Cutter & Ors v Pry Ltd [2014] UKUT 215 (LC)

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER) (LONDON VALUATION TRIBUNAL)
UT Neutral citation number: [2014] UKUT 0215 (LC)Venue (1) MARK CUTTER, (2) STUART HODGKISS, (3) JANICE HODGKISS, (4) MARK DAWKINS Appellants, and, PRY LIMITED Respondent, Re: Montague House,, Regents Drive,, Woodford Green,, Essex 1GB 8SA, Before: Judge Edward Cousins, Sitting at: 43-45 Bedford Square, London WC1A 3AS, on, © CROWN COPYRIGHT 2014, The following cases are referred to in this decision:, Oakwood Court (Holland Park) Ltd v Daejan Properties Ltd [2007] 1 EGLR 121, Panagopoulos v Earl Cadogan [2011] Ch 177 ; [2011] Ch 200 (CA), Cullen v Barnard Lodge Management Limited [2013] UKUT 0493 (LC), Daejan Investments Ltd v The Holt (Freehold) Ltd LRA/133/2006, Lytton v Sansom CH1/00HH/OCE/2008/0026, Fluss v Queenbridge Terrace Residents Ltd [2011] UKUT 285 (LC), Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749, York v Casey [1998] 2 EGLR 25, R v Soneji [2006] 1 AC 340, Shortdean Place (Eastbourne) RA Ltd v Lynari Properties Ltd [2003] 3 EGLR 147, Siemens Hearing Instruments Ltd v Friends Life Ltd, Cases referred to in argument:, Newbold v The Coal Authority [2013] EWCA Civ 584, Burman v Mount Cook Land Ltd [2002] Ch 256, Yates Building Co Ltd v Pulleyn (RI) & Sons (York) Ltd (1975) 237 EG 183, Petch v Gurney [1994] 3 All ER 731, Decision, The background of the Appeal
Between
Cutter & OrsPry Ltd
Date 14 March 2014
[1]Montague House, Regents Drive, Woodford Green, Essex 1GB 8SA (“Montague House”) comprises a former period office building converted into a block of six flats two of which have been joined to form a single flat (flat 2). Immediately to the East of Montague House is Arlington House. The freehold of both blocks of flats is owned by the Respondent company, Pry Ltd, and the blocks are registered collectively under title number EGL446585. Mr Tom Sharpe is the Respondent’s director and member, and he provided a witness statement dated 21 st January 2013 on behalf of the Respondent in the proceedings.[2]The Appellants are the current lessees of three flats in Montague House, as follows - the First Appellant is the lessee of flat 2, the Second and Third Appellants are the lessees of flat 3, and the Fourth Appellant is the lessee of flat 5. The owners of flats 1 and 6 have not participated in the original application. Each flat is held under a lease in common form. The lease dated 17 th January 2005 [1] granted in respect of flat 2 (“the Lease”) has been utilised as the standard lease for the purposes of the appeal. It is included at tab 8 in the bundle of documentation prepared for the appeal hearing (“the Bundle”). In this Decision reference shall be made to provisions contained therein.[3]By an initial notice (“the Initial Notice”) dated 4 th May 2012 served on the Respondent as the reversioner of Montague House (“the Reversioner”) the Appellants as nominee purchasers (“the Nominee Purchasers”) sought collectively to enfranchise their leases pursuant to the provisions of Section 13 of the Leasehold Reform Housing and Urban Development Act 1993 (“the 1993 Act”). The specified premises (“the Specified Premises”) are shown shaded green on the plan attached to the Initial Notice (“the Notice Plan”). In addition the Applicants have sought to enfranchise additional freeholds pursuant to Section 1(2)(a) of the 1993 Act by reference to the area shaded yellow on the Notice Plan comprising “access ways, parking spaces and other land appurtenant to Montague House…”[4]A counter notice (“the Counter-Notice”) was served by the Respondent dated 9 th July 2012 in which various challenges and counter-proposals were made to the Initial Notice. In particular, the enfranchisement of the parking spaces is challenged, and counter-proposals were made. These were to the effect that(1) the Respondent was willing to demise 6 parking spaces tinted blue on the plan annexed to the Counter-Notice, of which it is said that only the Applicants have the use, for the sum of £10,000 per space. As to the remaining 6 parking spaces these were to be retained by the Respondents, but would be made available to the Applicants if they wished to purchase them at £10,000 per space; and(2) as Arlington House and Montague House are served by the same roadway, grounds and communal accessway it is said that these areas cannot be separated from the current freehold title.[5]On 2 nd November 2012 the Respondent’s solicitor provided the Applicant’s solicitor with a draft transfer in form TP1. The parking spaces identified on plan B thereto were identified as those numbered 7, 8, 9, and 10. On 28 th November 2012 an amended draft transfer was forwarded by the Applicant’s solicitor to the Respondent’s solicitor. Subsequently in a letter dated 11 th January 2013 the Respondent’s solicitor sought to confirm the Respondent’s position, and an amended copy of the draft transfer was enclosed. In paragraph 3 of the letter reference was made to the Respondent’s duty to maintain the access road for the benefit of the leaseholders of Arlington House, and that it had to be retained. However, a proposal was made by the Respondent that appropriate access rights would be granted to the Applicants. In the proposed Second Schedule (rights granted) of the draft transfer [2] provision is made for:- “The Right of Way at all times and for all purposes with or without vehicles over the roadway serving the Development subject to the payment of a fair proportion of the costs and expenses for maintaining [etc]…the roadway serving the development….”[6]On 22 nd and 23 rd January 2013 the hearing of the application took place before the Leasehold Valuation Tribunal (“the LVT”). At the hearing the Respondent sought to vary the proposal contained in the proposed Second Schedule (rights granted) so as to insert the word “reasonable” immediately before the word “costs”. This proposed insertion meant that the clause would read “…subject to the payment of a fair proportion of the reasonable costs and expenses…”[7]On 30 th January 2013 the LVT handed down its decision (“the LVT Decision”) against which the Appellants appeal. The reasons given by the LVT are set out in paragraphs 12 to 15 and 34 of the Decision, and its conclusion is reached in paragraphs 42 to 44. It will be noted that the LVT adopted the Respondent’s submissions in the case to which it refers in paragraphs 11 to 25 of the Decision (see paragraph 34). As to the proposed variation to the draft proposal made by the Respondent so as to insert the word “reasonable” into the clause, the LVT rejected the submissions made by the Applicants that it was not open to the Respondent to go beyond the offer already made on the basis that the Respondent was already bound by that offer. The LVT stated having regard to the relevant authorities it was satisfied that the variation could be made (see paragraphs 41 and 42 of the LVT Decision).[8]In its Decision the LVT was satisfied that the Respondent had correctly resisted the attempt by the Nominee Purchasers to enfranchise land other than the Specified Premises, and that the enfranchisement should be limited to the Specified Premises only. Thus there was no entitlement for other land to be included within the enfranchisement. Application to the LVT for permission to appeal[9]Following the LVT Decision the Appellants then on 18 th February 2013 made an application for permission to appeal the LVT Decision to the Upper Tribunal, to which reasons for the application for seeking permission to appeal were attached. The reasons are set out in four grounds. In its decision dated 25 th February 2013 the LVT rejected all four grounds of appeal, and permission to appeal to the Upper Tribunal was refused for the reasons set out in that decision. The decision of the Upper Tribunal on the Applicant’s application for permission to appeal to the Upper Tribunal[10]On 11 th March 2013 the Appellants sought permission to appeal the LVT decision from the Upper Tribunal (Lands Chamber) on the same four grounds of appeal. In his decision dated 25 th June 2013 the Deputy President granted permission to appeal three of the four grounds of appeal, but rejected permission to appeal against the decision of the LVT on the fourth ground. The following observations are made by the Deputy President in his decision, as follows:- “The proposed appeal is arguable so far as it concerns the proper application of Section 1(3) (b) of the [1993 Act] to property over which a qualifying tenant enjoys rights to park in a space allocated from time to time by the landlord, and to property to the maintenance of which the qualifying tenants are required to contribute but which they are prohibited from entering by a covenant in their leases. The question whether the LVT was right to permit the landlord to vary the proposed terms of the Transfer raises a point of practice of general application which has been the subject of uncertainty and of which a clear decision to the Upper Tribunal would be beneficial. In contrast, however, there is in my view no reasonable prospect of this Tribunal disagreeing with the view of the LVT that the terms of the proposed Transfer, so far as they related to the payment of reasonable costs for maintaining communal access ways, provided the applicants with the same rights as those they enjoyed under the leases as nearly as may be. The appeal will be by way of review.” The Issues[11]The three issues, the subject matter of this appeal, are defined as follows: the “Car Parking Spaces Issue”; the “Gardens Issue”; and the “Offer Terms Issue”.(1) The Car Parking Spaces Issue This issue concerns certain car parking spaces as identified on the plan annexed to the Counter-Notice, and whether or not the Appellants as the Nominee Purchasers are entitled to include them as part of the enfranchisement process under the provisions of Section 1(3)(b) OF the 1993 Act. The LVT came to the conclusion that the Nominee Purchasers were not entitled to purchase any of the 13 available Car Parking Spaces in accordance with the true construction of the relevant provisions of the Lease, and the relevant statutory provisions of the 1993 Act. Thus the question arises as to whether the LVT in its analysis was entitled to exclude from the land to be purchased by the Nominee Purchasers all 13 car parking spaces, and if not, whether the Nominee Purchasers are entitled to purchase all of them, some of them, or none at all.(2) The Gardens Issue The LVT excluded from the land to be purchased by the Nominee Purchasers the communal gardens (“the Gardens Area”) surrounding the blocks of flats, and found that the Nominee Purchasers were not entitled to include them as part of the enfranchisement process under the provisions of Section 1(3)(b) the 1993 Act. The question therefore arises as to whether the LVT was justified in its conclusion that the Reversioner was correct in excluding the Gardens Area from the land to be purchased by the Nominee Purchasers having regard to the fact that the Nominee Purchasers are required to contribute to the maintenance of the same under the relevant provisions of the Lease, but which they are prohibited from access by a covenant in the Lease. A further argument was introduced on the appeal relating to “visual amenity” (i.e. “to use visually”). This point had not been taken before the LVT.(3) The Offer Terms Issue The consideration of this issue raises the point as to whether the LVT was entitled to allow the Reversioner to make a late amendment during the course of the hearing to vary the wording of the rights offered in the proposed transfer in lieu of purchase, having regard to the provisions of Section 1(4) of the 1993 Act. The relevant statutory provisions of the 1993 Act[12]Section 1(2) to (4) of the Act provides as follows:
“(2) Where the right to collective enfranchisement is exercised in relation to any such premises (“the relevant premises”) - (a) the qualifying tenants by whom the right is exercised shall be entitled, subject to and in accordance with this Chapter, to have acquired, in like manner, the freehold of any property which is not comprised in the relevant premises but to which this paragraph applies by virtue of subsection (3); and (b) section 2 has effect with respect to the acquisition of leasehold interests to which paragraph (a) or (b) of subsection (1) of that section applies. (3) Subsection (2)(a) applies to any property if at the relevant date either - (a) it is appurtenant property which is demised by the lease held by a qualifying tenant of a flat contained in the relevant premises; or (b) it is property which any such tenant is entitled under the terms of the lease of his flat to use in common with the occupiers of other premises (whether those premises are contained in the relevant premises or not). (4) The right of acquisition in respect of the freehold of any such property as is mentioned in subsection (3)(b) shall, however, be taken to be satisfied with respect to that property if, on the acquisition of the relevant premises in pursuance of this Chapter, either— (a) there are granted by the person who owns the freehold of that property — (i) over that property, or (ii) over any other property, such permanent rights as will ensure that thereafter the occupier of the flat referred to in that provision has as nearly as may be the same rights as those enjoyed in relation to that property on the relevant date by the qualifying tenant under the terms of his lease; or (b) there is acquired from the person who owns the freehold of that property the freehold of any other property over which any such permanent rights may be granted.”
[13]Section 21(3) (b) is in the following terms:
“(3) If the counter-notice complies with the requirement set out in subsection (2)(a), it must in addition— … (b) if (in a case where any property specified in the initial notice under section 13(3)(a)(ii) is property falling within section 1(3)(b)) any such counter-proposal relates to the grant of rights or the disposal of any freehold interest in pursuance of section 1(4), specify— (i) the nature of those rights and the property over which it is proposed to grant them, or (ii) the property in respect of which it is proposed to dispose of any such interest, as the case may be….”
The lease provisions The Car Parking Issue[14]Paragraph 1 of Part II of the First Schedule to the Lease provides the following right, namely:- “The right to park one private motor vehicle in such space forming part of the Development as the Landlord shall allocate from time to time.” The “Development” is defined at clause 1.2 of the Lease as “Claybury Villas Chigwell Essex for the purpose of identification only edged blue on the [Lease] Plan.” This definition incorporates both Montague House and Arlington House, the immediate surroundings of these buildings, several parking spaces, and part of the driveway leading up to those parts of the wider estate of which the development forms part, (see the LVT Decision at paragraph 13). The Gardens Issue[15]Clause 7.25 of the Lease provides as follows:- “Not to enter upon any part of the Development other than any parking space specifically allocated to the Tenant under the terms of this lease and any road or pathway laid out by the landlord as at the date of this lease to safeguard the privacy and enjoyment of all other tenants on the Development.” Under the Lease the management company is obliged to maintain the retained parts including the Gardens Area and paths. Through the Maintenance Contribution the tenant is obliged to pay towards the upkeep of the Communal Areas and Facilities (as defined) which include the gardens and paths (see paragraph1.1 and1.2 of Part II of the Second Schedule to the Lease). However the tenants are expressly prohibited from entering upon the Gardens Area in order to safeguard the privacy and enjoyment of all other tenants. The analysis The Car Parking Issue[16]There are parking spaces nearer to Arlington House, but those claimed by the Nominee Purchasers are closer to Montague House. The parking spaces closer to Montague House are shown on the plan attached to the Counter-Notice at page 42 of the Bundle (“the Car Parking Plan”). The Car Parking Plan is based upon the Lease Plan at page 106 of the Bundle, which itself is based upon the Land Registry title plan. The Car Parking Spaces are numbered 1 to 12 on the Car Parking Plan in small format, and the 6 spaces closest to Montague House are shaded and renumbered in larger format numbered 1 to 6.[17]The shaded spaces 1 to 6 in larger format shown on the Car Parking Plan are those which at the time of the Initial Notice had been allocated to leaseholders. In its Decision (at paragraph 15 - page 11 of the Bundle) the LVT found that there were 7 further unallocated parking spaces in total. These are those numbered 1 to 6 on the Car Parking Plan in very small numbers i.e. those furthest from Montague House, and a further space (number 19) was also identified.[18]Thus when the Initial Notice was served by the Reversioner on the Nominee Purchasers there were 6 spaces allocated to the tenants of Montague House and 4 of those were allocated to the participating tenants. The findings of the LVT[19]It is common ground that the Car Parking Spaces were not demised to the Nominee Purchasers, and therefore could not be acquired under Section 1 (3) (a) of the 1993 Act. Thus if the Nominee Purchasers were to acquire the Car Parking Spaces in the first instance reliance would need to place on the relevant statutory provision i.e. Section 1(3)(b) of the 1993 Act.[20]As noted above, Section 1(3)(b) applies to property in relation to which a tenant is “…entitled under the terms of the lease of his flat to use in common with the occupiers of other premises…”. The LVT accepted the reasoning of the Respondent to the effect that if regard is had to each of the allocated car parking spaces, each allocated space is not used in common with the occupiers of other premises. In short each space is allocated to each tenant. The findings of the LVT on this point at paragraph 13 of the LVT Decision are as follows:
“The car parking space is a space which the tenant is entitled to have allocated for his or her use within the development. It can be such space as is allocated to the tenant from time to time by the landlord. It is not provided in the lease that it is to be used in common with other tenants. Indeed that would defeat the whole object of having a car parking space allocated to the tenant. The whole purpose of this is that there should be that facility by way of licence in effect afforded to the tenant”
. The case for the Appellant[21]The Appellant contends that this result is unfair and that the reasoning of the LVT in paragraphs 12 to 15 of the Decision is wrong. All of the available parking spaces in the vicinity of Montague House (i.e. spaces 1 to 19) should be acquired by the tenants on the basis that together the allocated and unallocated parking spaces form a “common pool” from which the Reversioner allocates one parking space to each tenant. As such the Applicants “use in common” the parking spaces. The Appellant submits that this position is reflected when an analysis is made of the true construction of clauses 7.25 and 7.26 of the Lease, and paragraph 11 of Part II to the First Schedule thereto, [3] in order to give a proper meaning to the words “from time to time”. This is also reflected in the position on the ground. Any disposal of an allocated or unallocated parking space would be a derogation from grant and therefore be unlawful. The Reversioner cannot therefore dispose of them and is obliged to maintain them, and the tenants must pay for their upkeep and may enjoy the benefit of one space as allocated from time to time. It is therefore submitted that the statutory requirements contained in Section 1(3)(b) of the 1993 Act are thereby satisfied.[22]The Appellants find support for these submissions in the cases of Oakwood Court (Holland Park) Ltd v Daejan Properties Ltd, [4] and Panagopoulos v Earl Cadogan, [5] to which Counsel refers in paragraphs 7 and 8 of his Skeleton Argument. The case for the Respondent[23]The Car Parking Spaces do not form a common pool. Each tenant has a right to park in a specifically marked space allocated by the Reversioner. There is no common pool, just a collection of individual rights which are precarious. Further, in relation to the other unallocated spaces (currently numbered 1 to 6 and 19) the tenants have no rights at all, and cannot be described as being used in common at all. So if there is a common pool at all it is only of spaces 7 to 12. Further, if there is a pool it is submitted that it is not a common pool. Reliance is placed on the words contained in Section 1(3)(b) of the 1993 Act which provides that “property which any [qualifying] tenant is entitled . . . to use in common with the occupiers of other premises”. As indicated by the LVT the concept of allocated parking is the antithesis of property which is used in common.[24]The Respondent finds support for this submission in dicta of Carnwath LJ in Panagopoulos v Earl Cadogan. [6] In that case the court was considering the statutory definition of “common parts” in the 1993 Act.

The Lord Justice stated that:

“16. Some inferential help is offered by the [1993] Act in section 4(2)... which refers to: ‘any part of the premises (such as, for example, a garage, parking space or storage area) [which] is used, or intended for use, in conjunction with a particular dwelling contained in the premises (and accordingly is not comprised in any common parts of the premises).’ This suggests, unsurprisingly, that such things as garages and storage areas are “common parts” if available for shared use, but not if used in conjunction with a particular dwelling. 17. That seems to me to accord with the ordinary meaning of the word “common”: that is for shared, rather than individual, use or benefit…..”
[25]As to the judgment of Roth J at first instance in Panagopoulos v Earl Cadogan upon which the Appellants rely, it is submitted that care must be taken as the decision was concerned with the definition of common parts and whether a caretaker’s flat fell with that definition. As to the Oakwood Court case, the Respondent’s Counsel indicated that the circumstances were very different from those appertaining in the present case. In that case the boiler house was situated in a separate building and did not fall within the meaning of Section 1(3)(b) of the 1993 Act as receipt of the water from the boiler by the tenants did not amount to their “use” of the boiler, and that had no application on the definition of “common parts” which does not depend on “use”.[26]As to the question of fairness raised by the Appellants it is contended that there is no compelling reason why the Reversioner should be compulsorily required to part with parking spaces over which the tenants have no rights at all. The Gardens Issue[27]Surrounding Montague House and Arlington House there is what the LVT defined as a “decorative or ornamental garden area which enhances the property generally” [7] , part of which is laid out as a lawn. To the south of the lawn is the driveway, and there are paths leading from the driveway to the entrance of each building. By virtue of clause 7.25 of the Lease the tenants are prohibited from entering upon any part of the Development, other than any parking space specifically allocated and any road or pathway, as the area provides an “ornamental enhancement of the property.” The findings of the LVT[28]The LVT found that the Gardens Area could not come within the provisions of Section 1(3)(b) of the 1993 Act. It was not property which the Nominee Purchasers were entitled to use in common with the occupiers of other premises under the terms of their leases because there was an express prohibition on entering the Gardens Area. As the LVT found (paragraph 18), the Gardens Area “…cannot possibly qualify as property to which the leaseholder is entitled, under the terms of his lease to use in common with the occupiers of other premises, or otherwise. Indeed, there is an express prohibition in the lease to the exact opposite effect.” The case for the Appellant[29]The new point introduced by the Appellants on the appeal relates to “visual amenity” (i.e. not to “use physically”, but “to use visually”). The explanation provided at the hearing for this point not having been taken below is that the Appellants previously considered that it was a bad point (as stated by Counsel), and it is now considered to be a good point (see paragraph 20 of the Appellants’ Statement of Case). It is said by the Appellants to be an important point to be heard on appeal as to which there is no authority. It is submitted that it is to be inferred that the Deputy President acknowledged this in his reasons when granting leave to appeal.[30]The basis of the Appellants’ submission is that they are entitled to acquire the Gardens Area pursuant to the provisions of Section 1(3)(b) of the 1993 Act. The Appellants now submit that the Garden Area is a visual amenity upon which entry is not required in order for it to be “used”. The contention is that the Nominee Purchasers do use the garden in common “in the sense that they each share its essential and obvious purpose which is to confer on the residents an environment which is of aesthetic benefit to them all.” [8] The thrust of the Appellants’ contention is therefore that in the case of an ornamental garden “to use” is not restricted to physical use, but includes what they described as “visual use”. It is said to be a necessary part of the debate about whether land upon which tenants cannot enter but which they must pay for through their service charge is capable of enfranchisement. In other words, they submit that there is a “visual amenity” for which they are required to pay through the service charge provisions contained in the Lease, and that therefore (it is submitted) that the area of land in question is capable of enfranchisement. The case for the Respondent[31]Although the circumstances are perhaps somewhat unusual in that the tenants are bound to contribute towards an amenity which they cannot in fact enter, the Respondent contends that the argument against the Appellants’ submission is straightforward. In the context of a garden consisting of lawns the argument is centred on the meaning of the word “use” contained in Section 1(3)(b) of the 1993 Act. The leases of Montague House are to be strictly construed. There is a lawn, but you may not walk on it. The requirement of the subsection is that the tenants are entitled under the terms of their leases to use the property to be acquired. It is submitted that in the present circumstances the tenants are not entitled to “use” the Gardens Area. They are entitled to use the roads and pathways. Undeniably the gardens are of benefit to the tenants in that they make for a pleasant view, and they can enjoy the gardens from their flats, from the pathways and from the road, but they cannot use the gardens by walking in them. All they can do is look at them. Looking at or enjoying the view of a garden does not equate to use of a garden. It is also submitted that the concept of “using visually” is an intellectually contorted use of language.[32]It is further submitted that this point was not argued before the LVT. It is not a sufficient reason to contend that it is now considered to be a good point, whereas before it was considered to be a bad point. The Respondent submits that litigation should not be a sequential process where a party attempts different arguments at different stages. The Appellants have put forward no good reason to persuade the Lands Chamber to hear the appeal on this ground even in the circumstances when permission has been granted. Thus the Respondent invites the Lands Chamber to refuse to allow the Appellants to rely upon this ground for this reason.[33]In Cullen v Barnard Lodge Management Limited [9] the Appellants were given permission to appeal a decision of the LVT on the grounds that the LVT failed to deal with the applicant’s contention that service charges were not due by reason of the failure of the landlord to deal with the provisions of Section 47 and 48 of the Landlord and Tenant Act 1987. The appellants admitted at the appeal that they had not argued this point before the LVT. HHJ Gerald stated as follows: “In my judgment it is not open to Mr and Mrs Cullen to appeal against the decision on the grounds that the LVT failed to deal with a contention which in actual fact was not a live issue before the LVT from which it followed that the LVT did not need to make a decision about that matter at all.” [10] The Offer Terms Issue[34]The Initial Notice sought to acquire the roadway leading to Montague House. The Counter-Notice stated that “Arlington House and Montague House are served by the same roadway, grounds and communal accessways these areas cannot be separated from the current Freehold.” [11] The Counter-Notice did not explicitly offer rights in lieu of the roadway as contemplated by Section 21(3)(b)(i). The draft transfer for which the Respondent contended at the hearing was sent under cover of the letter dated 11 th January 2013. The wording of the rights offered in lieu is set out in paragraph 5, above. It is submitted by the Respondent that the right of way was intended to satisfy the provisions of Section 1(4) of the 1993 Act. In other words it was intended to be a permanent right that would ensure that the tenants had as nearly as may be the same rights as they enjoyed under their leases in respect of the roads on the development.[35]The Nominee Purchasers argued that this right had not been set out in the Counter-Notice, and that the right of way did not limit the tenants’ contributions to the reasonable costs of maintenance. The Respondent sought to address the latter point by amending the terms of the right of way at the hearing by adding the word “reasonable” to the draft. [12] The purpose of this was to ensure that the tenants would only have to contribute to the reasonable costs of maintenance. The findings of the LVT[36]The LVT found that it was permissible for the Reversioner to offer rights under Section 1(4)(a) of the 1993 Act in lieu of the Nominee Purchasers acquiring the roadway, and allowed the Reversioner to amend the rights offered at the hearing. It found that the Appellants’ submissions were contradictory, and the authorities cited were inconsistent with the Appellants’ approach. [13] The case for the Appellants[37]The Appellants contend that as the Respondent did not explicitly state the rights offered under Section 1(4)(a) in the Counter-Notice, it could not rely on the sub-section by reason of the fact that Section 21(3)(b)(i) is a mandatory provision which provides that the Counter-Notice must state the nature of the rights offered under Section 1(4)(a). It was not open to the Respondent to go beyond the offer which had already been made, and the Respondent was bound by it. It is not open to the Reversioner to enlarge the offered rights by a concession made at the hearing, and there is no power to expand them later. In other words, as asserted, the “…offer’s timing was fatal to its potential success.” The appellants’ submissions are set out in paragraph 15 of Counsel’s skeleton argument. The case for the Respondents[38]The Respondent’s submissions in response are as follows:(1) It is implicit from the statement in the Counter-Notice that the Reversioner wished to retain the roadway and would grant the necessary rights of way over it;(2) If that approach is incorrect, the LVT may still determine that such rights ought to be granted.[39]As to the first submission, it is contended that it is implicit from the fact that the Reversioner admitted the claim, but stated that the roadway should not be acquired, that it was invoking Section 1(4) because there is no other power to avoid acquisition of property claimed. It is said to be also implicit that the Reversioner would grant the Nominee Purchasers the necessary right of way over the roadway. The Respondent asserts that the Mannai [14] principle applies to statutory notices, [15] and the reasonable recipient would have understood the notice to be stating that the Reversioner wanted to retain the freehold of the roadway but to grant the Nominee Purchasers a right of way over the land.[40]As to the second submission, the Respondent then poses the following question - if the Counter-Notice is held not to have stated the nature of the rights offered under Section 1(4) what is the position? Following the approach in the case of R v Soneji [16] it is said that the LVT should ask what are the consequence of non-compliance, and whether Parliament intended that the LVT should have no discretion to allow a freeholder to invoke Section 1(4) if the rights to be offered were not clearly set out in the Counter-Notice.[41]The Respondent relies upon the synthesis of the principles applicable to non-compliant notices addressed in the case of Siemens Hearing Instruments Limited v Friends Life Ltd. [17] It is submitted by the Respondent that prima facie the LVT has power to determine all the terms of acquisition (see Section 91(2) of the 1993 Act). [18] The 1993 Act does not expressly provide that a failure to set out the rights offered under Section 1(4) in the Counter-Notice will result in the LVT being bound to determine that no such rights may be offered in lieu. It is contended that the LVT has a discretion as to the determination of the terms of acquisition. There is no provision in the 1993 Act (whether regard is had to Section 21, or elsewhere) which constrains the LVT’s discretion in the event that the Reversioner does not set out the rights offered in lieu of certain land under Section 1(4).[42]Further, both in the cases of Fluss v Queensbridge Terrace Residents Ltd [19] and in Shortdean Place (Eastbourne) RA Ltd v Lynari Properties Ltd [20] it was accepted by the Tribunal that the exact scope of the rights to be granted under Section 1(4) may be modified by the Reversioner after service of the Counter-Notice.[43]The Respondent contends that the 1993 Act should be interpreted so as to allow the LVT to retain a discretion to allow a Reversioner to offer rights in lieu under Section 1(4). The LVT may then operate that discretion so as to prevent unfairness to Nominee Purchasers. It is said that in the present case the Reversioner’s position in relation to the rights to be granted under Section 1(4) were set out in the draft transfer well in advance of the hearing, and there was no unfairness to the Nominee Purchasers in allowing that offer to be modified by the addition of the word “reasonable” during the hearing. The Decision[44]In my judgment, having regard to the extensive submissions made by Counsel for the Appellants, both orally and in writing, and to the various responses made by Counsel for the Respondent, and having regard to the evidence before the LVT, I have no hesitation in dismissing the appeal. In my judgment I find that there is no merit in the points raised made by the Appellants on the three Issues and I consider that the LVT was correct in its analysis of the legal and factual points raised. My reasons are as follows:-(1) The Car Parking Spaces Issue I find that the Car Parking Spaces do not fall within the provisions of Section 1(3) (b) of the 1993 Act. In my judgment the Car Parking Spaces do not form a common pool, and each allocated space is not used in common with the occupiers of other premises. Each space is allocated to each tenant, and each tenant has a right to park in a specifically marked space allocated by the Reversioner. I therefore accept the submissions made by the Respondent, and the authorities cited, and the reasoning of the LVT in paragraph 13 of the LVT Decision. I also reject the contention that there is unfairness to the Appellants in this regard.(2) The Gardens Issue Again, I reject the contention that the Gardens Area fall within the provisions of Section 1(3) (b) of the 1993 Act. This is not property which the Nominee Purchasers were entitled to use in common with the occupiers of other premises under the terms of their leases because there was an express prohibition on entering the gardens by virtue of clause 7.25 of the Lease. The fact that the Nominee Purchasers are required to contribute to the maintenance of the same under the relevant provisions of the Lease, in my judgment, is irrelevant to the determination of the Issue. The Lease specifically provides that this restriction is imposed in order to safeguard the privacy and enjoyment of all of the other tenants of the blocks of flats. As the LVT stated in the LVT Decision the tenants have the benefit of the “decorative or ornamental garden area”. The Appellants’ argument is centred on the meaning of the word “used”, but the leases of Montague House are to be strictly construed, and I find that the Lease provisions prevail and govern the position. Accordingly I accept the submissions made by Counsel for the Respondent that in the present circumstances the tenants of the block are not entitled to “use” the Gardens Area within the meaning of the word “use” contained in Section 1(3)(b) of the 1993 Act. I also reject the more recent point raised by the Appellants that the Nominee Purchaser had the “visual amenity” in that they could use the Gardens Area “visually”, but not “physically”. As Counsel for the Respondent submits, this is a somewhat contorted use of the English language. Accordingly, I find that the LVT was correct in its analysis in paragraph 18 of the LVT Decision and that the Gardens Area could not possibly qualify as property to which the leaseholder is entitled to seek to have enfranchised.(3) The Offer Terms Issue Again, in my judgment, the findings of the LVT were correct in that it was permissible for the Reversioner to offer rights under Section 1(4)(a) of the 1993 Act in lieu of the Nominee Purchasers acquiring the roadway, and it was within the discretion of the LVT to allow the Reversioner to amend the rights offered at the hearing. In this regard, it is clear that the LVT has power to determine all the terms of acquisition under Section 91(2) of the 1993 Act, and that the LVT has a discretion in the determination of the terms of acquisition, upon which there is no statutory constraint in the event that the Reversioner does not set out the rights offered in lieu of certain land under Section 1(4). Support for this interpretation can be found in the case of Siemens Hearing Instruments Limited v Friends Life Ltd where Nicholas Strauss QC analysed the various authorities relating to non-compliant notices. Further support can be found in the cases of Fluss v Queensbridge Terrace Residents Ltd and in Shortdean Place (Eastbourne) RA Ltd v Lynari Properties Ltd, to which I have referred in paragraph 43, above. I also find that no unfairness was accorded to the Appellants in this process.[45]The Appeal is therefore dismissed. Judge Edward Cousins Dated: 20 th May 2014 ANNEX I “39. From these authorities, it seems to me that the position relating to non-compliant notices is as follows:-(a) The principles apply equally to statutory and contractual notices: see Newbold v The Coal Authority, [21] para. 69-70; York v Casey [22] cited in Burman v Mount Cook Land Ltd; [23] Yates Building Co Ltd v Pulleyn (RI) & Sons (York) Ltd. [24](b) Where the statute or the contract term provides that a non-compliant notice will be invalid or ineffective, that is of course the end of the matter: see for example section 26(3) of the 1954 Act.(c) Where it does not, the court must assess the statutory or contractual intention by the usual objective criteria, including the background and purpose of the provision, and the effect if any of non-compliance.(d) Where the notice is provided for by a statute or by a professionally drafted contract, and the draftsman has not provided, either way, for the consequence of noncompliance, one may reasonably assume that this is deliberate, and that it has been left to the court to decide; while it may go too far to say that there is a presumption, it is natural to conclude that it was intended that the notice should, at least in some circumstances, but not necessarily in all, survive noncompliance.(e) The use of “must”, “shall” etc. is not decisive, as Millett L.J. indicated in Petch v Gurney [25] . I do not think Lord Denning M.R. was going any further in Yates than to say that the provisions of that lease which were so worded were mandatory. The court will look to the substance, not the form.(f) What is often decisive in practice is the effect of the non-compliance: see in particular the dictum of Lord Steyn in R v Soneji [26] … Was the omitted information material which it was essential for the other party to have? Has the noncompliance prejudiced the other party? For this reason, notice provisions may be what I have called hybrids, sometimes “mandatory”, sometimes not, depending on the nature and extent of the error, and its effect.” [1] Wrongly described as being dated on 3 rd March 2006 in the Tenant Information Sheet attached to the Initial Notice [2] See sub-paragraph 1.2 of paragraph 5 of the 4 th continuation sheet to the draft transfer by reference to panel 12 (wrongly referred to as panel 13). [3] “The right to park one private motor vehicle in such space forming part of the Development as the Landlord shall allocate from time to time.” [4] [2007] 1 EGLR 121, at paragraphs 28 to 36. as to the meaning of the phrase “use in common with”,per HH Judge Hazel Marshall QC [5] [2011] Ch 177 , Roth J at first instance, at pages 190/191, paragraphs 40 /45, in particular at paragraph 43. [6] On appeal [2011] Ch 200, at pages 203/204 at paragraphs 16 and 17. [7] As described by the LVT in its Decision at paragraph 16. [8] See paragraph 11 of the Appellant’s Statement of Case. [9] [2013] UKUT 0493 (LC), paragraph 8. The decision is not binding, but it is submitted that it is persuasive authority in the circumstances. [10] At paragraph 8. [11] At paragraph 3, on page 2. [12] See paragraph 6, above. [13] Daejan Investments Ltd v The Holt (Freehold) Ltd LRA/133/2006; Lytton v Sansom CH1/OOHH/OCE/2008/0026; Fluss v Queensbridge Terrace Residents Ltd [2011] UKUT 285 (LC); and Hague on Leasehold Enfranchisement, page 456, note 66. [14] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 . [15] York v Casey [1988] 2EGLR 25. [16] [2006] 1 AC 340 . [17] Per Nicholas Strauss QC (sitting as a deputy judge of the High Court) 12 th July 2013, at paragraph 39. See Annex 1 to this decision. [18] It is to be noted that in paragraph 15(5) of the Appellants’ skeleton argument it is stated that this point is a “strong one”. [19] [2011] UKUT 285 LC [20] [2003] 3 EGLR 147. [21] [2013] EWCA Civ 584 . [22] [1998] 31 HLR 209. [23] [2002] Ch 256 , para. 23. [24] (1975) 237 EG 183. [25] [1994] 3 All ER 731 . [26] [2006] 1AC 340 .

Cited in 1 later judgment