. However, there are areas upon which they differ in principle. In particular also, Mr Tonge, the surveyor for the landlord, relied upon the Royal Institution of Chartered Surveyors (RICS) Code of measuring practice (2nd ed). No doubt, to a point, this is helpful, but, as Mr Radevsky pointed out, it is not incorporated by reference in the Act and, given that the Act defines common parts and the code does not, it has to be applied with circumspection. I will consider any issues that arise out of the code as and when they occur.
(c) As Mr Templeman pertinently observed, the provisions of the Act are no doubt aimed primarily at purpose-built blocks. Conversion such as the present, especially if they include archaic features such as coal vaults, are not particularly easy subject matter, and the answers are not always particularly obvious. |page:65|
Expert evidence
[6] The claimant called an expert surveyor, Mr Mark Blooman. The defendant called another expert surveyor, Mr Tonge. Both gave evidence before me, although inevitably, in the disputed areas, their approaches differed. Mr Radevsky asked me to prefer Mr Blooman, if for no other reason than on the basis that Mr Tonge was not an objective expert. This arose because Mr Tonge had quite obviously adopted a partisan approach as the landlord’s agent in respect of the dispute over the building regulations (see above). It is of course very common for landlords and tenants in these kinds of disputes to call their “regular” surveyor or agent as an expert. But regard must be had to the need under modern practice for the expert to be the court’s man and not a party’s man. If the proposed expert is too closely involved with his or her “side’s” affairs and contentions, another expert ought to be found. I expressed myself firmly to Mr Tonge in the course of the proceedings, and I am sure that he now has the point. Although he, I think, is naturally somebody given to expressing his view in rather confident terms, I did not find him unhelpful and I would not simply reject what he said or, simply for that reason, prefer Mr Blooman.
Preliminary
[7] (a) I was able to hold a site inspection, so some of what I shall say will be based upon my own observations as well as upon what the parties told me.
(b) Many of the disputed areas were comparatively small and, in some cases, not wholly easy to evaluate. But it is important to have regard to each because some combinations of conclusion would render the margins fairly narrow.
(c) A bundle of plans was produced that identified clearly each disputed area. I will refer to the areas by the numbers that they bear on those plans.
(d) I accept Mr Radevsky’s general submission that the onus to prove that the building is not within the Act must fall on the landlord; section 3 gives a general right and section 4 provides an exception. It must surely be for the landlord to prove the exception.
Individual areas
Disputed area 1
[8] This can be dealt with swiftly because, in the event, the parties agree that it is to be treated as residential. It is the old shop area of flat 1. The landlord had hoped to be able, not least by the representations made on his behalf as regards the building regulations, to show that the tenant could not say that this part of the premises is intended to be occupied for residential purposes. It is now accepted that whatever difficulties may lie in the tenant’s way, they are not such as could negate that intention. Had this area not been residential, the application could not have proceeded further, because of the size of the area involved.
Disputed area 2
[9] These are the coal vaults in front of no 14. As I have briefly indicated earlier in this judgment, the two sets of coal vaults have been dealt with separately . Those in front of no 12 have been radically altered and connected with the lower-ground floor of no 12. If you walk in there, they are, to all intents and purposes, part of one continuous structure and are occupied with the lower-ground floor. In my judgment, they would plainly both be added to the demise by way of encroachment (see, for example, Smirk v Lyndale Developments Ltd [1975] Ch 317*), as well as being now in fairly obvious terms part of the “the building” for the purposes of the Act (both surveyors agree about this). Physically, the vaults in front of no 14 are quite different. There are three of them. The one nearest to no 12 is now, it would appear, completely sealed. There is some contentious, but not very conclusive, evidence suggesting that, at one time, there was some sort of aperture open between this vault and those of no 12. I preferred the evidence of Mr Platt (a contractor hired by Mr Burgess in 1994) that an experimental opening was made into this vault with the possibility of linking the vaults, but it was decided not to proceed because of the state of the vaults, and the hole was resealed. Mr Platt cannot of course speak as to what has happened since, but his reasons for nobody seeking to open the vault again seemed to me quite compelling. The other two vaults are open-sided and although some evidence suggests that, from time to time, rubbish has been dumped in them on a sporadic basis, there is nothing that suggests that they have been at any time physically joined to, or practically enjoyed with, the rest of the premises. The open vaults are excessively damp (that is why they were not developed) and one cannot stand up in them.
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* Editor’s note: Also reported at [1975] 2 EGLR 43
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In my judgment, there is no imperative to treat both sets of vaults in the same way. The no 12 vaults have quite obviously been incorporated into the building as a result of what has been done. If the no 14 vaults had not been part of the building already, nothing has been done that would change that status.
The important issue is whether the vaults are to be regarded as part of the building (and not as common parts) for the purposes of the section 4(1) calculation. It is to be noted, of course, that although I have used “business” as a useful shorthand for the parts of the building that are neither residential nor common, the status of the relevant part only has to be that it is neither residential nor common, so that a part of the building that is not actually used can form part of the calculation even though it is not used for business. Accordingly, if the no 14 vaults are properly part of the building, even if they are used for nothing, they form part of the “business” side of the calculation.
A number of factual matters now need to be considered.
(a) The vaults are inaccessible by conventional means from any part of the building. Although the sealed vault abuts the storeroom that extends out into the area, there is no communication between the two or, so far as the evidence goes, ever has been. In order to get into the open vaults, one either has to climb through the window and cross the area or put a ladder down into the area from outside. Physically, the vaults lie under the pavement, and not under any part of the rest of the building if one projects any part of it upwards or downwards. There is also doubt (one can put it no higher) on the Land Registry plan, as to whether they form part of the title of the building.
Mr Templeman’s submission is that:
(a) either all the vaults form part of the building or none: for the reasons already given, I reject that;
(b) all the vaults were presumably constructed at the same time as the building (I accept that probability) and come within the “vertical slice”, as defined in section 3(2). The point here is that a “part of a building” is regarded, for the purposes of the act, as self-contained if it is a vertical division of the building and the structure is such that part could be developed independently of the remainder. I do not think this solves the problem. As I see section 3, if something is part of the entire building to begin with and, slicing the building vertically, the relevant item forms part of something that can be developed independently, well and good, the part is a statutorily defined part, but I do not see this as being of any help in determining whether something that may or may not be part of the “slice” is actually part of the slice. The section is not directed to that question.
Mr Radevsky’s submissions are that:
(a) it is not part of the building – it is external to the building; or
(b) arguably, it is part of the common parts and might be regarded as structure.
I am against both of Mr Templeman’s arguments for the reasons given and against Mr Radevsky’s second argument. Realistically, I do not think that it is structure and there is no evidence to suggest that it was ever enjoyed in common. I think probably the best approach to these vaults is to regard them as a facility provided in what, in effect, is a separate structure or building beneath the pavement that is not, and never was, physically part of the subject building.
Disputed area 3
[10] According to anybody’s viewpoint, this was described as a conservatory, a canopy and a covered recreation area. What it actually |page:66| is physically is a quadrilateral to the rear of no 12 with three walls. One wall is the rear wall of the rearmost portion of no 12, and the other two are the corners of the garden walls. Structurally, this has plainly been here a long while and historically would have been either a corner of the garden or a small rear yard. At the time of the notice (and now), it was roofed with a corrugated transparent plastic roof. Since the notice (and therefore of no relevance), the floor has been decked and a trellis placed over the previously open fourth side. Mr Tonge is the expert who called it a canopy. He did this because the RICS guidelines exclude canopies from measurement. In my judgment, the test here is whether it is part of the building. Mr Blooman said that it is. It is a matter very much of fact and degree. The reality is that, absent the roof, there is unarguably no part of the building at all. It is a combination of exterior walls in the open air. The amount of work involved to bring it into the building might be arguable but, in my judgment, a simple roof of the type that I have described is really not enough; what it is is a covered yard still substantially open to the elements. Therefore, I simply find that it is not a part of the building. Its present apparent use is as a sitting-out area (also the most obvious use). If I were wrong and it was part of the building, I would have held that it was in residential use.
Disputed area 4
[11] This is the party wall between flat 1 in no 12 and the business area in the upper- and lower-ground floors in no 14. This is a wall that divides areas in different occupations and, at first sight, would appear to be, as Mr Radevsky submitted, a party wall and therefore a common part. I see no answer to this contention. However, this is not the end of the argument because the landlord and his advisers have had a late thought. This wall extends upwards to the top of the building. Originally, of course, it divided fully the two sets of premises, nos 12 and 14, which, one would expect, had accommodation “above the shop”. Now, the flats have been developed laterally and this wall no longer divides them; rather, it has been pierced so that the flats can each be occupied as one. Further, the floorboards do not depend upon it for support. However, the landlord said that it really should be treated as a common part because it is either a party wall or it is structural. The difficulty in the landlord’s way is that this was all raised late, the measurements have been done by both surveyors without regard to the point, and there is no firm evidence of what function the wall now fulfils in the upper storeys. My conclusions are as follows:
(a) The burden is on the landlord to set this point up and prove it. He has not done so effectively for the reasons given above.
(b) In any event, there must be serious doubt as to whether one should treat a wall that is wholly within the domestic area of occupation and is not part of the “envelope” of the building as, in reality, a common part unless, at the least, there is clear evidence that it is main structure. Here, there is no compelling evidence.
Disputed area 5 and disputed area 8
[12] This relates to staircases. In respect of area 5, it is argued that where the stair to the lower-ground floor passes below the (common part) stair from the hallway, the hole in the floor through which it passes should be, as it were, notionally covered and measured in with the floor space of flat 1. As regards area 8, a similar but smaller exercise needs to be done on the second floor. The concept took a disproportionately large amount of time to explain and understand. I can only hope that I have now got it right. It is probably best put in Mr Blooman’s report, in which he says “stair treads are counted as floor space for the upper floor until they are underneath the floor above”. I do not understand the surveyors to disagree in any fundamental principle; it is really a matter of how far the notional “cover” should extend. The advantage enjoyed by the tenant is that Mr Blooman has done the measurements and Mr Tonge has not done those measurements that represent his difference of view. I found Mr Blooman convincing in the measurements at which he arrived, and I accept what he said.
Disputed area 6
[13] This concerns the “dry linings” in the lower-ground floor of no 14. What happened was that when the redevelopment took place, Mr Schulze, who was to have a long lease of this part of the premises, was conducting a media-related business that some neighbours would have thought was noisy. Sensibly enough, soundproofing (the “dry linings”) was added to the interior faces of the walls. It is apparent from the present physical appearance (which I do not understand has altered) that the covings and skirting were inserted with a regard to being consistent with these wall faces – in effect, the entire job was done as one and the room looks like a perfectly ordinary room, with nothing that would identify the dry linings as something distinct. It is not clear, I think, whether the works preceded the lease or the lease preceded the works; it may not indeed much matter. Mr Taylor and Mr Schulze were in close collaboration over this development and, in my judgment, the obvious inference is that it was done as an agreed part of the development from which they both benefited.
The practical point, so far as I am concerned, is that if the dry linings can be disregarded and the faces of the walls regarded as starting only where the linings end, the floor space of the lower-ground floor of no 14 will increase to the benefit of the “business” side of the calculation.
The primary argument for the landlord is that, in reality, these are tenants’ fixtures that can be removed by the tenant. Mr Radevsky cited to me paras 25-14ff of Dowding and Reynolds on Dilapidations, which deals in a convenient form with such fixtures (the learned authors are still alive and in practice, but their work is, at this point, a convenient summary of known authority and I rely upon it for that purpose). So far as I can see, these linings would satisfy virtually none of the relevant tests. In the real world, one simply cannot see how the tenant could ever hope to remove the linings in any recognisable form and then make good without: (i) the linings losing their status as a chattel and simply being destroyed; and (ii) doing excessive damage to the walls – they would not only have to be redecorated but, I think, at least to an extent, resurfaced. The reality, to my mind, is that these facings were part of the room as constructed and let. I reject the landlord’s contention.
Disputed area 7
[14] This concerns the “ashlars” in the top floor. It is an odd use (which I had not previously encountered) of a word of great antiquity that is normally associated with walls of smooth-faced masonry in medieval buildings. Its use here (which, as one can see, is vaguely derivative) is in relation to thin facings, of what is probably plasterboard, that support radiators. The reason for them is simply this. The top floor is in the mansard roof, so that, at floor level, it extends under the eaves. Where there are no radiators, the floor extends to the edge. Essentially, the difference between the experts is that Mr Blooman thought that you should measure to the edge of the eaves and Mr Tonge that you should measure to the edge of the ashlars, taking these as the innermost edge of the perimeter walls and then, as I understand it, apply the code so as to exclude the eave space at any point.
If, in truth, the ashlars were upstanding walls of the kind familiar in eaves construction, I would be with Mr Tonge. But the reality of what these are is, I think, against him. They are light-structured upstands whose function is not to act as a wall but simply to support radiators. As Mr Blooman pointed out in his report, these can easily be removed and, with the installation of modern and smaller radiators, it might well be desirable to do so. In my judgment, they are (in contrast to the dry linings) not to be regarded as part of the permanent construction of the room, but as something temporary and liable to be removed. I prefer Mr Blooman’s approach.
Disputed area 9
[15] This is an odd little dispute. On the upper-ground floor of no 14, along the wall separating the old shop part from the common hall, a substantial aperture has been constructed in the wall, and it has been boxed in on the “shop” side with a shelf on top of the boxing. It is inaccessible from the “shop” side but has doors on it on the hall side and contains the meters for the common services. It is, in practical truth, a meter cupboard that all can use from the common parts from which alone it is accessible. Mr Blooman acknowledged that it would be regarded as common-part space at floor level, but he draws attention to the usual practice of measuring a projection into the area of a flat |page:67| where it has a top. I see the point, but it seems that it simply cannot be in both categories, and the reality is that it is part of the common parts, and I so determine.
Effect of conclusion
[16] The tenant succeeds on all the disputed areas except two. The “conservatory” is not to be regarded as part of the building, and the meter cupboard is to be regarded as part of the common parts. Therefore, if, as is the result of my findings, I accept Mr Blooman’s other calculations, as indeed I do, then the residential area recalculates as 364.933m2, and the non-residential (business) area remains as 115.946m2. These aggregate to 480.879m2 and, on my calculations, that makes the non-residential area to be 24.11126% of the aggregate. Assuming these calculations to be correct, the claimant just succeeds (by less than 1%) in establishing its claim to enfranchise.
Claim allowed.
