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

Introduction

1. This is an appeal from a decision of the First-tier Tribunal about the acquisition of the right to manage leasehold property under the Commonhold and Leasehold Reform Act 2002 . It is brought with the permission of the FTT by the landlord, Brickfield Properties Limited, against the company formed in order to acquire the right to manage, Oakwood Court Blocks 9 & 10 RTM Company Limited. The issue between the parties is whether services could be provided independently to Blocks 9 and 10 within the requirements of the statute; the FTT found that they could, and that the RTM company was entitled to acquire the right to manage.

2. The appellant was represented by Ms Nicola Muir and the respondent by Ms Ellodie Gibbons, both of counsel, and we are grateful to them both. The legal background

3. Chapter 1 of Part 2 of the Commonhold and Leasehold Reform Act 2002 makes provision for the acquisition and exercise by an RTM company of the right to manage premises to which the Chapter applies. The right to manage is acquired on a “no fault” basis; all that has to be done is the formation of a company as a vehicle for the acquisition of the right, and for the company to follow the procedures prescribed in the Act , provided that the premises are ones to which the Chapter applies. Section 72, so far as is material to this appeal, says this: “ 72 Premises to which Chapter applies (1) This Chapter applies to premises if— (a) they consist of a self-contained building or part of a building, with or without appurtenant property, (b) they contain two or more flats held by qualifying tenants, and (c) the total number of flats held by such tenants is not less than two-thirds of the total number of flats contained in the premises. (2) A building is a self-contained building if it is structurally detached. (3) A part of a building is a self-contained part of the building if— (a) it constitutes a vertical division of the building, (b) the structure of the building is such that it could be redeveloped independently of the rest of the building, and (c) subsection (4) applies in relation to it. (4) This subsection applies in relation to a part of a building if the relevant services provided for occupiers of it— (a) are provided independently of the relevant services provided for occupiers of the rest of the building, or (b) could be so provided without involving the carrying out of works likely to result in a significant interruption in the provision of any relevant services for occupiers of the rest of the building. (5) Relevant services are services provided by means of pipes, cables or other fixed installations.”

4. The property concerned here is Blocks 9 and 10 Oakwood Court; we refer to the two blocks together as “the RTM property”. Blocks 9 and 10 are not detached blocks, but rather two adjacent sections of a larger building. It is common ground that together they constitute “part of a building”, and that the requirements of section 72(3)(a) and (b) are satisfied; the RTM property constitutes a vertical division of the larger building, which is structurally independent. The application to the FTT turned on subsection (4) and the question whether certain services could be provided independently to the RTM property without involving “works likely to result in a significant interruption” in the provision of the relevant services for occupiers of the rest of the building. It is worth emphasising that the relevant disruption is to the rest of the building, not to residents within the RTM property.

5. In St Stephens Mansions RTM Co Ltd v Fairhold NW Ltd. [2014] UKUT 541 (LC) the Tribunal (the Deputy President, Martin Rodger KC) said this about sub-section (4): “83. The test in s.72(4)(b) contemplates “the carrying out of works” to render the supply of services independently to the different parts of the building. Satisfaction of that test cannot therefore be restricted to situations in which a separation of service provision can be achieved simply by closing isolation valves or flicking switches. I agree with Mr Howells' submission that the provision of new components or installations cannot be ruled out, and that the only scale of measurement which the Act provides for deciding whether work is too substantial is by reference to the degree of interruption it will inflict on occupiers of the remainder of the building.”

6. The Deputy President went on to say this: “86. I do not consider the use of a shared pipe from the water main to the pump-house to be significant. It is in the nature of many services provided by means of pipes, cables or fixed installations that mains conduits are subdivided at a point close to the point of delivery to the consumer; until that point is reached the supply to any individual customer or group of customers is not independent of the supply to any other group. That fact cannot prevent the relevant service from being supplied independently for the purpose of s.72(4). A sensible line has to be drawn. Mr Bates suggested that it should be at the point where the supply to the two buildings is taken from the water main, but it seems to me equally consistent with the statutory scheme to examine the supply from the point at which it first emerges above ground in the pump house, since that is the point at which equipment under the control of the parties first begins to operate on it.”

7. That is important in the present appeal, and the point bears repeating: the fact that a particular service is a shared one as it comes off the mains, and is subdivided when it reaches individual buildings, does not prevent the service from being independent.

8. The parties also made reference to Oakwood Court (Holland Park) Ltd v Daejan Properties Ltd [2007] 1 E.G.L.R. 121, a county court decision which is particularly interesting because it related to Block 1 at Oakwood Court; it was about a claim to collective enfranchisement, which failed because the judge (HHJ Marshall QC) determined that it was not possible to meet the requirements for provision of independent services, which are substantially the same in the Leasehold Reform, Housing and Urban Development Act 1993 as they are in section 72 of the 2002 Act . It is not suggested by either party that the decision in Daejan Properties constitutes a precedent by which the FTT was bound, and of course as a county court decision it cannot be. It was made prior to the decision in St Stephens Mansions , and should be read in the light of the Deputy President’s comments in the latter case.

9. Finally under this heading we think it worth setting out the way the FTT in the decision now appealed described the task it was undertaking: “14. We consider it important not to lose sight of the wood for the trees and forget the purpose of the 2002 Act . Whilst the 2002 Act has spawned a considerable volume of litigation, the main objective of the legislation is clear and the intention was that the process should be “as simple as possible to reduce the potential for challenge by an obstructive landlord”: A1 Properties (Sunderland) Ltd v Tudor Studios RTM Company Ltd [2024] UKSC 27 at [25].

15. Without distorting the law or giving the statute a meaning that the language cannot support, we consider that we should construe this part of the 2002 Act in a practical way, so as to ensure that we do not render nugatory the rights conferred by the 2002 Act .”

10. If we may say so, we regard that as an entirely appropriate approach. The RTM property and the services

11. Oakwood Court is an estate in Holland Park arranged as twelve mansion blocks with lower ground, ground and seven upper floors. The estate road is on an east/west axis and Blocks 1-6 are on the north side with Blocks 7-12 on the south. There are 188 flats in all. Block 9 contains flats 117 to 132 and Block 10 has flats 133 to 148.

12. On 13 December 2023, the Applicant served a Claim Notice pursuant to section 79 of the Act claiming the right to manage the RTM property. On 22 January 2024, the Respondent served a Counter Notice stating that by reason of s.72(1) (a) of the Act , the Applicant is not entitled to acquire the right to manage because the RTM property is not a self-contained building or part of a building as required by the 2002 Act . On 20 March 2024 the Applicant applied for a determination pursuant to section 84 (3) of the 2002 Act that at the date it served its Claim Notice it was entitled to acquire the right to manage the RTM property.

13. In opposing the RTM company’s case the appellant argued that seven services were not provided independently, and could not be so provided within the terms of section 72(4) (b) of the 2002 Act . The services were as follows: i. Gas: the RTM Property is served by two separate supplies. The first is from a main in the estate road at the front of the buildings and provides an individual supply to each building; it is agreed to be an independent supply. The second is from a main in Addison Road, to the west of Oakwood Court. This supply is routed through a meter and runs above ground to three boiler houses each of which serves a pair of blocks. Blocks 9 and 10 are served by Boiler House 4 (‘BH 4’). The landlord is obliged to supply hot water and heating to the flats, and does so through plant in BH 4, fed by the gas supply to BH 4 which is equipped with a check meter recording consumption; that meter belongs to the landlord and is not the basis of billing by the supplier. (It is worth noting that one of the problems in the Daejan Properties decision, paragraph 8 above, was that the claim for collective enfranchisement related to a single block, whose gas supply and heating/hot water plant was shared with the adjacent block, whereas in the present case no block other than the RTM property is served from BH 4). ii. The cold water mains supply serves the blocks in pairs; awkwardly for present purposes, Block 9 receives its water from a supply to Block 8, and Block 11 from a supply to Block 10. iii. The third service is telecoms, i.e. telephone and broadband services. A bundle of cables serving Blocks 7, 8, 9 and 10 is contained in an underground duct which has a distribution point in Block 10. It appears that individual cables run out from the distribution point to the various flats in each block. iv. A door entry (intercom) system is installed in each block and connected to the Estate Porter’s office so that the porter can speak with visitors trying to gain entry. v. An access control system for residents is also provided in each block with a control system in the basement of each. Unlike the door entry system the access control is networked to the whole site and relies for management on a computer in the Estate Porter’s office. vi. The fire alarm system is an estate-wide landlord’s system with a panel in each block and in the Estate Porter’s office vii. The lightning protection system. The decision of the FTT

14. Both parties adduced expert engineering evidence before the FTT. The respondent, as the applicant in the FTT, called Mr David Arnold of Troup Bywaters & Anders LLP and the appellant (respondent in the FTT) called Mr Samuel Shale of Insight FM Limited.

15. The FTT explained that it found the evidence of both witnesses problematic. As to Mr Arnold: “23. On the one hand, he was clearly an expert with very considerable expertise and much of the oral evidence he gave us is evidence we can accept, based, as it was, on his considerable experience and expertise and grounded in common sense. We also accept that he was an independent witness doing his best to assist the tribunal. On the other hand, he made a number of significant factual errors, in particular in relation to the configuration of the existing services. These mistakes shook our confidence to a degree in the reliability of some of his evidence, in particular that contained in his Report. However, he had recently returned to the site and made a number of corrections to his written report before adopting that report as his evidence. Further, his oral evidence was measured and reasonable and we accept he had relevant expertise in relation to the issues.”

16. As to Mr Shale, the FTT expressed concern that he had failed to state in his report that the Freshwater Group, of which the appellant is a member, is a client of his firm; the FTT thought that he ought to have done so. It said: “28. What ultimately matters is the cogency of his evidence. Without doubting his expertise, our assessment of his evidence, when considered in the round, was to this effect: firstly, we concluded that he had, at times, assumed the role of an advocate and adopted a “kitchen-sink” approach to the case so as to put as many hurdles in the Applicant’s path as possible, and, secondly and more importantly, we concluded that he was prone to exaggerate or overstate to a significant degree the extent of any interruptions to services likely to arise from attempts to procure an independent supply of the relevant service. We have therefore given significantly less weight to his evidence to reflect these findings.”

17. In light of that, the FTT went on to describe its approach as follows: “29. Given these conclusions, and our reservations about some parts of Mr Arnold’s evidence, the tribunal has been left in a less than optimal position, particularly where there was a conflict of evidence between the experts. We have tested the evidence with each expert, by asking our own questions, and have ultimately reached our conclusions on the totality of the evidence before us, supplemented by our own general (not specific) knowledge and experience as an expert tribunal and bearing in mind that the burden of proof is on the Applicant. There was no inequality of arms between the parties, and we consider that our approach was fair to both sides and consistent with the overriding objective of dealing with cases fairly and justly.”

18. The FTT went through the individual services in issue.

19. The FTT found that the gas supply to the BH 4 was not independent of the supply to Blocks 7-8 and 11-12 but could be made so by creating a new connection from one of the two gas mains (i.e. either the one at the front of the building or the one in Addison Road) and running a new pipe to BH 4 (under the building from the front, or along it at the back). The existing supply could be closed at the valve inside BH 4 and then capped off. This course of action would briefly suspend the supply to BH 3 and BH 5 but the interruption would last no more than 8 hours and was not therefore significant. The FTT rejected Mr Shale’s evidence that the section of the gas main serving BH 4 would need to be completely removed back to the common external main and that the works required to achieve this would shut down the gas supply to BH 3 and BH 5 as well as BH 4 for between 2 and 3 days, with loss of heating and hot water to Blocks 7, 8, 9, 10, 11 and 12

20. Turning to the water supply the FTT looked at the two blocks in turn. In order to separate the supply to Block 9 (and make it independent of Block 8) either a new cold water mains supply would need to be brought into Block 9 from Oakwood Court to provide mains water to the flats of Block 9 and to connect to the roof-top cold water storage tanks, or Block 10 would need to be connected into Block 9 at roof level, assuming the supply to Block 10 was sufficient for Block 9 as well. As to Block 10, to detach Block 11 it would be necessary either to connect the cold water mains supply serving the roof-top tanks on Block 12 to the tank on Block 11 or for a new cold water mains supply to be brought into Block 11 from Oakwood Court and run up the outside of the building.

21. Whichever option was chosen, the FTT accepted that the cold water tanks would not have to be emptied and so the service to sanitary fittings would not be interrupted. Any loss would relate solely to kitchen sinks and other mains connected fittings. It should be possible, with planning, to restrict the down time in the supply to Blocks 8 and 11 to about 4 hours. The FTT also found that there was no reason why the works could not be co-ordinated to ensure that the cumulative interruption was 4 hours. The appellant’s expert thought that the disruption would last 8 hours but the FTT held that neither 4 nor 8 hours would constitute a significant disruption.

22. The FTT accepted Mr Shale’s evidence that telephone lines run out from the distribution point in Block 10 to serve the individual flats in Blocks 7 to 10, and therefore found that the telecoms service to the RTM Property was independent; if it needed to be physically separated this could be achieved without any interruption to the service to the other blocks. It did not regard as problematic the fact that wires to Blocks 7 and 8 run through the RTM property. It rejected Mr Shale’s opinion that separation works would cause disruption and downtime in Blocks 7 to 12 for “intermittent and uncontrolled periods estimated to last 4 weeks”.

23. The FTT also found that the connection of the door entry system to the Estate Porter did not undermine the independence of this service and the disconnection of the link could readily be achieved without disrupting the service to other blocks. Mr Shale’s evidence was that the disruption would be “minor”, although the FTT described his estimate of the duration of the disruption (2 days) as “exorbitant and highly unrealistic”. The FTT pointed out that the services of the porters themselves were not a relevant service for the purposes of section 72 (which, as section 72(5) provides, relates to services provided “by means of pipes, cables or other fixed installations”).

24. The same rationale applied to the access control system. The FTT explained that Blocks 9 and 10 are individually afforded electronic access at both the relevant block’s main and rear entrances”, by presentation of a key fob. The associated equipment is in the basement of each block The FTT accepted Mr Arnold’s evidence that all that was needed to separate the system from the estate-wide service was to isolate it from the computer that served the estate as a whole; Mr Arnold did not expect the disconnection to affect other blocks. The FTT thought the disconnection would take no more than 2 hours, and described Mr Shale’s estimate of 14 days’ disruption as “an exorbitant estimate which bears no resemblance to reality”

25. As to the fire alarm, the FTT accepted Mr Arnold’s evidence that the RTM Property could be disconnected from the rest of the estate without disrupting the other blocks. The installation of a separate system in the RTM Property could be done without any loss of service to the other blocks. The FTT rejected Mr Shale’s opinion that disconnecting Blocks 9 and 10 would cause disruption for 2 weeks as “entirely overblown”.

26. The FTT heard evidence about the lightning protection system from a different expert, and found it to be independent, or easily separated if not, and there is no appeal from that finding.

27. In coming to its decision that the applicant was entitled to acquire the right to manage Blocks 9 and 10, the FTT said this: “We are satisfied that any interruption to services could be kept to a minimum by programming and coordinating the required works across the affected services in such a way that any and all preparatory work could be done without disconnecting the existing supply of any relevant service until strictly necessary; that way any actual interruption in the provision of any relevant services for occupiers of the rest of the building could be kept to a minimum” The grounds of appeal

28. The appellant appeals on nine grounds. The first three grounds are about procedural unfairness and the weight that should have been placed on the evidence of the two expert witnesses. Grounds 4 to 8 relate to the individual services in issue; in each case the appellant says that the FTT erred in law. Ground 9 challenges the FTT’s assessment of what is a significant interruption.

29. A theme of Ms Muir’s skeleton argument and of her argument at the hearing was that the works required to render the services to the RTM property independent were going to be so extensive and costly that they could not possibly be within the contemplation of section 72(4) . In particular, she argued that if the statute had contemplated works so extensive as the laying of a trench for new gas pipes and suchlike it is inconceivable that it would not have made provision for who was to pay for it. She also argued that the works contemplated here were such that they could not possibly be completed by the date of acquisition of the right to manage, which again meant they must be outside the scale of works contemplated by the statute.

30. On looking back at the grounds of appeal as presented to the FTT we do not find those arguments. Furthermore, neither the expense of the work nor the date by which it can be completed is a criterion to which the FTT could have regard; neither is mentioned in section 72 . The only issue under section 72(4) (b) is whether the works required to make the services independent could be done without significant interruption to the services to the rest of the building. That was, correctly, the FTT’s focus.

31. The respondent in response has put forward a further ground, in effect a cross-appeal in case the grounds of appeal relating to the gas supply are successful. The grounds of appeal relating to the gas are not successful, and we therefore do not comment on that additional argument. Grounds 1 to 3: procedural unfairness

32. The FTT granted permission on all grounds but in doing so it said this: “The Tribunal is sceptical about the merits of a number of the other grounds of appeal, particularly those relating to the fairness of the proceedings, and the challenge to the Tribunal’s decision as to the weight to be given to the expert evidence it heard.”

33. As will be seen, we share that scepticism. Ground 1: evidence in chief from Mr Arnold

34. The appellant says that the RTM Company’s expert, Mr David Arnold, gave oral evidence at the FTT hearing which did not form part of either of his written expert reports and was contrary to the evidence in those reports. As a result, the appellant was unable to submit evidence in response or to properly test Mr Arnold’s evidence.

35. There were some significant errors and omissions in Mr Arnold’s written evidence. He had failed to realise that the water supplies to the two blocks were shared and said that they were independent. In his first report he also said that there was a single independent gas supply from the front of the property, but having seen Mr Shale’s evidence he revised his opinion and in his second report he acknowledged the supply to BH 4. He did not say how the gas supply to BH 4 could be disconnected, his assumption being that either the supply was independent or could be made so by attaching a meter. And he made a mistake about the diameter of the pipes.

36. The appellant says that in relation to the gas supply it was only in cross examination that Mr Arnold said that there was an isolation valve which could simply be closed. He did not produce any evidence that the valve was compliant with gas regulations or whether its use would result in the supply becoming independent. In the same vein, Mr Arnold’s acknowledgement that the mains cold water supply to the Property was not independent only came in oral evidence.

37. The appellant concludes that Mr. Arnold’s “on the hoof” evidence should have been disregarded by the FTT and that if it had been the RTM company could not have proved its case.

38. The respondent disputes that Mr Arnold’s evidence in chief was “extensive”. Ms Gibbons submitted that Mr Arnold corrected some factual errors in his report, effectively agreeing with Mr Shale’s position. No prejudice resulted.

39. Turning to the evidence about the gas supply, the respondent acknowledges that Mr Arnold had not referred to the provision of a new gas supply from Addison Road and he considered that there were cheaper and simpler options for creating an independent supply. He agreed in cross examination that the provision of a new main was an option. Ms Gibbons said that he answered the questions put to him and that his answers hardly amounted to “extensive oral evidence”.

40. There is no transcript of the FTT hearing but we were provided with a copy of a note of the hearing jointly produced by counsel. It shows that during examination in chief Mr Arnold sought to correct his report by inserting the word “not” into his written statement that the cold water supply was independent. He also clarified comments he had made in his second report about the gas supply.

41. We agree that the about-turn in Mr Arnold’s evidence about the water was startling, but it cannot have caused Mr Shale any difficulty since the correction amounted to agreement with Mr Shale’s position. As to the rest of Mr Arnold’s oral evidence, it seems to us that he answered the questions put to him but did not introduce new ideas that Mr Shale could not have responded to. Mr Arnold of course gave evidence first, so Mr Shale had the opportunity to think about it before he was cross-examined. The idea that there was a valve in BH 4, or that there could be one, was hardly startling; whether it was correct was a matter for the FTT to consider in evaluating the evidence but in terms of ground 1 it cannot be said to have caused unfairness.

42. So whilst we agree that Mr Arnold’s evidence was problematic, that was as the FTT said a problem for the RTM company; we do not agree that his correction, at the hearing, of the short-comings in his report gave rise to unfairness. Grounds 2 and 3: the weight afforded to the evidence of the two witnesses

43. The second and third grounds can be dealt with together. The appellant says that the FTT placed too much weight on Mr Arnold’s evidence, which the appellant said was inconsistent and unreliable, and not enough on Mr Shale’s, which the FTT thought was problematic on grounds of bias – incorrectly in the appellant’s view.

44. Looking first at Mr Shale, the FTT felt that he should have disclosed his firm’s position in acting for the Freshwater Group.

45. We agree with the appellant that the FTT need not have made adverse comments about Mr Shale’s evidence. The fact that the appellant had instructed an expert from a firm that usually acted for the Freshwater Group was not really problematic and did not give rise to a conflict of interest. However, in any event the FTT did not disregard or give less weight to Mr Shale’s evidence on account of that perceived conflict. The crucial paragraph so far as Mr Shale is concerned is the FTT’s paragraph 28 (at paragraph 16 above). The FTT looked at the substance of his evidence and found that Mr Shale had exaggerated, and had done his best to put obstacles in the respondent’s way. It was for those reasons that the FTT gave less weight to his evidence. Those were good reasons and we can find no fault with them.

46. As to Mr Arnold, the FTT was well aware of the shortcomings of his evidence. Ms Gibbons in her skeleton argument for the respondent acknowledged that he “was 81 years old as at the date of the FTT hearing. It was apparent from his oral evidence that he struggled with his short-term memory.” Nevertheless, the FTT in its paragraph 23 (above, paragraph 23) expressed considerable confidence in his expertise, experience and common sense. Ms Gibbons observed that Mr Arnold’s oral evidence was much more confident and convincing than were his written reports; and that is significant, because the FTT saw and heard the witness and was best placed to assess his reliability.

47. The FTT’s statement of its general approach at its paragraph 29 reflects the problems it found with both witnesses, and picks up what it said at its paragraphs 14 and 15 (see paragraph 9 above); it took a practical approach to the services that were in dispute, used its expertise as it was entitled to do, and had in mind the purposes of the legislation and – particularly relevant to the gas supply – the Deputy President’s comments in St Stephens Mansions . Again, we can find no fault with that approach.

48. Accordingly, neither ground 2 nor ground 3 succeeds. Grounds 4 to 8: the FTT’s decisions about the individual services. Ground 4: the gas supply and the FTT’s expertise

49. At its paragraph 29 the FTT said: “We have tested the evidence with each expert, by asking our own questions, and have ultimately reached our conclusions on the totality of the evidence before us, supplemented by our own general (not specific) knowledge and experience as an expert tribunal”.

50. For the appellant it is argued that the FTT went too far in applying its own expertise to the facts. The appellant relies on Arrowdell Ltd v Coniston Court (North) Hove Ltd [2006] 10 WLUK 797 , where the Lands Tribunal (the President, Mr George Bartlett, and Mr Norman Rose FRICS) said: “It is entirely appropriate that, as an expert tribunal, an LVT should use its knowledge and experience to test, and if necessary to reject, evidence that is before it. But there are three inescapable requirements. Firstly, as a tribunal deciding issues between the parties, it must reach its decision on the basis of evidence that is before it. Secondly, it must not reach a conclusion on the basis of evidence that has not been exposed to the parties for comment. Thirdly, it must give reasons for its decision.”

51. The FTT accepted Mr Arnold’s evidence that the gas supply in BH 4 could be closed off with a valve, and a fresh supply provided; it rejected Mr Shale’s evidence that the gas main serving BH 4 would need to be completely removed back to the common main. The appellant argues that the FTT did not really have any evidence about such a valve; it was suggested by Mr Arnold at the hearing but there was no evidence that there really was such a valve or that that operation would be feasible. Instead the FTT seemed to have purported to use its own expertise to make that assessment, which the appellant says is impermissible.

52. In any event, Ms Muir argued, as the Deputy President said in the St. Stephens Mansions Case at paragraph 73, closing an isolation valve does not create an independent service.

53. The Deputy President at paragraph 73 of St Stephens Mansions was assessing whether a service was independent; in that case water to the relevant property came from a shared tank and the Deputy President rejected the argument that because it could be closed off it was independent. But that is not the point here, where the FTT agreed with the appellant that the gas supply was not independent. The issue was whether it could be made so without interruption to services to the other blocks. The solution it accepted was that the actual supply to BH 4 could be shut off in BH 4, and then a new supply run either to the main at the front or to the main in Addison Road.

54. The evidence the FTT had for that was Mr Arnold’s oral opinion, which it accepted in light of its confidence in his expertise and his experience. It did not add anything extra from its own expertise; it did not have regard to material that the parties had not commented on; there were no extra ingredients to its decision beyond the evidence it heard.

55. Certainly the appellant disagrees and thinks that the evidence the FTT had was insufficient; in particular it is argued that Mr Arnold’s evidence should not have been accepted without further technical information. But that is a different point; the appellant can succeed on it only by showing that no reasonable tribunal could have regarded that evidence as sufficient, and we think that the situation falls far short of that.

56. We are not persuaded that in assessing the work needed to separate the gas supply the FTT relied upon its own expertise beyond what is permissible in assessing the evidence in front of it, and ground 4 fails. Ground 5: the door entry system and the access panel

57. Ground 5 is that the FTT erred in law in finding that the door entry system and access panel were capable of being provided to the RTM property independently. Both services involved the porters; simply disconnecting them meant that the residents in the RTM Property would no longer have the porters’ services. In that sense it was not possible for that same service to be provided independently.

58. This is, we think, a mischaracterisation of what section 72 requires. The porters are not a “service” as defined by section 72(5) . It is not necessary for the RTM property to be provided independently with the estate porters’ services by way of the door entry system and the access control system. It is obvious that the RTM property can install and maintain its own door entry system and access control; the focus of section 72(4) is whether such services can be provided independently without significant interruption to the services to the other blocks. The FTT made no error of law in making its decision on that basis. Grounds 6 and 7: telephone and broadband services

59. It will be recalled that telephone and broadband lines for Blocks 7 to 10 enter the basement of Block 10 and then travel to individual flats. Ground 6 is that the FTT made an error of law in finding that it was not necessary to separate these cables on the basis that they ran to individual flats and were not a communal system, since section 72 makes no such distinction. A building is not independent if it houses a telecoms distribution point and associated cabling for other blocks; and it would be unsatisfactory for the residents in the other blocks to have their phone lines (etc) passing through a building that the landlord no longer has the right to manage.

60. Ground 7 is the related point that the FTT failed to address the question of how the rest of the building, other than the RTM property, can enjoy an independent telecoms service given that it is distributed from Block 10 which its landlord will no longer have a right to manage if the RTM acquires the right to manage.

61. The answer to both points is a short one, we think, as put forward by Ms Gibbons: the fact that the telephone and broadband lines runs through the basement of Block 10 does not pose a problem, because it is a non-demised part of the block to which the landlord will continue to have access for maintenance. Ms Gibbons referred us to the provisions in the Leasehold Reform, Housing and Urban Development Act 1993 which provide that, on enfranchisement, the conveyance to the purchaser will contain all the easements (etc) necessary for the landlord to have for the benefit of the other property in its ownership. In a right to manage case there is no alienation of the RTM property and the landlord will continue to have access to the basements in order to, for example, maintain telecommunications services to the other blocks.

62. We accept that argument. The fact that the telephone lines are individual ones means, in our judgment, that the service to the RTM property is independent; it means that individual cables can, for example, be repaired or replaced without the need to do anything to lines for other blocks. Contrast a water supply system where the water for both blocks runs through the same pipe so that the two supplies are not independent. And we accept Ms Gibbons’ argument that future maintenance will continue on the same basis as before. The basement remains the landlord’s property and the appellant will still have access for maintenance. Ground 8: the fire alarm

63. Ground 8 is, in effect, a complaint that the FTT ignored relevant evidence in connection with the fire alarm system. It accepted Mr. Shale's evidence that there is a single alarm system for the whole estate. It found that the respondent could install a new system in the RTM property without causing significant interruption to the services to the rest of the building. But neither Mr. Arnold nor the FTT addressed the effect of disconnecting the RTM property from the existing system and in particular it failed to address Mr. Shale's evidence that the current system is obsolete and that the absence of spare parts means that it is likely to be impossible to simply reconfigure it. Moreover, Mr Arnold assumed there was a separate system for each block, which is not the case.

64. In response the respondent points out that Mr Arnold did give evidence about the potential interruption to the other blocks. He said in his report: “it should be possible disconnect the landlord’s system to Blocks 9 & 10 without disruption to the other blocks in the Building. [8.5] If it was required to separate the fire alarm system, then before the fire alarm to Blocks 9 & 10 can be disconnected from the existing system, it will be necessary to install a new separate system. Installation of a new separate system to Blocks 9 & 10 would take 3 – 5 days and would not cause any disruption to the other blocks in the Building. [8.6] Blocks 9 & 10's connection to the existing system would then be disconnected. The Respondent envisages significant disruption to disconnect the fire alarm system to Blocks 9 & 10 from present fire alarm system protecting the whole estate… [8.7] I disagree. I have worked on very many partial refurbishments and redevelopment of buildings and have never experienced any significant issues isolating single floors of buildings from building wide alarm systems. It would be as simple as isolating Blocks 9 & 10 on the panel shown at figure 8 and excluding them from the estate wide system. If it was necessary to physically remove the disconnected equipment from Blocks 9 & 10 this would not cause any disruption to the other blocks in the Building as this equipment would have already been isolated.”

65. Mr Arnold was discussing a single system; on reading his reports we cannot see that he thought each block had a separate system. There were differences of opinion between Mr Arnold and Mr Shale; Mr Shale thought the system was obsolete, Mr Arnold thought that it was in good condition and “far from obsolete”. We come back to the FTT’s assessment of Mr Shale’s evidence overall: he tended to exaggerate. We can understand why the FTT preferred Mr Arnold’s view, arising from experience and common sense.

66. This ground does not raise an error of law. There was evidence on the issue in question, and the FTT preferred one expert to the other. We see no basis on which its finding can be disturbed. Ground 9: what is a significant interruption?

67. Ground 9 is rather different from its fellows because it challenges, not findings of fact about matters of engineering, but the FTT’s judgment that the level of interruption that it accepted would be caused would not be a “significant interruption” to the services for the rest of the building.

68. The appellant has added up the hours of interruption that the FTT found would be caused to services in the other blocks: Gas: 8 hours Water: 4 hours for Blocks 8 and 9 4 hours for Blocks 10 and 11 Telecoms: 2 hours Access control: 2 hours Door entry 2 hours

69. 22 hours’ total interruption is not insignificant, says the appellant. We observe that the total is not 22 hours for any individual flat, since no flat will experience the interruption of the water service in both pairs of blocks.

70. The short answer to this ground is that what is significant is a question of judgment for the FTT, and the Tribunal will not interfere unless the conclusion reached is plainly wrong or irrational. That is the case whether one looks at individual interruptions, or the total of all the interruptions – we do not need to decide which is relevant, for present purposes. But in any event, the figures above do not represent hours when a service will be completely unavailable. Mr Shale used the word “disruption”, rather than claiming complete shut-down. As the respondent points out, the figures are approximate and interruptions may not be so long.

71. Ground 9 therefore fails. Conclusion

72. We have rejected all grounds of appeal and the FTT’s decision stands. Judge Elizabeth Cooke Mr Mark Higgin FRICS FIRRV 26 March 2026 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.