Right to manage – Commonhold and Leasehold Reform Act 2002 – Self-contained building – Respondent applying to acquire right to manage building – Building freestanding and structurally detached when first built – Building later attached to surrounding properties by weathering features introduced to prevent water ingress – Whether qualifying as “self-contained” building within section 72(1) of 2002 Act – Whether “structurally detached” within section 72(2) – Appeal dismissed
The respondent RTM company made an application to acquire the right to manage premises in Manchester, of which the appellant was the landlord, under Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002. The premises comprised a mixed commercial and residential development with 82 flats over 14 residential floors and five commercial units at ground level. The development had originally been constructed between 1999 and 2002 as a freestanding, structurally detached building that did not touch any other properties. However, when further building had later occurred on the surrounding properties, weathering features had been introduced to cover the gaps in between to prevent water ingress that would otherwise have occurred by reason of the construction of those other buildings; from that time, the premises were connected to the other properties by those weathering features. The appellant opposed the right-to-manage application on the ground that the premises were not a “self-contained building” within the meaning of section 72(1) of the 2002 Act, since they were not being structurally detached as required by section 72(2).
The leasehold valuation tribunal (LVT) found in favour of the respondent and held that it was entitled to acquire the right to manage the premises. It considered that whether a property was “structurally detached” was a mixed question of fact and law and that the degree of attachment in the instant case did not prevent the premises from being “structurally detached” from the adjoining properties.
The appellant appealed. It contended that once there was any attachment, for example in the form of touching, between a building and another structure then the building ceased to be structurally detached.
Held: The appeal was dismissed.
This was an appeal by way of review in which there was no appeal against the LVT’s factual findings as regards the nature of the building and the nature and extent of the weathering features bridging the gap between the building and neighbouring structures. The LVT had found as a fact that the degree of attachment between the building and the neighbouring structures was insufficient to make the premises not “structurally detached”. The LVT had not applied an incorrect test in law so as to vitiate its conclusions. The purpose of the relevant part of the 2002 Act was to permit a RTM company to manage premises that were self-contained and were in consequence susceptible to being managed as a discrete unit. The provision in section 72(2), that a building was a self-contained building if it was structurally detached, should be construed in that context. To construe “structurally detached” as requiring the absence of any attachment or touching between the subject building and some other structure would be to construe section 72(2) as though it said “detached” or “wholly detached” rather than “structurally detached”. Section 72(2) did not require that there be no touching or attachment at all, or at the most de minimis touching or attachment, between the building and some other structure. What was required was that there should be no structural attachment, as opposed to non-structural attachment, between the building and the other structure: Parsons v Viscount Gage (Trustees of Henry Smith’s Charity) [1974] 1 WLR 435; (1974) 230 EG 1887 distinguished. The LVT had been entitled to find that such attachment as existed was not structural and that the building was therefore structurally detached so as to amount to a self-contained building within the right-to-manage provisions.
Justin Bates (instructed by Brethertons LLP, of Banbury) appeared for the appellant; Martin Dray (instructed by Lopian Wagner Solicitors, of Manchester) appeared for the respondent.
Sally Dobson, barrister
