Samantha Tibber v Declan Buckley and Another
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Lord Justice McCombe,Lord Justice Jackson |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1294 |
| Docket Number | Case No: C3/2014/2012 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 December 2015 |
[2015] EWCA Civ 1294
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (LANDS CHAMBER)
Judge Edward Cousins
[2014] UKUT 0074 (LC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice McCombe
and
Sir Colin Rimer
Case No: C3/2014/2012
Benedict Sefi (instructed by Derrick Bridges & Co) for the Appellant
Nicola Muir (instructed on a Direct Access basis) for the Respondents
Hearing date: 12 November 2015
Introduction
The appellant is Samantha Tibber. The respondents are Declan Buckley and Matthew Willcox. The appeal is against a decision dated 19 February 2014 by the Upper Tribunal (Lands Chamber) (Judge Edward Cousins) ('the Upper Tribunal') dismissing Ms Tibber's appeal against a decision of the Leasehold Valuation Tribunal for the London Rent Assessment Panel (Professor J. Driscoll and Mrs Sarah Redmond MRICS) ('the LVT') dated 21 January 2012. Mr Buckley and Mr Willcox ('the applicants') were the applicants before the LVT and Ms Tibber the respondent.
The dispute concerns a residential building comprising three flats at 32 Petherton Road, London N5 ('the building'). Ms Tibber is the registered proprietor of the freehold (Title Number 299994). Mr Buckley has a long lease of Flat A and Mr Willcox a long lease of Flat B. Flat C is let by Ms Tibber on an assured shorthold tenancy. On 26 July 2010 the applicants served a notice claiming to acquire the freehold of the building under the provisions of the Leasehold Reform Housing and Urban Development Act 1993 ('the 1993 Act'). On 27 September 2010 Ms Tibber served a counter-notice admitting their right to do so (but not agreeing the proposed price), making proposals for a leaseback to her of Flat C and claiming the right to undertake the future development of Flat C, including by converting it into two units.
The issues for the LVT were as to the physical extent of the premises to be comprised in the leaseback to Ms Tibber; whether and, if so, to what extent the leaseback should be on terms departing from those provided for by Part IV of Schedule 9 to the Act; and the resolution of other differences between the parties as to the terms of the leaseback of Flat C. The LVT decided that the premises to be demised by the leaseback were Flat C 'as it currently exists' together with certain rights over the common parts and the front garden area and on terms following those set out in Part IV but including a covenant against the making of alterations by the lessee without the landlord's consent. The LVT rejected as unreasonable certain departures from the Part IV provisions proposed by Ms Tibber.
On Ms Tibber's appeal, the Upper Tribunal said that the LVT had erred in its approach to the issues and held that the correct solution to them was that the limit of Ms Tibber's entitlement by way of a leaseback was what she had claimed in her counter-notice. To the extent that she was claiming to identify the physical limits of Flat C more broadly than she had in the counter-notice, she was not entitled to do so; nor was she entitled to propose departures from the Part IV provisions when she had not specified them in her counter-notice. The Upper Tribunal dismissed Ms Tibber's appeal.
By her appeal Ms Tibber asserts that neither tribunal below gave proper consideration to her case. She criticised the Upper Tribunal's approach as over restrictive and wrong and criticised both tribunals for having provided insufficient reasons for their decisions. Her case is (inter alia) that (i) she is entitled to a leaseback of the true physical extent of Flat C and that it matters not that the counter-notice did not expressly identify the full limits of what she claims is such extent; (ii) that the Upper Tribunal was wrong to determine that any proposed departures from the Part IV provisions must be specified in the counter-notice; and (iii) that there was no good reason for the tribunals below not to hold her entitled to the lease terms she claimed. The Upper Tribunal refused permission to appeal but Lewison LJ granted it on limited grounds.
The commercial heart of the dispute is Ms Tibber's wish, following the grant of the leaseback, to convert the two upper floors of the building (which include Flat C) into two separate flats, an exercise which would (inter alia) involve changes to the roof structure and a need for the leaseback to include a provision appurtenant to Flat C for the placing of a sufficient number of waste bins at street level in the garden area at the front of the building. Ms Tibber wants a leaseback of premises that will entitle her to carry out such a development – whether or not the applicants agree with her proposals – but subject, however, to the need to obtain their consent (as the 'nominee purchaser') to any structural changes to the building, such consent not to be unreasonably withheld. The effect of the decisions of the tribunals below is that she will not be able to carry out the development without the agreement of the applicants.
The appeal raises general questions as to the requirements imposed by the 1993 Act in relation to the making in a counter-notice of proposals by the freeholder for a leaseback of a flat or other unit in a building; and particular questions as to the effect of the leaseback proposals made by Ms Tibber in her counter-notice. Before coming to the issues I shall: (i) explain the structure of the building and summarise the material provisions of the existing leases; (ii) refer to the material provisions of the 1993 Act; (iii) refer to the notice and counter-notice that the parties served; (iv) summarise the decision of the LVT; and (v) summarise the decision of the Upper Tribunal.
The building and the existing leases
The building is a five-floor terraced house within which three flats have been constructed. Flat A is in the basement and on the ground floor and was on 30 August 1978 the subject of a 99-year lease dated 30 August 1978. Its main entrance is from the communal hall at ground floor level but it has its own separate entrance in the basement. Its gross internal area ('GIA') is about 1,200 square feet. The demised premises were described in the lease as 'the lower maisonette comprising the semi-basement and ground floor of the building … up to and including the ceiling of the ground floor and the internal and external walls up to the same level and the foundations thereof' and also 'the garden land situate at the rear of the building and the area at the front of the building …'. The front area here referred to is a basement area: it is not part of the front garden of the building, which is at street level. The rights granted to the lessee included the right of passage on foot over the common parts of the building in common with the landlord and other occupiers. By clause 3 of and paragraph 5 of the 'Schedule of Tenant's Further Covenants' to the lease, the tenant covenanted to keep the interior and exterior of the demised premises in good condition and substantial repair and also, every three years, to paint such exterior parts as ought to be painted. On 15 November 2006, Mr Buckley surrendered the 1978 lease to Ms Tibber, who granted him a new 161-year lease from 24 June 2006 on (so far as material) the same terms as the 1978 lease. The 2006 lease is registered under Title Number NGL876289.
Flat B is a first floor flat and is subject to a 99-year lease dated 26 September 1984. Its GIA is about 492 square feet. The demised premises were described in the lease as '… the first floor flat of the Building … including the floor of the flat and joists upon which the floors are laid and including the materials forming the ceilings of the flat but not the joists to which such ceiling is attached and the internal and external walls between the first floor and the second floor levels …'. The rights granted by the lease include the like rights of passage on foot over the common parts as were granted to the Flat A lessee and 'the right to place and use one dustbin in the area to be provided in the front garden forming part of the building and the right to gain access to such dustbin area over such front garden.' By clause 3 of and paragraph 4 of the 'Schedule of Tenant's Further Covenants' to the lease, the tenant assumed similar obligations to repair the interior and exterior of the demised premises as I have described in relation to the lease of Flat A. Mr Willcox's lease is registered under Title No NGL516465.
Flat C is on the second floor of the building and an additional third floor formed in the loft space. It has dormer windows built out of the roof. Access between its two floors is by an internal staircase. Its GIA is about 1,200 square feet.
The 1978 lease of Flat A and the lease of Flat B were both granted by Ms Tibber's father, John Bottrill, then the freeholder, who retained Flat C. He transferred the freehold to Ms Tibber in 1999, her title as proprietor was registered on 11 January 2000 and at about the same time she moved into Flat C. Ms Tibber occupied Flat C until 2009, when she moved out, and it has since been let by her on one or more assured shorthold tenancies. It was so let at the times both of the service of the applicants' notice to acquire the freehold and her counter-notice. Ms Tibber did not produce to the tribunals below the shorthold tenancy agreement for Flat C and so they were unaware of how the premises comprising Flat C were described in it or what the letting terms were. This court is in the like position.
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