Albion Residential Ltd v Albion Riverside Residents RTM Company Ltd [2014] UKUT 6 (LC)

IN THE MATTER OF AN APPEAL AGAINST A DECISION

UT Neutral citation number: [2014] UKUT 6 (LC)

Venue OF THE LEASEHOLD VALUATION TRIBUNAL FOR THE, LONDON RENT ASSESSMENT PANEL, BETWEEN ALBION RESIDENTIAL LIMITED (1), ALBION RIVERSIDE COMMERCIAL LIMITED (2), ALBION PROPERTIES LIMITED (3) Appellants, and, ALBION RIVERSIDE RESIDENTS RTM COMPANY LIMITED Respondent, Main Building, Albion Riverside, 8 Hester Road, London SW11 4AR, Before: Martin Rodger QC, Deputy President and P R Francis FRICS, Sitting at: 43-45 Bedford Square, London WC1B 3AS, on, Anthony Radevsky , instructed by Hutchison Whampoa Properties (Europe) Ltd for the appellants, Phillip Rainey QC and James Fieldsend , instructed by Albion Riverside Residents’ Management Co Ltd for the respondent, The following cases are referred to in this decision:, Gala Unity v Ariadne Road RTM Co Ltd [2013] 1 WLR 988, Parsons v Trustees of Henry Smith’s Charity [1974] 1 WLR 435, Fairhold (Yorkshire) Limited v Trinity Wharf (SE16) RTM Co Ltd [2013] UKUT 503 (LC), No.1 Deansgate (Residential) Ltd v No.1 Deansgate RTM Ltd [2013] UKUT 580 (LC), DECISION

Between

Albion Residential Ltd

Albion Riverside Residents RTM Company Ltd

Date 18 November 2013

[1]Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) created a statutory right to manage which is exercisable in respect of premises to which the Chapter applies. By section 72(1)(a) of the 2002 Act the conditions which must be satisfied for the Chapter to apply to premises include that “they consist of a self-contained building or part of a building with or without appurtenant property”. That condition is supplemented by section 72(2) which provides that a building is self-contained if it is “structurally detached”.

[2]This appeal concerns the application of that apparently simple condition to a visually striking and structurally complex modern building located on the south bank of the Thames adjoining Battersea Bridge in central London. Referred to prosaically as “Main Building”, the subject of the appeal is one of three buildings in a development known as Albion Riverside at Hester Road, London SW11; we will refer to it as “the Building”.

[3]The appeal is brought with the permission of the leasehold valuation tribunal for the London Rent Assessment Panel (“the LVT”), against its decision of 28 November 2012 that the respondent, Albion Riverside Residents RTM Company Ltd was entitled to acquire the right to manage the Building following the service of a claim notice under section 79 of the 2002 Act on 29 June 2012. The claim notice identified the premises which are the subject of the claim as “Main Building, Albion Riverside, Hester Road, London” and asserted that those premises “consist of a self-contained building”. The appellants are the owners of the freehold interest in the Albion Riverside development and they contend that the Building does not consist of a self-contained building because it is not structurally detached from other parts of the development and hence it is not premises over which the right to manage can be acquired.

[4]The suggestion that Chapter 1 of Part 2 of the 2002 Act might not apply to the Building, because it might not be structurally detached, had not occurred to the appellants or their advisers when they served a counter-notice under section 84 on 6 August 2012 disputing the respondent’s entitlement to acquire the right to manage. A different point was taken in the counter-notice, which is not now pursued, but the more fundamental point was not mentioned until after the respondent had applied to the LVT under section 84(3) of the 2002 Act, on 20 August 2012, for a determination that it was, indeed, entitled to acquire the right to manage the Building.

[5]The appellants were represented before us by Mr Anthony Radevsky, and the respondent by Mr Philip Rainey QC and Mr James Fieldsend. We are grateful to counsel for their comprehensive written and oral submissions. The issues 6. The appeal raises two distinct issues:(1) Are the appellants entitled to dispute the respondent’s claim to acquire the right to manage on the ground that the Building is not a self-contained building, when that contention was not mentioned in the counter-notice? (‘The counter-notice issue’)

(2) If the appellants succeed on the counter-notice issue, is the Building a self contained building within section 72(1) of the 2002 Act, and so capable of constituting premises to which the right to manage provisions apply? (‘The premises issue’)”

[7]In its decision of 28 November 2012 the LVT determined the counter-notice issue in the appellants’ favour, holding that they were not precluded from raising the premises issue by reason of its not having been mentioned in the counter-notice and adding further that, in the LVT’s view, the respondent had not been prejudiced by that omission. The LVT then considered and determined the premises issue in favour of the respondent and held that the Building was within the description in section 72 of the 2002 Act of premises over which the right to manage could be acquired. It reached that conclusion after referring to a recent decision of the Court of Appeal in Gala Unity v Ariadne Road RTM Co Ltd

[2013] 1 WLR 988

, which it drew to the attention of counsel and which it considered was determinative of the premises issue in the respondent’s favour.

[8]As a result of its conclusion on the premises issue, the LVT determined that the respondent was entitled to acquire the right to manage the Building. In responding to the appeal, Mr Rainey QC and Mr Fieldsend have not sought to uphold the LVT’s decision by relying on Gala Unity in the way it was deployed by the LVT . They agreed with Mr Radevsky that Gala Unity was concerned with a different issue, namely the treatment of appurtenant property utilised by two self-contained buildings. Nonetheless they contend that the LVT’s conclusion on the premises issue was correct and that the appeal should be dismissed. They also assert that the LVT was wrong to allow the appellants to raise the premises issue and ought to have determined the counter-notice issue differently by holding that on an application brought by an RTM company under section 84(3) of the 2002 Act a landlord is confined to points specifically raised in its counter-notice. The statutory provisions 9. Chapter 1 of Part 2 of the 2002 Act makes provision for the acquisition and exercise by an RTM company of rights in relation to the management of premises to which the Chapter applies which are referred to in section 71(2) as “the right to manage”. The premises to which the Chapter applies are identified in section 72 which, so far as is material to this appeal, provides:

“72(1) This Chapter applies to premises if – (a) they consist of a self-contained building or part of a building, with or without appurtenant property, (b) - (c) … (2) A building is a self-contained building if it is structurally detached. (3) A part of a building is a self-contained part of the building if – (a) it constitutes a vertical division of the building, (b) the structure of the building is such that it could be redeveloped independently of the rest of the building, and (c) subsection 4 applies in relation to it. (4) This subsection applies in relation to a part of a building if the relevant services provided for the occupiers of it – (a) are provided independently of the relevant services provided for occupiers of the rest of the building, or (b) could be so provided without involving the carrying out of works likely to result in a significant interruption in the provision of any relevant services for occupiers of the rest of the building. (5) Relevant services are services provided by means of pipes, cables or other fixed installations.”

The expression “appurtenant property” which is used in section 72(1)(a) is defined in section 112(1) to mean, in relation to a building:

“… any garage, outhouse, garden, yard or appurtenances belonging to, or usually enjoyed with the building…” 10. The statutory procedure for the acquisition of the right to manage is initiated, as far as the landlord of premises is concerned, by the service of a claim notice under section 79(6) of the 2002 Act by the RTM company asserting the right. The recipient of a claim notice may then give a counter-notice under section 84, which provides: “Counter-notices 84(1) A person who is given a claim notice by a RTM company under section 79(6) may give a notice (referred to in this Chapter as a “counter-notice”) to the company no later than the date specified in the claim notice under section 80(6). (2) A counter-notice is a notice containing a statement either – (a) admitting that the RTM company was on the relevant date entitled to acquire the right to manage the premises specified in the claim notice, or (b) alleging that, by reason of a specified provision of this Chapter, the RTM company was on that date not so entitled, and containing such other particulars (if any) as may be required to be contained in counter-notices, and complying with such requirements (if any) about the form of counter-notices, as may be prescribed by regulations made by the appropriate national authority. (3) Where the RTM company has been given one or more counter-notices containing a statement such as is mentioned in subsection (2)(b), the company may apply to a leasehold valuation tribunal for a determination that it was on the relevant date entitled to acquire the right to manage the premises.”

The premises issue

[11]The appeal proceeded before us as a review with a view to re-hearing, the Tribunal (George Bartlett QC, President) having given permission for expert evidence to be adduced on the premises issue. The LVT did not have the benefit of expert evidence (and did not inspect the Building) but before us the appellants called Mrs Deborah Lazarus MA FICE IStructE, a structural engineer and Associate Director within Arup Advanced Technology and Research, a specialist group within Arup Consulting Engineers. Mrs Lazarus produced a report explaining the construction of the Building and gave oral evidence which was helpful and largely uncontroversial. We were also provided with a comprehensive set of A3 floor plans and elevations, various engineering reports and a portfolio of photographs.

[12]Although the parties had been unable to agree a statement of facts, there were no significant factual disputes, and having considered the report of Mrs Lazarus and the other material included in the hearing bundle, and having carried out an inspection of Albion Riverside on 21 November 2013, we base our consideration of the issues on the following facts. Facts

[13]Albion Riverside comprises an imposing and modernistic mixed commercial and residential development located on the south bank of the River Thames in Hester Road, Battersea, London SW11 immediately due west of Battersea Bridge Road. The principal part of the development comprises the Building and “Building 1” which lie on the north side of Hester Road.

[14]The Building has a “C” shaped footprint and is of predominately concrete framed construction with an impressive ground floor core entrance lobby accessing lifts and stairs to 185 residential units on 7 floors of luxury apartments and two further penthouse floors above. It is these units, together with basement car parking spaces allocated to them and a ground floor swimming pool complex, gymnasium and other common areas, to which the RTM application applies. There are, in addition, office units at ground and a small part of the first floor within the western part of the Building (having their own separate entrances); to the east are the development’s administration offices, further commercially let office accommodation. The Building lies atop a very large basement car park which extends well beyond its own footprint to include the area below Building 1 and below a large part of the contiguous piazza, walkways and lawned grounds surrounding the buildings. The car park area also incorporates the plant rooms and the base of the service and lift cores for Main Building, the commercial areas and for the adjacent Building 1 lying to the west. That building has commercial units at ground floor with five storeys of housing association flats above.

[15]Building 2 (Hutchison House), which lies on the south side of Hester Road, is entirely commercial and it is common ground that it is completely separate from the Building and Building 1. The LVT’s approach 16. The evidence before the LVT included a letter from Arup (the engineering consultancy responsible for the technical aspects of the building’s construction) dated 10 October 2012 which confirmed that:

“… the Main Building and Building 1 together with the underground car park were constructed at the same time as a single structural entity. The common basement parking structure is integral with that of the Main Building and Building 1 above, that is monolithic across both the ground floor and basement floor slab structures. 17. The LVT said, at paragraph 32: “32. The Tribunal accepted the evidence contained in the letter from Arup but had the question of structural detachment been vital to our decision, we would have invited the parties to consider adducing expert evidence on the matter. As it is, we make no finding on whether or not the Main Building was structurally detached from the car park but we proceed to determine the case on the assumption that it was not structurally detached from the car park.”

They continued:

“33. In our view all previous cases must now be looked at in the light of Gala [ Gala Unity v Ariadne Road RTM Co Ltd [2013] 1 WLR 988 ] where Sullivan LJ states: ‘In my judgement, the wording of section 72(1)(a) is clear; there is no requirement that the appurtenant property should appertain exclusively to the self-contained building which is the subject of the claim to acquire the right to manage.’ 34. On the basis of Gala our view is that this case is now clear cut. The underground car park is appurtenant property being a ‘garage’ – which is specifically referred to in section 112 of the Act and the Main Building is a self-contained building (with the car park being appurtenant property) within section 72(1)(a) of the Act.”

The expert evidence

[18]Mrs Lazarus said that she had been instructed to express her professional opinion on whether or not the Building is structurally detached from the basement car park beneath it, and from Building 1. When the Building was under construction, her firm, Arup, had been appointed as engineers for the structural and building services design together with wind, fire and acoustic engineering matters for the development, and she therefore had access to all relevant documentation including scheme design and engineering reports and detailed construction plans. She had also undertaken an inspection of the development in April 2013.

[19]In construction terms, Mrs Lazarus confirmed that the basement car park and plant rooms are constructed as a single “box” with a waterproof perimeter wall which is propped by the basement and ground floor slabs. The buoyancy effect which would occur due to ground water pressures is countered by the self-weight of the superstructure to the two buildings that lie above it. It was noted that there are no vertical or horizontal movement joints in the area of the basement between Main Building and Building 1 which would suggest any form of structural interdependence between them. Access to the basement by vehicles is from a single ramp below Building 1; pedestrian access is by four separate cores providing lifts and staircases together with lateral support to the structures above,

[20]The distinctive V pillars which are exposed externally and form a significant architectural feature of the building are load bearing and generate tie-forces that transfer through vertical pillars passing through the car park onto the supporting piles beneath.

[21]Having described the detail and technical aspects of the construction, Mrs Lazarus concluded that “the basement is a single structure within the Albion Riverside development and is both structurally and functionally integral with the buildings above it.” The stability of both buildings relies upon the transfer of forces into the basement structure at ground level. The development was, she said, planned, designed and constructed as a single integrated structure. The Building could not be described as independent of the basement and whilst it is separated from Building 1 above ground level, they are integral at, and below, ground level.

[22]In cross-examination Mrs Lazarus said that her statement that the buildings are “functionally integral” was a reference to the pipework, service ducts, fire control systems and other common services that are integral to both the Building and Building 1 and, in some respects, to Hutchison House also. Submissions on the premises issue

[23]Mr Radevsky submitted on behalf of the appellants that the LVT erred in law in deciding the premises issue in favour of the respondent. It was, he submitted, manifestly wrong to determine that the Building was a self-contained building within the meaning of section 72(1)(a) of the 2002 Act. By paragraph 72(2), a self-contained building is one which is structurally detached; the LVT proceeded on the assumption that the building was not structurally detached, sitting as it did on top of part of a large car park which gives it support and which also serves Building 1. The only proper conclusion open to the LVT had been that the Building was not structurally detached, and that therefore it was not a self-contained building to which the right to manage provisions of the 2002 Act applied.

[24]Mr Rainey QC submitted that the words “building” and “structurally detached” are not defined in the 2002 Act and should be given their ordinary meaning. We agree. There was no doubt, Mr Rainey went on, that the Main Building at Albion Riverside was a building within the meaning of section 72(1) of the 2002 Act. When he referred to “Main Building” Mr Rainey clarified that he meant that part of the structure which is at or above ground level, and suggested that “building” ordinarily means “a built structure above ground”. He suggested that would not ordinarily call “the subterranean concrete box of the car park below the Main Building” a “building”. Mr Rainey’s case was therefore based on the premise that the subject of the claim to acquire the right to manage was so much of the structure as was visible above ground, and did not include that which was below ground. Everything below ground was categorised by him as appurtenant property (including the four service cores and the plant rooms).

[25]It was no part of the case advanced on behalf of the respondent that the Building could be regarded as a self-contained part of a building within section 72(3) of the 2002 Act and no evidence was adduced going to that question.

[26]Mr Rainey submitted that the car park at basement level was not part of the Main Building but was rightly regarded by the LVT as appurtenant property, and should therefore be left out of consideration when asking whether the Main Building itself was structurally detached. Gala Unity (and the Tribunal’s recent decision in Ninety Broomfield Road RTM Company Ltd v Triplerose Ltd

[2013] UKUT 606 (LC)

) were relevant in that they demonstrated that the existence of shared appurtenant property and the prospect of overlapping management functions was not an obstacle to the acquisition of the right to manage.

[27]Mr Rainey referred to the use of the expression “structurally detached” in section 2 of the Leasehold Reform Act 1967, which had been considered by the House of Lords in Parsons v Gage (Trustees of Henry Smith’s Charity)

[1974] 1 WLR 435

. Lord Wilberforce thought that the meaning of the expression was reasonably plain saying (at page 439) ““Structurally detached” means detached from any structure”. The context of section 72(1) of the 2002 Act, and in particular the identification of a “self contained part” of a building in section 72(3) as one which constitutes a “vertical division”, demonstrated that structural attachment was concerned only with vertical division i.e. with whether a building was detached from other buildings on either side, and not with its footings and foundations.

[28]In Mr Rainey’s submission section 72 of the 2002 Act should be given a purposive construction consistent with Parliament’s apparent intention that residential premises which are self contained and capable of being managed as a discrete unit should be so managed by the long leaseholders of flats in the premises. Discussion and conclusion

[29]The principal issue for us to determine is whether or not the premises in respect of which the right to manage is claimed comprise a self-contained building. To satisfy that description the building in question must be “structurally detached” within the meaning of section 72(2) of the 2002 Act. That is an issue of fact which depends on the nature and degree of attachment between the Building and other structures.

[30]We agree with Mr Radevsky that the statutory language speaks for itself and that it is neither necessary nor helpful for a tribunal considering whether premises are structurally detached to reframe the question in different terms. The decision of the House of Lords in Parsons v Gage was not concerned with the 2002 Act and did not purport to lay down a test of general application wherever the expression “structurally detached” is employed in a statute; on the contrary Lord Wilberforce was considering a specific submission made in the context of a particular set of facts. In No.1 Deansgate (Residential) Ltd v No.1 Deansgate RTM Ltd

[2013] UKUT 580 (LC)

the Tribunal (Judge Huskinson) has recently dismissed an appeal based on the proposition (said to be derived from Lord Wilbeforce’s dictum in Parsons ) that any degree of connection between the building in question and any other structure would be sufficient to prevent it from being structurally detached.

[31]In order to consider whether premises are a building which is structurally detached, it is first necessary to identify the premises to which the claim relates. Until the premises have been clearly identified one cannot begin to consider whether they are a building or part of a building or whether they are structurally detached.

[32]In this case it is submitted by the respondents that the claim relates only to so much of the structure as is at or above ground level and does not include the car park or service cores beneath. Nonetheless it is submitted that the claim does not relate to a structurally detached part of a building. On the facts of this case we regard those submissions as quite inconsistent with each other. We have described the Building in some detail above and it is clear to us that as a matter of ordinary language the “building” with which this claim is concerned does not begin at ground level. It includes the entirety of each of the four reinforced concrete cores which rise from basement level to the tenth floor; it includes the plant and service rooms clustered around the two central cores at basement level and which extend south towards Hester Road beyond the ground floor footprint of the Building; it includes the structural “V” columns between the ground and second floors and the vertical continuation of those columns below ground level into the car park which create a “Y” shape; it includes at least that part of the continuous concrete slab at ground floor level which lies within the ground floor footprint of the Building itself; the same concrete slab forms the external piazza over part of which the Building arches or overhangs and eventually forms the ground floor of Building 1; finally, the Building includes part of the continuous concrete raft at basement level on which its supporting columns stand and which forms the floor of the four cores and the service and plant rooms.

[33]The next step in the inquiry is to ask whether the building which has been identified as the subject of the claim is self-contained i.e. is it structurally detached? The Building, as we have described it above, is not structurally detached at ground or basement level from the continuous concrete slabs which form the floor and ceiling of the underground car park. We agree with Mr Rainey that the car park itself would not ordinarily be regarded as part of the Building (although that part of it which lies beneath the structure of the Building probably would be); but that is not the issue. The issue is whether the Building is structurally detached from the car park and from any other structure. In circumstances where continuous concrete structures - the ground and basement floor slabs - are major and integral components both of the Building and of the car park, the piazza and Building 1, it is not possible in our judgment to regard the Building as structurally detached.

[34]We do not accept Mr Rainey’s submission that, as a matter of ordinary language, a building comprises only so much of a built structure as is visible above ground level; the ordinary householder whose property includes a basement, or the flat owner who has the use of storage or refuse areas beneath a block of flats would be equally surprised by the suggestion that the basement was not part of their building. But even allowing the respondent to define the subject matter of its claim in that way, the Building so defined includes the upper part of the four concrete cores (from ground to tenth floor level), the upper part of the “Y” shaped struts which appear above ground as a “V” between ground and second floor level), and so much of the continuous concrete slab at ground level as comprises the ground floor itself. These are all vital building components which are firmly attached to that which is below and around the building as the respondent chooses to define it. The building cores are continuous elements which cannot be divided in structural terms at ground floor level, nor can the massive struts which support the upper floors and which depend for their structural integrity on the supporting leg descending into and through the car park into the pile foundations beneath and invisible at ground level.

[35]We accept Mrs Lazarus’ evidence. As was clear to us from our inspection, the Building cannot not, by any stretch of the imagination, be considered to be structurally detached. Nor is it functionally detached. The car park, which acts as support for the Building which, in turn, acts as a counterweight to stop the car park “box” rising out of the ground, extends far beyond the Building’s footprint and is used to accommodate vehicles for the commercial premises in both buildings and for the housing association flats. The core services are also, obviously, communal and inseparable which, although not relevant to the issue of structural detachment explains (we assume) why it has not been argued that the Building is a self contained part of a larger building.

[36]We do not consider that the respondent is assisted by the adoption of a purposive approach to the construction of section 72(1) and (2). The question of structural detachment is a question of fact and having identified the manner in which the Building has been constructed we can see no more benevolent approach to the statutory language capable of producing a different outcome. No doubt, as Mr Rainey emphasised, the right to manage could be exercised for most practical purposes in relation to the Building either as we have defined it, or as the respondent’s prefer to regard it. Nonetheless Parliament has decided that in this, as in other statutory contexts, it is important for practical reasons to confine the acquisition of the relevant right to buildings which are structurally detached. In that way disputes or uncertainty will be avoided in the event that repairs to shared structural elements are required, or redevelopment is contemplated. It is not fanciful to speculate that during the 999 year terms of the leases of flats in the Building major building elements may have to be the subject of extensive work, including the floor and ceiling slabs in the car park.

[37]The LVT determined the case on the assumption that the Building was not structurally detached from the car park which surrounds it at basement level, and stated expressly that is accepted the evidence of the Arup letter which described the extent of the attachment. It was entitled to proceed on that basis; even without undertaking an inspection it had sufficient material available to it to enable it to have made a clear finding of fact that the Building was not structurally detached. Unfortunately the LVT was then distracted from the relevant question by its consideration of the issue of appurtenant property to which attention had been drawn by the Court of Appeal’s very recent decision in Gala Unity . The LVT considered that the car park was appurtenant property within the meaning of section 112 (which, no doubt, to some extent it is) but it also clearly regarded that designation as sufficient to render irrelevant the fact that the Building is not structurally detached from the car park. It was at that point that the LVT deviated into error.

[38]For premises to come within the right to manage provisions of the 2002 Act they must consist of a self contained building or part of a building with or without appurtenant property. In most cases the application of the statutory condition is likely to produce an obvious answer, but in cases involving complex or unusual buildings, such as those at Albion Riverside, the issue may require systematic consideration which begins by identifying the premises which are said to constitute the building or part of a building to which the claim relates, before considering whether those premises are self-contained in the sense that they are structurally detached. The identification of other property which is appurtenant to the self-contained building or part of a building is a separate exercise which will not arise if the principal subject matter of the claim is not self-contained. If the only case being advanced is that the subject of an RTM claim is a self contained building (and not a self contained part of a building) the existence of another structure which is not itself part of the building but to which the building is structurally attached will be fatal to the claim, and that will be the case whether the attached structure is appurtenant property or not.

[39]Even if the respondent is entitled to define the premises to which the claim relates as only so much of the Building as is visible above ground, it cannot satisfy the requirement that the premises must be a self-contained building by designating the structures below ground level to which the building is clearly attached as appurtenant property.

[40]We are therefore satisfied that the LVT was wrong to decide that that the Building was a self-contained building within the scope of section 72(1)(a) of the 2002 Act. The Building is not self-contained for the reasons we have given above. It has never been suggested by the respondent in this application that the Building might alternatively qualify as a self-contained part of a building for reasons which were not explored before us in any detail. The only remaining question, therefore, is whether the appellants were entitled to raise the premises issue at all, having not identified it in their counter-notice. The counter-notice issue

[41]In a decision published after the LVT’s decision in this case, Fairhold (Yorkshire) Limited v Trinity Wharf (SE16) RTM Co Ltd

[2013] UKUT 503 (LC)

, the Tribunal (Sir Keith Lindblom, President) determined the counter-notice issue in the same way as the LVT had done. The Tribunal rejected the submission made on behalf of an RTM company that it is incumbent on the recipient of a claim notice given under section 79(6) of the 2002 Act to raise in its counter-notice every challenge to the claim which it wants the LVT to consider. That is substantially the same case as is advanced on behalf of the respondent in this appeal. The Tribunal’s reasons for rejecting it were explained by the President at paragraphs 34 to 36 of his decision, as follows:

“34. In the first place, there is no statutory requirement to that effect. Section 84 does not provide that if an application is made by the RTM company under section 84(3) a counter-notice is to be treated by the leasehold valuation tribunal as delimiting its jurisdiction. Section 84(3) effectively defines the scope of a tribunal’s jurisdiction as being to determine whether the RTM company was “on the relevant date entitled to acquire the right to manage the premises”

. That is its statutory remit. There is no provision in section 84, or elsewhere in the 2002 Act, whose effect is to confine that jurisdiction to the contents of the counter-notice that has prompted the RTM company to apply for a determination of its entitlement to acquire the right to manage. 35. In my view it is a perfectly legitimate point for a landlord to take in opposing a claim to acquire a right to manage its premises that the procedures prescribed in the 2002 Act and the 2010 regulations have not been correctly followed. This may include the contention that either the notice of invitation to participate required by section 78 or the claim notice required by section 79, in accordance with the requirements in section 80, is materially defective and thus invalid. It is, of course, desirable that such a point should be taken at the earliest opportunity and should, if possible, be raised in the counter-notice given under section 84. But this is not to say that a tribunal can avoid the task of satisfying itself that the statutory procedures have been correctly followed if the point is taken only after the counter-notice has been served, as it was in this case – in the appellant’s statement of case. 36. I would add that, in my view, a tribunal may consider the procedural integrity of the right to manage process, whether or not this has been raised by any of the parties active in the process. There is nothing in the statutory provisions to suggest that a tribunal may not act on its own initiative in that way, provided, of course, that its procedure is fair throughout and, therefore, that the parties are given a reasonable opportunity to present any relevant evidence or submissions.”

[42]Mr Rainey QC was moderate and realistic in his submission that the Tribunal ought not to follow Fairhold. It is of course open to the Tribunal to depart from its own decisions, even very recent decisions delivered after receiving full argument, but it will not do so unless it is satisfied that the earlier decision was wrong.

[43]Mr Rainey argued that the Tribunal in Fairhold had not given sufficient consideration to the position where no counter-notice is given at all and that, had it done so, it would have recognised that the right to manage can be acquired in the absence of a counter-notice, even where the building does not qualify as premises to which Chapter 1 of Part 2 of the 2002 Act applies. He suggested that as the right to manage interferes with the rights of third parties, it is essential for the extent of any dispute to be identified as soon as possible, and that it is the function of the counter-notice to define the parameters of the dispute. Rather than require an RTM company which receives no response to its claim notice to seek a determination from the court or tribunal that it is entitled to exercise the right to manage, Parliament has enacted that in default of a counter-notice which identifies valid grounds of challenge the right will be acquired. It follows, Mr Rainey submitted, that if a counter-notice is served the only challenge which stands in the way of the acquisition of the right to manage is the specific challenge identified in the counter-notice.

[44]We do not accept these submissions, and intend to follow the Tribunal’s decision in Fairhold . We do not accept that inaction on the part of the recipient of an invalid claim notice can result in the acquisition (and deprivation) of rights in circumstances which do not come within those to which Chapter 1 of Part 2 of the 2002 Act applies. If a claim notice is invalid because it relates to a building which is not self-contained, or because it is given by leaseholders who are too few in number or who are not qualifying tenants, or if for any other reason the qualifying conditions set out in section 72 are not satisfied, none of the provisions in the remaining sections of Chapter 1 have any application. The satisfaction of the qualifying conditions is essential to the jurisdiction of the LVT to make a determination of entitlement under section 84(3). Where an issue going to the jurisdiction of a first instance tribunal is raised in proceedings before it, or where the same tribunal itself identifies such an issue, it is entitled to investigate it and to determine it subject to the safeguards identified by the Tribunal in paragraph 36 of Fairhold.

[45]For these reasons we conclude that the LVT was right to permit the premises issue to be raised before it despite the fact that it had not been identified in the appellants’ counter-notice.

[46]The appeal is therefore allowed. Martin Rodger QC, Deputy President Paul Francis FRICS 14 January 2014

Cited in 11 later judgments

and 2 more of the most senior