Brickfield Properties Limited v Oakwood Court Blocks 9 & 10 RTM Company Limited

Under section 72(4)(b) of the Commonhold and Leasehold Reform Act 2002, services may be capable of independent provision even where they are initially shared through common mains or installations. The question is whether the necessary works could be carried out without a significant interruption to services for occupiers of the remainder of the building.

The cost, scale and completion date of the works are not statutory criteria. An expert tribunal may use its general expertise to test evidence, provided it decides the case on evidence exposed to the parties and gives reasons. Whether an interruption is significant is a judgment for the tribunal, subject to appellate intervention only where the conclusion is plainly wrong or irrational.

The landlord appealed against a First-tier Tribunal decision concerning the proposed acquisition of the right to manage Blocks 9 and 10 of Oakwood Court. The FTT held that the blocks constituted a self-contained part of a building and that the relevant services either were independent or could be made independent without a significant interruption to services for the rest of the estate.

The appeal challenged the fairness of the hearing, the weight given to competing expert evidence, the findings concerning gas, water, telecommunications, door entry, access control and fire alarm systems, and the assessment of what amounted to a significant interruption under section 72(4)(b) of the Commonhold and Leasehold Reform Act 2002.

1. Appeal dismissed. All nine grounds of appeal failed and the FTT’s decision stood.
2. The only question under section 72(4)(b) of the Commonhold and Leasehold Reform Act 2002 was whether the works needed to make the relevant services independent could be carried out without a significant interruption to services for occupiers of the remainder of the building. The expense of the works and the date by which they could be completed were not statutory criteria.
3. The FTT adopted an appropriate practical approach consistent with the statutory purpose. The fact that services were shared at or near the mains did not prevent them from being independent. New components or installations could be used, provided the statutory interruption requirement was satisfied. The guidance in St Stephens Mansions RTM Co Ltd v Fairhold NW Ltd [2014] UKUT 541 (LC) was relevant.
4. The FTT was entitled to assess the competing engineering evidence. Its reliance on Mr Arnold’s oral evidence about the gas supply did not amount to impermissible use of undisclosed expertise. It had not relied on material outside the evidence or denied the parties an opportunity to comment. The FTT was also entitled to give less weight to Mr Shale’s evidence because it considered that he had exaggerated the likely interruptions and adopted an advocacy-driven approach.
5. The FTT made no error of law in finding that the door-entry and access-control systems could be provided independently. The estate porters were not a relevant service within section 72(5). Individual telecommunications lines running through the basement of Block 10 did not prevent independence, since the landlord retained access for maintenance. The FTT was entitled to prefer the evidence that the fire-alarm system could be separated without significant interruption.
6. Whether an interruption was significant was a matter of judgment for the FTT. The Upper Tribunal would interfere only if the conclusion was plainly wrong or irrational. The aggregate figures relied upon by the landlord did not establish that the FTT’s conclusion was irrational, particularly since they did not represent complete loss of service to any individual flat.

• Upper Tribunal (Lands Chamber): appeal from the First-tier Tribunal dismissed; the FTT’s decision that the RTM company was entitled to acquire the right to manage was upheld.