[2025] UKUT 39 (LC)

The Courtyard, The Studios and The Terrace are parts of the Plaza Boulevard complex of five blocks which I will refer to as “the Estate”. The Estate was developed in phases, and although the individual blocks are separated from each other, each successive phase is structurally attached to a central podium which spans the area between them and to an underground car park beneath the podium which serves them all. It was originally suggested that each block is a self-contained building, but that argument was not pursued before the FTT.

The Estate stands on rising ground, so that the ground level at one end is approximately two floors above ground level at the other end. A single large underground car park lies beneath the Estate and is overlapped by each of the three blocks. The area of the car park beneath each block is not reserved for the exclusive use of the occupants of the block which sits on top of it. Parking spaces are let to tenants of different blocks, and to the public, and tenants of flats in the building have rights of access over the whole car park. It is not clear from the leases of each building how much, if any, of the basement level is demised to the respondents and whether it includes any part of the car park, but I was told that at least some of the leases of spaces in the car park have been registered against the freehold title to the Estate, rather than against the head-leasehold titles of the respondents.

Before the FTT it was common ground that the three blocks were not self-contained buildings and did not satisfy the first limb of section 72(1)(a). They were said to be self-contained parts of a building within the second limb. The unstated assumption is that “the building” of which each block is part comprises either the whole of the Estate or at least those built elements adjacent to each building including the underground car park and the podium deck which connects the buildings at ground floor level.

The extent of the premises over which the right to manage is claimed was not clearly defined in the claim notices which refer to the blocks simply by their postal addresses. The argument before the FTT therefore took an unusual course. Rather than the RTM company identifying the premises over which it claimed rights, the premises to which each claim related was treated as an open question which was to be answered by considering which, if any, premises could be identified which both included the individual blocks and satisfied the requirements of section 72(3) and (4).

Three alternative configurations were considered by the FTT. The first treated the premises as comprising only the building above ground level. There appears to have been very little argument about that possibility which was dismissed by the FTT and has not been revived on appeal. Another option assumed that the premises comprise the whole of each block, both above ground and down to basement level, and that at basement level they extend beyond the footprint of the block to take in an undefined area of the car park. This was rejected by the FTT because it was not a vertical division and included common areas the use of which was shared between different blocks, contrary to the decision of the Supreme Court in Settlers Court.

The FTT therefore considered a third option, namely that in each case the premises comprised the area enclosed within the block’s steel frame which runs from the basement to the top floor. At ground level and above each block cladding panels are fixed to the front face of the columns and beams of the steel frame. But at basement level only part of the area within the steel frame is enclosed by block walls while the rest is open and forms part of the shared car park. The extent of the open areas within the steel frame at basement level is different for each building. The FTT said the area was “relatively small”, which is a fair comment if the comparison is with the car park as a whole. By my own very rough estimate, at basement level, only about 5% of the area defined by the steel frame of The Courtyard is included within the car park, but about a quarter or a third of the corresponding area beneath The Terrace and The Studios is within the car park.

At basement level a largely continuous concrete floor slab extends well beyond the footprint of the individual buildings. But in one place (beneath The Studios) an expansion joint in the concrete slab follows the line of steel columns which support the building. There are similar columns throughout the car park, which support the buildings above as well as the podium deck and road at ground level between them.

The FTT noted that “the drawing of a vertical line from the outmost edge of the steel structure of each of the Premises to basement level must at some point(s) bisect the basement slab where there is no division in reality”. It regarded that absence of a physical division through the basement slab as fatal to the requirement that the claimed premises must constitute a vertical division of the building.

No other part of the structure of The Studios or The Courtyard gave rise to any difficulty in relation to the requirement of vertical division, but in the case of The Terrace the FTT considered whether the test was failed for a further reason. One side of The Terrace fronts Sefton Street. That facade features what the FTT referred to as “balconies”. These are continuous bays which project from first to fifth floor level, extending beyond the steel frame of the building and overhanging the public highway. The RTM companies argued that the requirement of vertical division has no application to any part of the block which is not structurally connected to the remainder of the Estate, but the FTT rejected that argument. It nevertheless considered that although these balconies are “a deviation from the vertical line that runs down the steel frame wall” this deviation was de minimis (too trivial to matter). It justified that conclusion by saying that the projections featured on part only of one wall of the building and that it would be capricious or absurd to distinguish between The Terrace, which had such features, and the other buildings which did not.

Because of the importance the FTT attributed to the undivided floor slab, it did not have to consider two other features of The Terrace which are relied on by the landlords. These are a large parapet on the flank wall which overhangs the podium, and an entrance porch which projects beyond the face of the block on the podium side.

The FTT received evidence from two witnesses who had been involved in the design and construction of the Estate. It found that each of the blocks had been erected separately and that each could be redeveloped independently of the remainder of the Estate. It acknowledged that the podium deck which sits above the car park and spans the space between the individual blocks is supported on beams attached to the steel building frames. If the steel frames were removed in their entirety the podium deck would collapse unless it was supported. Similarly, a staircase between Sefton Street and the podium deck, which is supported on one side by the flank wall of The Terrace, would require alternative support if The Terrace was to be entirely redeveloped.

For the most part, each of the blocks on the Estate has its own independent services. Each was originally provided with its own independent fire alarm system including a separate control panel. After the Grenfell Tower fire, these fire alarm systems were linked but by the FTT hearing The Courtyard and The Terrace were no longer linked. The only continuing connection was between the fire alarm systems serving The Tower and The Studios.. The evidence on this was sparse, but the FTT concluded that any connection could be decommissioned and independent service to each of the two blocks could be reinstated without significant interruption.