[2024] UKUT 400 (LC)

For the appellants Mr Granby focused on the way the FTT expressed its decision in paragraph 7.4 and following, beginning with the words: “…unless and until Avon is able to establish…”. He argued that the FTT has set up a condition precedent to the appellants’ being able to make any charge at all for the electricity to the common parts, and that that was not something the FTT could do in the absence of any such provision in the lease. Moreover, it is not a condition precedent that the appellants can satisfy because they have no means of knowing what is the total electricity usage of the building (including the private usage of all the flats) and therefore cannot show that the solar panels have generated 10% of it. He pointed out that it is necessary for the building to have mains electricity in order to provide back-up for when the sun is not shining and insufficient power is produced by the solar panels; the effect of the FTT’s decision is that the appellants cannot even recoup the standing charge.

Mr Granby also pointed out that there is no obligation at all on the freeholder and management company to use the output from the solar panels to power the common parts. They are free – to take a purely hypothetical example – to devote all the output to operations of their own in the retained parts of the building, or – again hypothetically – to devote just to one individual flat the output from the solar panels installed to service the common parts. There is nothing in the lease or in the planning permission that says the output from the solar panels has to be used to power the common parts nor that the benefit of the solar panels is to be shared between the leaseholders.

As to the shortcomings of Mr Gurvits’ evidence, Mr Granby explained that the case the appellants thought they had to meet was that the respondents were saying they had used the power output for their own ends and pocketed a feed-in tariff. The appellants’ answer to that was that the solar panels connected up to power the common parts were in fact switched off; they had therefore met the respondents’ challenge.

Mr Pilgrim said that the simple issue is that in the respondents’ view they are paying too much for electricity. As to the feasibility of the FTT’s condition, he pointed out that at the hearing before the FTT the appellants had produced certificates from the manufacturers of the solar panels serving the flats indicating that the capacity of each panel, and that it is therefore easy to see what is the production capacity of all the panels and perfectly possible to meet the FTT’s condition.