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The arguments in the appeal
The arguments in the appeal
The appellant’s case
For the appellant, Mr Cockburn expressed the issue in the appeal as follows:
“Should a non-residential part of premises falling within section 72(1) of the Commonhold and Leasehold Reform Act 2002 that is inaccessible to the landlord and unfloored as at the ‘relevant date’ be treated as part of the ‘internal floor area’ of the premises for the purposes of paragraph 1(1) of Schedule 6 to the Act?”
The appellant’s case is that neither the fact that it is unfloored, nor the fact that it is presently inaccessible to the landlord, excludes it from the calculation of the internal floor area of the premises. The appellant also says that the roof voids could potentially be of use to the appellant, contrary to the FTT’s finding, but acknowledges that that by itself is not a sufficient basis on which to set aside the FTT’s decision.
Mr Cockburn argued that while “internal floor area” is not defined in paragraph 1 of Schedule 6, paragraph 1(4) prescribes a methodology for measuring the internal floor of the whole building and of the non-residential parts:
“(4) For the purpose of determining the internal floor area of a building or of any part of a building, the floor or floors of the building or part shall be taken to extend (without interruption) throughout the whole of the interior of the building or part, except that the area of any common parts of the building or part shall be disregarded.”
The language of that provision, said Mr Cockburn, is wide, emphasising the extent of the floor area “without interruption”, “throughout” the building and indeed “the whole of the interior”. The wording permits no gloss by which qualifications may be introduced other than those defined by the statute (such as the exclusion of the common parts). There is no exclusion of parts of the building that do not have flooring or are inaccessible, and no adoption of any extraneous definition of internal floor area such as that of the RICS Code. To imply any such qualifications would be to contradict the express words of the statute, which is an illegitimate approach to statutory construction (R (Ball) v Hinckley & Bosworth Borough Council [2024] PTSR 1344, where the Court of Appeal referred to Bennion at page 426, “An implication cannot properly be found which goes against an express statement”).
Mr Cockburn referred to the respondent’s reliance on the RICS definition of “floor area” in Property Measurement 2nd ed :
“The area of a normally horizontal, permanent, load-bearing structure for each level of a Building”
and contended that the roof voids have a “floor” that complies with that definition; the notice in the right-hand void refers to “the floor between the joists”, and even if that area will not carry weight it has not been suggested by the respondent that the joists are not load-bearing. The term “floor” does mean a surface for walking on but in addition it is wide enough to encompass the bottom or base of any area.
In any event, according to Mr Cockburn, paragraph 1(4) does not require there actually to be a floor in all parts of the internal floor area. The floors of the building are to be ‘taken to extend”. It is a deeming provision that applies even if the surface for walking upon does not in actual fact extend throughout the whole of the area.
Mr Cockburn argued that the following points also support the appellant’s case:
The use of the definite article in paragraph 1(1) before “internal floor area”, which he said indicates that it is assumed that every non-residential part will have an internal floor area.
The fact that in Indiana Investments it was said that a sealed and completely inaccessible coal vault was to be included in the floor area – albeit that finding was obiter since the judge ultimately found that the vault was not part of the building.
The conclusion in Indiana Investments that the width of non-permanent wall facings (“ashlars”) (which was, in effect, “dead space”) was to be included within the calculation of the internal floor area.
The absence of any reference in paragraph 1(4) of Schedule 6 to the condition of the part being measured. Mr Cockburn suggested that if the respondent’s argument was correct then an RTM company could take advantage of the renovation of commercial premises by serving a s79 notice at a time when the floor had been temporarily lifted.
The appellant’s construction is consistent with the only other use of the term “internal floor area” in the 2002 Act. Section 103(4) uses it as the reference point by which the proportion of service charges payable by a lessee who is not a qualifying tenant is calculated as follows:
“the appropriate proportion in the case of each such person is the proportion of the internal floor area of all of the excluded units which is internal floor area of the excluded unit in relation to which he is the appropriate person.”
If that calculation were dependent upon there being a particular “floor covering”, as Mr Cockburn put it, a tenant could escape liability for contributions to the service charge by stripping out the flooring during a period of non-occupation. That is clearly contrary to the scheme of s103.
Mr Cockburn then turned to the other aspect of the FTT’s finding, namely that the landlord would not have been able to use the roof voids even if it had access to them. It is not in dispute that the appellant has applied for planning permission to replace the butterfly roof with a mansard arrangement and to use the resulting space for storage, gaining access through the partition from number 309. Permission has been refused, but it may be sought again. The current condition of the right-hand roof void does not prevent flooring being laid and the space being used for such purposes as storage.