Collective enfranchisement – Part I of Leasehold Reform, Housing and Urban Development Act 1993 – Part of building containing flats – Hot water provided by boiler house to rear – Whether right to acquire boiler house – Whether permissible to amend initial notice to exclude boiler house – Whether possible to provide “relevant services” independently within section 3(2)b)(ii) of 1993 Act – Claim dismissed
The claimant was the nominee purchaser specified by the participating tenants in a collective enfranchisement claim under Part I of the Leasehold Reform, Housing and Urban Development Act 1993. The claim related to a property in London W14, comprising 14 flats. That property and the adjoining property together formed a mansion block, the two properties being divided vertically by a party wall. The defendant landlord owned both properties. It supplied hot water and central-heating services to all the tenants in the block under the terms of their leases by means of a separate boiler house to the rear of the block. One-half of the boiler house was included within the collective enfranchisement claim in the claimant’s initial notice.
The defendant served a counter-claim under section 21 of the Act, denying the right to collective enfranchisement on the ground that the premises in question did not constitute a part of a building within the meaning of section 3. The “relevant services” provided for its occupiers could not be provided independently from those of the occupiers of the remainder of the building, either at all or without carrying out works that were likely to result in a significant interruption to the provision of such services to the remainder.
The claimant applied to amend the initial notice to omit the boiler house and sought a declaration that it was entitled to acquire the freehold of the premises that were specified in the amended notice. It contemplated solving the problem of supplying “relevant services” to the 14 flats either by building a new boiler house within the curtilage of that part of the building or by installing individual systems in each flat. The defendant contended, inter alia, that: (i) the amendment was not authorised by para 15(2) of Schedule 3 to the Act since the initial notice did not specify any property that the claimant was not entitled to acquire; and (ii) the relevant services could not be provided independently within the terms of section 3(2)(b)(ii).
Held: The claim was dismissed.
(1) Para 15(2) permitted amendment of a claim only where the initial notice either: (i) specified property or an interest that the claimant was not entitled to acquire under sections 1 or 2 of the Act; or (ii) failed to specify property or an interest that the claimant was entitled to acquire. There was no ambiguity, patent mistake or inconsistency in para 15(2) such as to justify any wider interpretation by the application of a purposive approach.
(2) The claimant’s amendment should be permitted under para 15(2) because the initial notice included property that the claimant was not entitled to acquire under sections 1 or 2. The boiler house was not demised by any of the tenants’ individual leases and was not property that any tenant was entitled to use in common with the occupiers of other premises within the meaning of section 1(3)(b). The tenants had no right to use the boiler house but were entitled to receive a supply of hot water from it only pursuant to the landlord’s covenant; it was the landlord that used the boiler house exclusively for its own purposes in fulfilling the covenant.
(3) The premises specified in the notice, as amended, excluding the boiler house, did not qualify as a self-contained part of a building. Section 3(2)(b)(ii) was not fulfilled where the relevant services could be provided to the enfranchising part by some separate means, even if different from the existing means and not in existence or available. Such a test would be incompatible with the principle that the part of the building in question should be either clearly self-contained or so nearly self-contained that it could effectively be so regarded. The “relevant services provided for occupiers of that part” within section 3(2)(b) were the service systems actually provided; the Act was looking at alterations to the configuration of the existing services, rather than the possibility of providing independent services in the abstract. Even if that were wrong, the claimant had failed to show as a matter of fact that the works it proposed were feasible either at all or without significant interruption to the services provided to the remainder of the building.
Kenneth Munro (instructed by Terence St J Millett & Co) appeared for the claimant; Timothy Fancourt QC (instructed by Wallace LLP) appeared for the defendant.
Sally Dobson, barrister
