Decision Nº LRX 9 2014. Upper Tribunal (Lands Chamber), 04-12-2014
| Jurisdiction | UK Non-devolved |
| Judge | Martin Rodger QC, Deputy President |
| Date | 04 December 2014 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 9 2014 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2014] UKUT 0541 (LC)
UTLC Case Numbers: LRX/9/2014 & LRX/12/2014
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR WALES
LANDLORD AND TENANT – RIGHT TO MANAGE – whether counter-notice invalid –whether parts of building self-contained – shared water tanks, pumps and pipes – s. 72(3)(c) and s.84(2), Commonhold and Leasehold Reform Act 2002 - Right to Manage (Prescribed Particulars and Forms) (Wales) Regulations 2011- jurisdiction of LVT where no valid counter-notice served – appeals allowed
(1) FAIRHOLD NW LIMITED
(2) OM PROPERTY MANAGEMENT LIMITED Respondents
AND BETWEEN:
(1) FAIRHOLD NW LIMITED
(2) OM PROPERTY MANAGEMENT LIMITED Appellants
and
ST JAMES MANSIONS RTM COMPANY LIMITED Respondent
Re: St James Mansions and St Stevens Mansions
Mount Stuart Square, Cardiff
Before: Martin Rodger QC, Deputy President
Sitting at: Cardiff Combined Court Centre
11 November 2014
Christian J Howells, instructed by Rees, Wood & Terry, solicitors for the appellant in LRX/9/2014 and for the respondent in LRX/12/2014
Justin Bates, instructed by Misbah Khan, solicitor, Peverel Property Management, for the respondents in LRX/9/2014 and for the appellants in LRX/12/2014
© CROWN COPYRIGHT 2014
The following cases are referred to in this decision:Assethold Ltd v 15 Yonge Park RTM Company Ltd [2011] UKUT 379 (LC)
Assethold Ltd v 14 Stansfield Road RTM Company Ltd [2012] UKUT 262 (LC)
Assethold Ltd v 13-14 Romside Place RTM Company Ltd [2013] UKUT 0603 (LC)
Carradine Properties Ltd v Aslam [1976] 1 WLR 442
Elim Court RTM Company Ltd v Avon Freeholds Ltd [2014] UKUT 397 (LC)
Fairhold (Yorkshire) Ltd v Trinity Wharf (SE16) RTM Co Ltd [2013] UKUT 0502 (LC)
Mannai Investment Co Limited v Eagle Star Life Assurance Co Ltd [1997] AC 749
Oakwood Court (Holland Park) Ltd v Daejan Properties Ltd [2007] 1 EGLR 121
Seven Strathray Gardens v Pointstar Shipping & Finance Ltd [2004] EWCA Civ 1669
DECISION
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At the north-west corner of Mount Stuart Square in Cardiff stand two modern apartment buildings, known as St Stephens Mansions and St James Mansions. For the purpose of these proceedings the two blocks have been treated as parts of a single building although it might be more appropriate to regard the structures as comprising two buildings.
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These appeals concern claims by two RTM companies set up by the tenants of the buildings to acquire the right to manage under Part 2 of the Commonhold and Leasehold Reform Act 2002 (the 2002 Act). By a decision made on 7 October 2013 the Leasehold Valuation Tribunal (Wales) determined that the claim by St James Mansions RTM Co Limited succeeded and that it was entitled to acquire the right to manage St James Mansions. By a second decision made on 13 November 2013 the same tribunal dismissed the claim by St Stephens Mansions RTM Co Ltd. The St James Mansions appeal is brought by Fairhold NW Limited, which owns the freehold of both buildings and Om Property Management Limited, which, in its capacity as a management company, is party to the leases of each of the flats in both buildings. The St Stephens Mansions appeal is by the unsuccessful RTM company.
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The issue in the St James Mansions appeal is whether counter-notices given by the landlord and the management company in response to the RTM companies’ notices claiming the right to manage satisfied the requirements of section 84(2) of the 2002 Act. In the St Stephens Mansions appeal the issue is whether the building comprises a self-contained part of a building satisfying the description in section 72(3) of the 2002 Act making it eligible for the acquisition of the right to manage. Permission for both appeals was granted by the Tribunal, having been refused by the LVT.
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At the hearing of the appeal the RTM companies were represented by Christian J Howells of counsel, and the landlord and management company by Justin Bates of counsel.
The facts
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From the decisions of the LVT and the documents which were before it, and from a helpful statement of facts agreed between the parties, I take the following as the basis of my consideration of these appeals.
The buildings
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St Stephens Mansions was constructed along the north side of Mount Stuart Square in about 2002 and comprises 68 flats on five levels. In about 2004 St Stephens Mansions, containing a further 27 flats on four levels, was constructed along the west side of the Square. The buildings abut each other along the west flank wall of St James Mansions to form an inverted L-shape. The two buildings are separated by a movement joint and it was common ground before the LVT that they are capable of vertical division.
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There is a car park at the rear to which access is obtained from Mount Stuart Square through two archways, one passing through each building.
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In one corner of the car park stands a self-contained pump house. A single mains water supply pipe runs underground to the pump house from the highway at Mount Stuart Square. The pipe passes beneath the vehicle entrance archway at St James Mansions, continues below the surface of the car park and emerges above ground within the pump house. The pipe then divides to supply two holding tanks from which water is pumped by a pump set comprising three separate pumps used in rotation. The pumps send pressurised water into a single outflow pipe which divides into two branches before returning underground and exiting the pump house. It is assumed that one branch of the pipe serves St James Mansions while the other leads to St Stephens Mansions.
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The water supplied to the two buildings is metered by a single supply meter located in the pump house. The water bill is apportioned by the management company using an arithmetical formula based on the number of flats in the buildings rather than by any more precise measurement of individual consumption.
Notices and counter-notices
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St James Mansions and St Stephens Mansions each has its own separate RTM company.
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On 29 February 2013 each of the RTM companies gave separate notices claiming the right to manage to the landlord and to the management company. Each claim notice was signed by the same individual who is a director of both companies. No copy of the covering letter or letters which accompanied the claim notices is before the Tribunal but from the responses to them I infer that the claim notices were served on behalf of the RTM companies by the same solicitors.
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On 26 March 2013 counter-notices were given on behalf of the management company by Peverel Property Management, its managing agent. I have not seen those counter-notices and I assume that nothing turns on them. They were almost immediately withdrawn by two letters sent by Peverel on 27 March 2013 and replaced by the counter-notices which have been relied on ever since.
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The counter-notice given by the management company to the St James RTM company arrived under cover of a letter addressed to that company by name, care of its solicitors. The letter was headed “re: St James Mansions …” and included Rees Wood Terry’s own file reference (which I assume had come from the letter under cover of which the solicitors had served the St James claim notice – a different file reference appears on the letter enclosing the St Stephens counter-notice). It was sent by special delivery and by fax.
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The management company’s St James counter-notice was in the form required by regulation 8 (3) of the Right to Manage (Prescribed Particulars and Forms) (England) Regulations 2010 rather than the Right to Manage (Prescribed Particulars and Forms) (Wales) Regulations 2011 (“the 2011 Regulations”). The two forms are very similar, though not identical. No point has been taken by Mr Howells on behalf of the RTM Companies that the use of the English form for premises in Wales was a defect of any consequence.
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The management company’s St James counter-notice began by stating that it was a counter-notice to St James Mansions RTM Company Ltd “Re: St James Mansions”....
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