Landlord and tenant – Right to manage – Section 72 of Commonhold and Leasehold Reform Act 2002 – Appellant serving notice on respondents claiming right to manage block of flats – First-tier Tribunal determining appellant not entitled to acquire right to manage – Whether building “structurally detached” and self-contained – Whether appellant acquiring right to manage – Appeal dismissed
Premises at Central Quay North, Broad Quay and 8 Marsh Street, in the centre of Bristol were owned and managed by the first and second respondents respectively. They formed part of a redevelopment which involved the demolition of existing buildings on the site except for a central concrete frame tower block which was retained, re-clad and extensively refurbished and extended and was now an hotel. The premises were a new building constructed to the north of the central tower block and comprised a small basement, two ground level commercial units, and residential flats on floors 1 to 7. A ramp ran down to an underground car park for the hotel, part of which was under the premises, which at that point were supported by concrete pillars, two of which rose from the central kerb that separated the up and down lanes of the ramp. The residential tenants did not have the use of the car park.
Under the Commonhold and Leasehold Reform Act 2002, leaseholders of flats were entitled to manage their buildings using a right to manage company established for that purpose where the premises consisted of a self-contained building, or part thereof. The appellant was such a company which served a notice on the respondents claiming the right to manage the premises. The respondents served a counter notice alleging that the appellant was not entitled to do so by reason of section 72(1)(a) of the 2002 Act, on the basis that the premises did not consist of a self-contained building or part of a building. Following an inspection of the premises and a hearing, the First-tier Tribunal (FTT) determined that the appellant was not entitled to acquire the right to manage the premises. There was no “single visible division” between the properties and the appellant had failed to establish that the north block was a structurally detached building within section 72 of the 2002 Act. The appellant appealed.
Held: The appeal was dismissed.
(1) By section 72(2) of the 2002 Act, a building was “a self-contained building” if it was “structurally detached”. The expressions “building” and “structurally detached” were not defined in the 2002 Act and had to be given their ordinary and natural meaning. It was neither necessary nor helpful for a tribunal considering whether premises were “structurally detached” to reframe the question in different terms. It was not helpful to substitute a test of “structurally independent” or “having no load-bearing connection” for that of “structurally detached”. What was required was that there should be no structural attachment (as opposed to non-structural attachment) between the building and some other structure: No.1 Deansgate (Residential) Ltd vNo.1 Deansgate RTM Co Ltd[2013] UKUT 580 (LC) applied. A building might be structurally detached even though it touched, or was attached to, another building, provided the attachment was not structural. In the present context that meant “appertaining or relating to the essential or core fabric of the building”. A building would not be structurally detached from another building if the latter bore part of the load of the former building or there was some other structural interdependence between them. So long as a building was structurally detached, it did not matter what shape it was or whether part of it overhung an access road serving some other building. A building could be structurally detached even though it could not function independently. Adjoining buildings might be structurally detached even though a decorative façade ran across the frontage of both buildings. The question whether or not premises in respect of which a right to manage was claimed comprised a self-contained building was an issue of fact and degree which depended on the nature and degree of attachment between the subject building and any other adjoining structures. In determining whether a building was structurally detached, it was first necessary to identify the premises to which the claim related, identify which parts of those premises were attached to some other building and decide whether, having regard to the nature and degree of that attachment, the premises were structurally detached. If a structural part of the premises was attached to a structural part of another building, the premises were unlikely to be structurally detached: ParsonsvGage (Trustees of Henry Smith’s Charity)[1974] 1 WLR 435, Irvine vMoran [1991] 1 EGLR 261, Gala Unity Ltd vAriadne Road RTM Co Ltd [2013] 1 WLR 988and Albion Residential Ltd vAlbion Riverside Residents RTM Company Ltd [2014] UKUT 6 (LC) considered.
(2) The FTT had found as a fact that the degree of attachment between the premises and the neighbouring hotel extension was insufficient to make the premises not “structurally detached”. The FTT had correctly identified the issue raised, addressed the applicable statutory provision and accurately summarised the competing submissions of the parties and the expert evidence. It had applied the correct test as established in No 1 Deansgateand recognised that mere touching did not prevent a building from being structurally detached from another for the purposes of section 72. It could not be said that the FTT was substituting a new test of “single visible division” between the two buildings for the test of “structural detachment” which it had previously clearly identified as the real point for decision. Whilst mutual structural reliance, or inter-dependency, might indicate structural attachment, its absence did not necessarily connote structural detachment. This was not a case merely of two adjoining walls touching, with no structural connection between them: on the basis of the visual inspection, the FTT was entitled to conclude that the car park ceiling and its floor, or base, constituted a single composite structure which straddled both buildings. The appellant could not successfully maintain that the FTT applied the wrong legal test or reached a conclusion which was not open to it on the facts found.
Philip Rainey QC (instructed by Watson Farley & Williams LLP) appeared for the appellant; Jonathan Upton (instructed by Ashley Wilson Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read transcript: CQN RTM Co Ltd v Broad Quay North Block Freehold Ltd and another
