First published in LexisPSL on 9th August 2018
Property analysis: A recent Upper Tribunal (UT) case examined the issue of when a building can be defined as ‘structurally detached’ in the context of a right to manage (RTM) claim. Jonathan Upton, barrister at Tanfield Chambers, (who acted for the successful freeholders), comments on what lessons can be learned from this case and considers the implications for property lawyers.
CQN RTM Co Ltd v Broad Quay North Block Freehold and another  UKUT 183 (LC)
What are the practical implications of this case?
The UT reviewed the authorities and gave guidance on the meaning of ‘structurally attached’. It held that what is required is that there should be no ‘structural’ attachment (as opposed to non-structural attachment) between the building and some other structure. The word ‘structurally’ qualifies the word ‘attached’ in some significant manner. Thus, a building may be ‘structurally detached’ even though it touches, or is attached to, another building, provided the attachment is not ‘structural’.
‘Structural’ in this context should be taken as meaning ‘appertaining or relating to the essential or core fabric of the building’. A building will not be ‘structurally detached’ from another building if the latter bears part of the load of the former building, or there is some other structural inter-dependence between them. So long as a building is ‘structurally detached’, it does not matter what shape it is or whether part of it overhangs an access road serving some other building. A building can be ‘structurally detached’ even though it cannot function independently. Adjoining buildings may be ‘structurally detached’ even though a decorative façade runs across the frontage of both buildings.
The question of whether or not premises in respect of which an RTM is claimed comprises a selfcontained building is an issue of fact and degree, which depends on the nature and degree of attachment between the subject building and any other adjoining structures. In determining whether a building is ‘structurally detached’, it is necessary to:
- identify the premises to which the claim relates
- then identify which parts of those premises are attached to some other building
- then decide whether, having regard to the nature and degree of that attachment, the premises are ‘structurally detached’
If a structural part of the premises is attached to a structural part of another building, the premises are unlikely to be ‘structurally detached’.
What was the background?
A site in Broad Quay in Bristol was redeveloped between 2004 and 2009. Most existing buildings were demolished except a central frame tower block which was refurbished and became a Radisson Hotel. One new building was built to the north and another to the south of the hotel.
On top of shops on the ground floor are 95 private residential flats (known as Central Quay North), accessed from an entrance in Broad Quay, and 30 social housing flats which are accessed from a ‘poor door’ on 8 Marsh Street. A ramp from Marsh Street runs down to an underground car park, which is mainly underneath the hotel tower and the south block. Part of the ramp is under the premises, which is supported by concrete pillars, two of which rise from the central kerb that LexisNexis separates the up and down lanes of the ramp. There are water storage tanks and a pump in the basement area. The residential tenants do not have the use of the car park.
On 6 June 2017 the First-tier Tribunal (FTT) found as a fact that the degree of attachment between the two blocks of residential flats and the neighbouring hotel was insufficient to make the premises ‘structurally detached’ under section 72(2) of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002). The FTT ruled that the claimant RTM company was therefore, on the relevant date, not entitled to acquire the right to manage premises under CLRA 2002, Pt 2, Ch 1.
The RTM company relied on expert evidence relating to the construction of the premises. That evidence, which was not challenged by the landlord, was that there was no load-bearing connection between the subject premises and the adjoining premises. The FTT accepted that evidence, but concluded that if one looked at the connection between the buildings behind the façade, there was no single visible division between them.
By example they referred to the car park ceiling and floor slabs where they joined underneath the subject premises and adjoining premises. The FTT held that this connection was more than a mere touching.
On appeal the RTM company submitted that:
- such a finding was not open to the FTT on the evidence
- the FTT should have raised with the RTM company’s expert the impression it had formed about the integrated connection between those aspects of the two buildings on the basis of its visual inspection
- the FTT had not given sufficient reasons
What did the UT decide?
The UT ruled that since it is a question of fact and degree, the present appeal had to fail if the FTT’s reasons for its decision demonstrated that it had applied the correct test in law and that it had reached a conclusion which was open to it on the facts that it had found.
Having given guidance on the meaning of ‘structurally detached’, the UT held that the FTT had applied the correct legal test and was entitled to make a finding of fact that the premises were not structurally detached on the basis of its view of the premises and the adjoining building. The FTT took the view that this was not a case merely of two adjoining walls touching, with no structural connection between them.
Rather, and on the basis of the FTT’s visual inspection, it concluded that the car park ceiling and floor slabs constituted a single structure. It could not be fairly said that the appellant RTM company could not understand why it lost its RTM claim.
Jonathan Upton is based at Tanfield Chambers in London. He specialises in property disputes and is experienced on matters relating to mixed-use developments. He regularly advises developers, landlords and leaseholders on tenants’ rights of first refusal, lease interpretation, collective enfranchisement, lease extensions, right to manage claims and variation of leases and service charges.
Interviewed by David Bowden.
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