[2024] UKUT 383 (LC)

For the respondent, Mr Gallagher contended first that in a literal construction of the statute, to be part of the internal floor area of the building a space must have a floor. The roof voids do not, and that alone, he said, was sufficient to uphold the FTT’s conclusion.

Beyond that, Mr Gallagher argued that the term “internal floor area” must “import a limitation or qualifying criterion”, namely that areas of no practical use are excluded. That is essential, he said, to avoid an absurd result. It cannot be right to include, for example, a void beneath the ground floor, too shallow for use as a cellar, a roof void with a height of only a few inches, or the floor area created by adding a false floor part-way up the height of a room. Without some limitation, some “de minimis” qualification, absurd results would follow and the way to avoid that and to achieve the purpose of the statutory provision is to exclude areas that cannot be used.

Mr Gallagher pointed out that Schedule 6, paragraph 1, requires an assessment of the building by taking a snapshot in time; what matters is its condition now, not what might be done in the future if the building were developed.