[2024] UKUT 399 (LC)

The premises which are subject of the RTM application is a building known as the Piano Works, at Nos. 28-34 Fortess Road, London NW5 (the Premises). The Premises are part of a longer terrace of early nineteenth century buildings and were formerly in commercial use but in 2013 they were converted to create nine flats on four floors. The Premises sit on the corner of Fortess Road and Fortess Grove and are connected on one side to the adjoining terrace in Fortess Road and, at the rear, to mews style buildings in Fortess Grove.

A claim notice was given to the appellant by the respondent in September 2023 and at the same time copies were sent to the appellant’s managing agent, Eagerstates Ltd, and to its solicitors, Scott Cohen. Scott Cohen responded on the appellant’s behalf by serving a counternotice disputing the acquisition on three grounds. Two of these grounds raised essentially the same point concerning the service on the owner of one of the flats of a notice inviting participation. The third ground challenged the whole basis of the application by disputing that the Premises were premises to which Part 2 of the Act applied. When the respondent’s solicitors asked for further details of that contention, they were told by the appellant’s solicitors on 23 November 2023 that “the building appeared to include a self-contained part which was in different freehold ownership” so that it was excluded from the right to manage by section 72(6) and paragraph 2 of Schedule 6 to the Act. Section 72(6) gives effect to Schedule 6, which excludes buildings with self-contained parts in different ownership from the right to manage.

An application was then made by the respondent to the FTT seeking a determination that the right to manage had been acquired. Directions were given in that application and, pursuant to those direction, Scott Cohen filed a statement of case on 14 February 2024. In it the original three grounds of objection were reduced to the single objection that the premises were not premises to which the right to manage provisions of the Act applied. That was because Nos. 20 and 22 Fortess Road were in different ownership and “from inspection it appears that the buildings are structurally connected”. The single issue was said to be “whether 20, 22 and 28-34 are all self-contained parts by reason of which the exclusion in section 72(6) would apply”.

The right to manage applies only to a self-contained building or part of a building (section 72(1)). A building is only self-contained if it is structurally detached (section 72(2)), and part of a building is only a self-contained part if it constitutes a vertical division of the building which could be redeveloped independently of the rest of the building and has services (water, electricity etc) which are either independent of the rest of the building or could be made independent without significant interruption (section 72(3)-(4)).

The appellant’s statement of case identified Nos. 20 and 22 Fortess Road as the buildings to which the premises were thought to be structurally connected. Scott Cohen supported the proposition that those buildings were in different ownership by exhibiting copies of the register of title applicable to each of them which did indeed show that Nos. 20 and 22 Fortess Road were not owned by the appellant. But it is apparent that Scott Cohen were acting at this stage under a misconception. The entries from the register of title did not include the title plans for the two properties, but the statement of case referred to and attached an annotated aerial photograph of the Premises on which had been marked the two properties which were said to give rise to the self-containment issue. The buildings marked were Nos. 21 and 22 Fortess Grove (not Road), the two mews style properties at the rear of the Premises.

One mistake often begets another and when the respondent’s solicitors responded to the appellant’s statement of case with a statement in reply on 6 March, they too referred incorrectly to the mews properties as Nos. 21 and 22 Fortess Road. But they did exhibit the registers of title for Nos. 20 and 21 Fortess Grove (neither of which is owned by the appellant) together with the title plans. Despite the confusion on the pleadings over addresses, the aerial photograph and title plans which the parties each relied on demonstrate a clear consensus that the only issue was whether or not the Premises were connected to the mews houses in Fortess Grove in such a way as to render them a self-contained building or a self-contained part of a building.

When it filed its statement of case the appellant asked the FTT for permission to rely on expert evidence to deal with the extent of the structural connection between the adjoining buildings to ascertain whether the necessary test of self-containment was satisfied. The respondent objected to that application and the FTT refused the request on 19 March. It took the view that the issue depended on findings of fact rather than expert evidence.

The FTT’s procedural directions allowed (but did not require) the appellant to answer the respondent’s statement of case in reply by 27 March, but Scott Cohen did not take up that opportunity and the dispute remained as framed by the documents already filed.

The FTT’s directions did not provide for the service of witness statements and the appellant had been refused permission to rely on the evidence of a surveyor. As yet no evidence had been filed by either party dealing in any detail with the issue of self-containment, although the respondent’s reply of 6 March asserted that the Premises were vertically divided and could be separately redeveloped from its neighbours in Fortess Road. A lengthy design and access statement from the 2013 redevelopment of the Premises was supplied to support that assertion including plans of the mews houses.

No further exchanges then took place between the parties after the service of the respondent’s reply on 6 March until 17 April. The directions required the respondent to send a hearing bundle to the FTT and to the appellant by 17 April but on that date, instead of doing so, the respondent’s solicitors sent the FTT a short witness statement from a Chartered Surveyor, Mr Weill. For some reason, which I will assume was inadvertent, the witness statement was not sent to Scott Cohen, the appellant’s solicitors, but only to its managing agent, Eagerstates Ltd, which did not have conduct of the proceedings. It went to them at 4pm on 17 April when they were copied in to an email addressed to the FTT informing it, incorrectly, that the copy addressee was the appellant’s solicitor.

Mr Weill’s witness statement dealt with the issue of self-containment and supported the respondent’s case that the Premises were vertically divided from the mews houses and could be separately developed. No reference was made in it to the documents which had been exhibited to the respondent’s reply of 6 March, but a plan showing the ground floor layout of the mews properties was annexed, together with historic plans showing that the various buildings had been constructed at different times.

17 April was a Wednesday; the following Monday, 22 April, was the first day of the Jewish Passover, a Jewish religious holiday kept by the appellant’s directors and which lasts for seven days.

At some point Mr Weill’s witness statement was forwarded by the appellant’s managing agents to its solicitors, Scott Cohen. On Thursday 25 April, shortly after midday, Scott Cohen sent an email to the FTT and to the respondent’s solicitors informing them that they had received instructions that the counter-notice of 18 October 2023 was withdrawn. They invited the respondent to consent to the withdrawal of the application.

The respondent’s solicitors answered that request after 5pm on 25 April. They did not agree to withdraw the application, but instead sought confirmation that the appellant accepted the respondent’s entitlement to acquire the right to manage. Not having had an immediate response to that request, the respondent’s solicitors informed the FTT that they still required the hearing to go ahead on the following Monday, 29 April. At 4.58pm on Friday, 26 April, the respondent’s solicitor notified Scott Cohen by email that they would seek a determination from the FTT and that they intended to seek their costs of the proceedings “due to the unreasonable approach taken by your client”. At 5.40pm Scott Cohen confirmed, for the avoidance of doubt, that the appellant agreed the respondent was entitled to acquire the right to manage. This acknowledgement was subsequently taken by the FTT as the date from which the three month period prescribed by section 90(5), 2002 Act began to run, so that the acquisition date for the respondent’s right to manage became 27 July 2024.