John Williams v London Borough of Hackney

This appeal against a decision of the First-tier Tribunal, Property Chamber (the FTT) concerns service charges payable by the appellant and his wife, John and Adenike Williams, to the London Borough of Hackney (the Council), under the lease of their home at Flat 5, Hensley Point in East London. It raises two issues about the interpretation of the lease. The FTT found for the Council on both issues but granted permission to appeal, saying that it had not found the issues easy.

Hensley Point is one of four blocks of flats known locally as “The Points” which were built at the same time and to the same design and which share a communal heating system. The Points are part of a much larger Estate belonging to the Council known as the Gascoyne Estate. The Gascoyne Estate occupies a wide area containing many discontiguous streets and parts of streets and includes a diverse variety of housing types including numerous blocks of different styles, sizes and ages as well as individual houses and maisonettes.

Under their lease of Flat 5, Mr and Mrs Williams agreed to pay “Management Charges” which were to comprise a proportion of the costs and expenses incurred by the Council in fulfilling its obligations under the lease. Those obligations include the provision of the usual services to Hensley Point itself, as well as services in respect of areas referred to as “the Reserved Property” and “the Estate”. The issues in the appeal concern the extent of the Estate and whether the Council has correctly interpreted and applied the terms of the lease when calculating the service charges claimed from Mr and Mrs Williams.

At the hearing of the appeal Mr Williams presented his case himself while the Council was represented by Mr Michael Paget. I am grateful to them both for their helpful submissions.

The proceedings began in the County Court in July 2023 with a claim by the Council for £6,115.02 said to be payable as service charges, ground rent and administration charges. The claim was largely unparticularised and in their defence Mr and Mrs Williams explained that they were happy to pay what was due to the Council but that, despite request, they had not been provided with a breakdown. A landlord, including a local authority landlord, is of course under a statutory duty imposed by section 21, Landlord and Tenant Act 1985, to supply a written summary of relevant costs on written request submitted by a leaseholder. It is a summary offence for a person to fail, without reasonable excuse, to comply with that duty, although since 2014 registered social landlords have been exempted from the penalties, but not from the duty (section 25, Landlord and Tenant Act 1985).

After the claim was transferred to the FTT, schedules were produced by the Council showing that the sum in issue comprised £27 in ground rent, £201.09 in pre-action legal costs claimed as an administration charge, and service charges and insurance totalling £1,896.27 for the year to 31 March 2021, £2,028.23 for 2022, and £2,467.74 for 2023. In aggregate, these figures exceed the amount claimed in the County Court by £277.22.

Using the schedules with which they had belatedly been provided, Mr and Mrs Williams were able to consider the charges and highlight the items which they disputed. These fell into two categories: charges relating to works done in individual flats occupied by the Council’s own tenants; and charges related to works done on parts of the Gascoyne Estate lying outside the boundaries of the area identified as the Estate on the plan attached to their lease.

It was Mr Williams case before the FTT (as explained in writing on 27 August 2024) that he had been informed by the Council that, as leaseholders, he and his wife were responsible for the heating installations in their own flat, that they had incurred costs in carrying out repairs and replacements to those installations, and that they should therefore not be liable for the cost of repairs to installations in the Council’s own flats. They also relied on the plan attached to their lease which they interpreted as delineating the Estate to include only The Points and their immediate curtilage and as not extending to other parts of the extensive Gascoyne Estate.

The two issues for which the FTT gave permission were:

This formulation of the issues is less precise than it might be. As will become apparent, framing the first issue in the way the FTT did masks some of its complexities. Additionally, the issue in relation to heating is not about the cost of heating and hot water but rather is about the cost of work to heating installations in individual flats. As far as I am aware, Mr Williams has not been asked to contribute to the cost of heating other flats and he does not challenge his liability to contribute to the cost of maintaining the boilers and pipework which comprise the communal heating system serving The Points.

Mr and Mrs Williams became Council tenants of their flat in 1996 and completed the purchase of their current lease on 29 July 2002 after exercising their statutory right to buy. Their lease is for a term of 115 years and reserves an annual ground rent of £9.

The Council is referred to in the lease as “the Lessor” and Mr and Mrs Williams are referred to as “the Lessee”. By clause 3 they agreed to pay the Management Charge which is defined as an annual sum to be notified by the Council representing “the due and proper proportion of the reasonable estimated amount” required to cover the cost incurred by the Council in carrying out certain functions and obligations referred to in clauses 3, 6 and 8 and in the covenants in the Ninth Schedule.

The “due and proper proportion” referred to in clause 3 is not a fixed proportion and, in practice, the Council has apportioned its expenditure so that Mr and Mrs Williams contribute 0.127877% to what the Council refers to as “Estate costs”, 2.903226% towards what it calls “Block costs” (including the costs of a booster pump and lifts serving Hensley Point) and 0.725806% towards heating maintenance costs. The exact basis of these apportionments is not known, but it is assumed that for Estate costs they are related to the number or size of the flats, houses and other premises on the whole of the Gascoyne Estate, for Block costs they are related to the number of units in Hensley Point, and for heating costs to the number of units in the four “Point” blocks served by the communal heating system.

The Council’s relevant obligations are found in the Ninth Schedule to the lease. In summary, these require it, by paragraph 1, to keep the following in good and substantial repair and condition:

Paragraph 2 of the Ninth Schedule is concerned with insurance and reinstatement of the Block (including the demised premises) and paragraph 5 with management of the Block.

Paragraph 3 obliges the Council to keep lighted, clean and tidy “all such parts of the Reserved Property as are lighted or should be lighted and keep clean and tidy the said common halls staircases landings steps passages estate roads doors windows pathways estate roads areas forecourts and courtyards.” Paragraph 4 deals with repainting and decorating the exterior of the Block and such of the common parts of the Reserved Property as are usually so treated.

Finally, paragraph 6 refers to carrying out “such other works in respect of the Block or the Estate as are in the reasonable opinion of the Lessor necessary for its proper maintenance and management including works of improvement”. This paragraph contains the first and only reference to “the Estate” in the Ninth Schedule (although “estate roads” are mentioned twice in paragraph 3).

It can be seen that the Council’s maintenance obligations are described by reference to “the Estate”, “the Block”, and “the Reserved Property”. These expressions are defined in the first recital to the lease by reference respectively to the First, Second and Third Schedules. The definitions are introduced and qualified by the words “save as otherwise provided or unless the context otherwise requires”.

The second recital to the lease records that:

“The Lessor is registered at H.M. Land Registry as proprietor with absolute freehold title of the Estate under Title Number NGL3222654 and has agreed to grant unto the Lessee a Lease of the demised premises at the premium and upon the terms hereinafter contained”

The Estate is defined in the First Schedule as:

“ALL THAT area of land shown for the purpose of identification only outlined in green on the attached plan marked “A” comprising land garden(s) flats garages parking spaces stores and premises known as Gascoyne Estate in the London Borough of Hackney”

The plan marked “A” attached to the lease covers an area of the Borough of Hackney which, it is agreed, is considerably smaller than the area containing the whole of the Gascoyne Estate (the registered title of which is spread over six separate plans, none of which is Plan A). Plan A is a detailed plan, based on the Ordnance Survey, which is centred on The Points, round whose curtilage a solid coloured line has been drawn. The colour appears to be blue on the copy I was shown but I presume it was green in the original. At the foot of the plan are printed the words “5 Hensley Point, Gascoyne Estate, London E.9.” and “prepared for the London Borough of Hackney” with the words “(1st Floor)” and “Plan A” added in manuscript.

Because of its extent, it would not have been possible to depict the whole of the Gascoyne Estate on Plan A. But some additional parts of the Gascoyne Estate are shown on the plan, lying to the east and northeast of The Points. Heavy black lines have been drawn around three sides of these areas but these have not been coloured (the sides which are not marked by a heavy line are at the edge of the plan). Similar heavy black lines also surround The Points, over which the blue coloured line has been added. The impression I formed looking at Plan was that a plan showing one corner of the Gascoyne Estate marked by a heavy black line had been used as the base plan, onto which a blue line had been drawn around The Points.

Although it was suggested by Mr Paget in the course of argument that the heavy lines around other parts of the Gascoyne Estate shown on Plan A were also coloured, the digital copy of the original lease held by the Land Registry was inspected after the hearing of the appeal and it is now common ground that the only coloured lines on Plan A are drawn around The Points.

The Block is defined in the Second Schedule as:

“ALL THAT piece or parcel of land being part of the Estate and known as 1-40 Hensley Point in the London Borough of Hackney”

Finally, the Reserved Property is defined at some length in the Third Schedule. It comprises four elements. The first includes forecourts, fences, staircases, landings, passages and other parts of the Block used in common by the owners or occupiers of any of the flats in the Block. The second comprises the main structural parts of the Block including the roofs, foundations, external walls etc, together with “all the cisterns tanks central heating apparatus (if any) sewers drains gutters pipes wires cables ducts and conduits not used solely for the purpose of the demised premises” (i.e. Flat 5). The third element of the Reserved Property is any flat in the Block for the time being not sold or let on a long lease of more than twenty-one years. Finally, the Reserved Property includes “all other parts of the Estate other than the Block and other Blocks on the Estate”. Although it might be open to an alternative construction, Mr Paget confirmed that the Council’s understanding was that no block on the Estate was part of the Reserved Property.

It is also relevant to notice that the Council covenanted by clause 7(B), (C) and (D) that it would only grant leases of other flats in the Block or elsewhere on the Estate on terms similar to those contained in the lease, that it would enforce those terms (including as to payment of the Management Charges), and that while any flat was not let under a lease in the same terms it would make such payments as would have been made by the lessee if the flat had been so let.

Although the FTT framed the first issue for which it gave permission to appeal as an issue about the meaning of “the Estate”, as defined in the lease, it is important to notice that for the most part, the relevant obligations in the Ninth Schedule do not describe the Council’s repairing responsibilities by reference to the Estate. The structural parts and service installations covered by sub-paragraphs 1(i) to 1(iii) of the Ninth Schedule are only those of the Block (including installations “installed in the Block or serving the Block”, which obviously includes those outside the Block but which serve it). Similarly paragraphs 2 and 5 are concerned only with insurance and management of the Block. Paragraphs 1(iv), 3, and 4 extend beyond the Block, but only to the Reserved Property. Only paragraph 6 of the Ninth Schedule extends expressly to the whole of the Estate, but it is a residual or sweeping up provision covering “other works” to the Block or the Estate which should, in principle, be interpreted as not including works of the type already described in paragraphs 1 to 5.

The only parts of the Estate which are included in the definition of the Reserved Property in the Third Schedule are “all other parts of the Estate other than the Block and other Blocks on the Estate”; the only parts of the Estate covered by this description are parts which are not themselves Blocks, which I presume means areas such as estate roads, areas of public open space and the like. The second part of the definition of Reserved Property comprises “the main structural parts of the Block including …” and then lists a large number of items which are included within that description. Amongst these are sewers drains gutters pipes wires cables ducts and conduits not used solely for the purpose of the demised premises”. This indicates that the drafter regarded at least some sewers and drains as being part of the structure of the Blocks. That is significant because many of the Estate costs which Mr Williams disputes concern work done to drains.

In determining the extent of Mr Williams’ liability, it was therefore necessary for the FTT to pay close attention to the meaning of the Block and the Reserved Property, and to ask in relation to each disputed item of expenditure whether it covered an activity in the Ninth Schedule (such as repair, redecoration or management) in respect either of the Block or of the Reserved Property. Consideration of the extent of the Estate was only required if it was necessary to determine whether an item fell within paragraph 6 of the Ninth Schedule (i.e. “such other works in respect of the Block or the Estate as are in the reasonable opinion of the Lessor necessary for its proper maintenance and management including works of improvement”). In its decision, the FTT did not approach the disputed items in that way but instead proceeded on the assumption that if, as defined in the lease, the Estate included the whole of the Gascoyne Estate, all of the Estate Charge items which the Council had identified as having been included in the Management Charge would be properly payable by Mr Williams.

The FTT referred to the definition of the Estate in the First Schedule to the lease and emphasised the words “known as Gascoyne Estate”. It then noted that the only area outlined in colour on Plan A was The Points and that the other parts of the Gascoyne Estate shown on the plan were not outlined in colour. It continued:

“Whilst we have not found it an easy matter, we prefer the construction argued for by Mr Paget, namely that what is known as Gascoyne Estate should be given more weight than the Plan shown for the purpose of identification only.”

By preferring the reference to the area “known as Gascoyne Estate” over the plan stated to be “for the purpose of identification only” the FTT had in mind the well-known distinction between conveyancing documents where land is identified by a verbal description with a plan supplied simply to give a general indication of what the land comprises, and documents in which the plan defines the subject matter of the transaction with precision. Referring to a plan as being “for the purpose of identification only” indicates that if there is any inconsistency between the plan and the verbal description, the verbal description is to prevail.

Mr Paget referred to the following explanation of this distinction by Rimer LJ in Strachey v Ramage [2008] 2 P.& C.R. 8, at page 165:

“31.

The formula “for the purpose of identification only” is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries. The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect. Such a plan “cannot control the parcels in the body of any of the deeds” (Hopgood v. Brown [1955] 1 WLR 213, at 228, per Jenkins LJ); it “cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification” (Wibberley, supra, per Lord Hoffmann).

32.

The use of this formula – “for the purpose of identification only” -- is to be contrasted with the case in which the parcels clause gives a verbal description of the land but also refers to the land as being “more particularly delineated” on the plan. In such a case, in the event of any uncertainty as between the words and the plan, the latter will ordinarily prevail over the words and will control the verbal description (see, for example, Wallington v. Townsend [1939] 2 All ER 225, at 235D to 236H). […].

33.

Having drawn the well-recognised difference of legal effect as between the two formulae commonly used in conveyances to introduce a plan, I would nevertheless supplement it with the self-evident cautionary truth that every case of course turns on its own facts. In any case the task of identifying the parcels of land conveyed will require an interpretation of the particular conveyance against the background circumstances in which it was made; and the function of the court will be to use all admissible material in order to arrive at the correct answer.”

In his helpful submissions in support of the appeal Mr Williams referred to a familiar passage on the interpretation of contracts in the speech of Lord Neuberger, in Arnold v Britton & Ors [2015] UKSC 36, at [15]:

“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to "what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean", to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions.”

Mr Williams particularly emphasised the overall purpose of the service charge clause in his lease, which he suggested was to enable the Council to collect contributions to the cost of repairs to the Block. He also stressed the importance of disregarding evidence of a party’s subjective intention. It was not open to the Council to assert, as it did in evidence given by a solicitor who had not been employed by the Council at the relevant time, that the inclusion of Plan A in the lease was “an error” and that the Council’s intention had been that it should be entitled to collect contributions to the costs of running the whole of the Gascoyne Estate.

The FTT treated the case as one involving an inconsistency between the verbal description of the Estate and the area depicted on the plan and decided that the description of the Estate as the area “known as Gascoyne Estate” should be taken to describe the whole of a much larger area than was shown on the plan. I find that approach difficult to reconcile with the conventional approach to construction of formal documents, which requires that the document be read and understood as a whole. The Estate is defined in the First Schedule as the area of land “shown for the purpose of identification only outlined in green on the attached plan marked “A” comprising land garden(s) flats garages parking spaces stores and premises known as Gascoyne Estate in the London Borough of Hackney”. The description of “the Estate” as comprising land, gardens, flats etc does not assist in determining its extent, since both The Points alone and the wider Gascoyne Estate contain all of those features. The two pieces of information in the First Schedule which assist in identifying what the parties meant are that “the Estate” is shown edged in green on the plan, and that it is known as the Gascoyne Estate.

The fact that the plan is said to be “for the purpose of identification only” does not mean that it can be ignored. It is part of the material which expresses the parties’ agreement, and it may be the only part which identifies clearly what they intended their agreement to mean. In Wigginton & Milner Ltd. v. Winster Engineering Ltd. [1978] 1 W.L.R. 1462, Buckley LJ made that clear, as follows:

“When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being “for identification only,” it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be “for the purposes of identification only” does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel.”

In Johnson v Shaw [2003] EWCA Civ 894, at [35], Peter Gibson LJ stated the general rule but again identified its limits:

“If the delineation on the plan of the property to be conveyed is expressed to be for the purpose of identification only, the verbal description will prevail, though if that description is insufficient or leaves any uncertainty, the plan can be looked at for whatever assistance it can provide […].”

Plan A is a scale plan on which a specific area has been marked. It is of significance that other areas which are part of the wider Gascoyne Estate appear on the plan but have not been marked. It must be assumed that the area outlined on the plan was identified by the Council, since the lease is its standard form and the plan is marked “prepared for the London Borough of Hackney”. It was put forward in that form by the Council and agreed by Mr and Mrs Williams.

This case is not one in which the parties have carefully identified property to be conveyed or let by a verbal description from which the extent of the property can be ascertained. They had the means of identifying the whole of the Gascoyne Estate with that degree of precision, by defining it by reference to the registered title, or by a single plan such as the one exhibited to the Council’s evidence, but they chose not to do so and instead defined it in part by name and in part, for the purpose of identification only, by reference to Plan A. But the verbal description does no more than name the estate and is only of assistance to someone who already knows in detail what the area “known as Gascoyne Estate” comprises. There is nothing in the lease itself, other than Plan A, to identify Gascoyne Estate. There is therefore nothing in the lease itself which causes there to be any conflict between the verbal description of the land concerned (the “parcels”, as Buckley LJ referred to them in Wigginton & Milner) and the plan, and no reason to disregard the plan in identifying what the parties meant.

Mr Paget relied on recital (2) at the start of the lease, which records that “the Lessor is registered at H.M. Land Registry as the proprietor of the Estate under Title Number NGL322654”. But the recital uses the expression defined in the First Schedule and is not intended as a definition in its own right. The statement it contains is true whether “the Estate” means only The Points or means the whole of the Gascoyne Estate; in either case the Estate is comprised in the specified title number, although in the former case it is only part of the land in the title. I was shown the registered title referred to in the lease. It does not refer to the Gascoyne Estate at all. Instead, it lists the many buildings and streets which comprise the property included in the title and identifies them by a number of separate plans.

The parties to the lease would no doubt have appreciated that the area “known as Gascoyne Estate in the London Borough of Hackney” was a larger area than The Points. The Council must be taken to have known the full extent of the area of which it was the owner, and Mr and Mrs Williams had lived on the estate for a number of years before exercising their right to acquire the lease, so they would also have known that the Gascoyne Estate extended beyond The Points. Whether they would have appreciated its full extent is another matter. It is a very large area containing buildings constructed at different times and to no consistent design, so it lacks a visual identity. It is criss-crossed by a number of major roads and is not within a common boundary. The are shown on the plan of the estate relied on by the Council, which is dated 1992, includes buildings and blocks which are not shown on the Land Registry title plans. There is no obvious reason why one of the Council’s tenants on one part of the Gascoyne Estate would know how far its boundaries extended at any particular time or which properties formed part of it.

As to what Plan A identifies, the land, gardens, flats, garages etc which are shown on it outlined in green are restricted to The Points and their curtilage, which is surrounded on all sides by public roads. Other areas which are part of what is known as the Gascoyne Estate appear on Plan A but have not been coloured. As a result, the plan clearly identifies The Points alone.

The purpose of the plan was to identify the Estate to the cost of whose maintenance Mr and Mrs Williams were to contribute. That purpose did not require a precise delineation of the boundaries of the relevant area, and the scale of the plan used in the lease would not allow for a high degree of precision. The purpose of the plan was to identify the general extent of the area which the parties had in mind. By drawing their green line around the boundaries of The Points, and by excluding the other parts of Gascoyne Estate also depicted on the plan (consciously, it must be assumed) the parties identified the area they intended the contribution obligation to relate to as the area limited to The Points, and as not including the wider Gascoyne Estate.

There is nothing in the definition of the Reserved Property which casts light on the parties’ intentions about the extent of the payment obligation assumed by Mr and Mrs Williams. The main focus of those obligations is the Block. The Reserved Property specifically excludes the Block and any other blocks on the Estate, and the definition works equally well whether the Estate is the larger or the smaller area. The two payment obligations which refer to the Reserved Property, paragraphs 3 and 4 of the Ninth Schedule, are quite limited. They cover lighting and cleaning of common areas of the Reserved Property (paragraph 3), and exterior and interior decoration of common parts (paragraph 4). It is at least as likely that the parties would have intended the leaseholders to contribute only to the lighting and decoration of areas in proximity to the demised premises, which they would pass over or see every day, than that they would have intended them also to pay for the lighting and cleaning of areas at some considerable distance which they might never have reason to visit. The only obligation which refers specifically to the Estate, paragraph 6 of the Ninth Schedule, is expressed in very general terms covering “all such other works in respect of the Block or the Estate” as the Lessor might consider necessary. It would be surprising if that obligation covered a wider geographical area than the specific obligations agreed in relation to the Reserved Property. The definition of the Reserved Property does not assist in understanding the extent of the Estate.

I therefore disagree with the FTT’s conclusion that the Estate includes the whole of the Gascoyne Estate, as it is known to the Council. In my judgment the Estate is limited to the area shown outlined in green on Plan A attached to the lease. That area comprises The Points and their immediate curtilage.

The second issue is simpler than the first.

As the FTT noted, paragraph 1(ii) of the Ninth Schedule to the lease requires the Council to keep in good and substantial repair and condition service installations “installed in the Block or serving the Block for the purpose of supplying water gas electricity heat (where applicable) and other usual services […] save only such […] as are solely installed or solely used for the purpose of any particular flat and for which the owner thereof is responsible under any provisions in his lease corresponding to paragraph 5 of the said Seventh Schedule”.

I will take the year to 31 March 2021 as an example of the disputed heating costs. The schedule of charges for heating and hot water maintenance disclosed by the Council for that year includes 18 entries referring to work in individual flats (a typical entry being “remedy no heating and hot water” at a particular address in The Points. All but one of these entries has a flat rate charge of £100.10 (the final entry is £200.20, which may suggest two call outs were necessary).

Mr Williams objects to paying for the maintenance of heating installations in flats which belong to the Council. His understanding of the arrangement, which he attributes to advice received from the Council, is that under the terms of the lease he is responsible for the installations in his own flat and he considers that the Council should have the same responsibility in relation to flats which are not leased but which are subject to short term tenancies.

Paragraph 5 of the Seventh Schedule obliges the Lessee to keep “the demised premises and all fixtures and fitting therein” in repair, including pipes wires ducts or other things “solely installed or used only for the purposes of the demised premises (excluding installations for the supply of heat and hot water other than independent systems solely serving the demised premises)”. It is therefore the responsibility of the Lessee to repair service installations which are “solely installed or used only for the purposes of the demised premises”. But this obligation does not apply to installations for the supply of heat and hot water unless they are “independent systems solely serving the demised premises”.

Mr and Mrs Williams make use of the communal heating system which serves all four of The Points blocks. The heating installations in their flat are not independent systems solely serving their flat and they are not obliged to carry out repairs or replacements to any part of those installations, including radiators and thermostats.

The Council’s repairing obligation in paragraph 1(ii) of the Ninth Schedule dovetails with the Lessee’s obligation in paragraph 5 of the Seventh Schedule. The Lessor is required to keep in good repair any services installed in the Block or serving the Block for the purpose of supplying heat and other usual services (which would include hot water) except things solely installed or solely used for the purpose of a particular flat “and for which the owner thereof is responsible under any provisions in his lease corresponding to paragraph 5 of the said Seventh Schedule”. Service installations which the individual Lessee is not responsible for under paragraph 5 of the Seventh Schedule, including heating installations which are not independent systems solely serving their flat, are therefore the responsibility of the Council.

Mr Williams is therefore mistaken both in thinking that he is required to repair the heating system in his own flat (assuming it is part of the communal system) and in believing that he is exempt from contributing to the cost of repairs to heating installations in other flats occupied by the Council’s tenants. But there is an important qualification to his liability in relation to the Council’s own flats. The only installations covered by paragraph 1(ii) of the Ninth Schedule are those “installed in the Block and serving the Block”. Flats in other blocks are not covered by the Council’s repair obligation in paragraph 1(ii). Nor are they covered by the obligation in paragraph 1(iv) which extends to all parts of the Reserved Property not previously mentioned in paragraphs 1(i), (ii) or (iii), because the Reserved Property excludes all of the blocks on the Estate. Mr Williams payment obligation is therefore limited to paying for repairs to heating installations which are part of the communal system and which serve flats in his own Block, Hensley Point. It is irrelevant whether the flat is let on a long lease or subject to a short term Council tenancy. What matters is whether it is in the same Block and whether it makes use of the communal heating system. If both of those conditions are satisfied in relation to any flat, the Council is required by paragraph 1(ii) of the Ninth Schedule to repair its installations for the supply of heating and hot water, and Mr Williams is required to make a contribution to the cost of the Council complying with that obligation.

It was suggested by Mr Paget, on behalf of the Council, that it was entitled to include the cost of work to other blocks on the Estate, including work to the hearing and hot water installations, provided it apportioned the cost of those works to every property on the Estate. He relied on the Council’s discretion, when notifying the Lessee of the amount of the Management Charges in clause 3(A) of the lease, to specify “the due and proper proportion of the reasonably estimated amount required to cover the costs and expenses incurred or to be incurred” by it in carrying out its obligations in clauses 3, 6 and 8. But that discretion does not enable the Council to expand the scope of the obligations in clauses 3, 6 and 8. It may be administratively convenient for the Council to spread the costs of servicing any part of the communal system, including the radiators and other apparatus in its tenanted flats in each of the four Points blocks, but that is not the approach provided for by the lease.

The FTT did not say specifically that Mr Williams was liable to contribute to the cost of repairing heating and hot water installations in flats in other blocks. But it found that all of the charges claimed by the Council for each year were payable, and those included the cost of many items of repair to installations in other blocks. The FTT did not ask itself the right question and came to the wrong conclusion. It framed the issue as whether Mr Williams should have to pay for hot water and heating costs relating to other flats and decided that he did, but it made no distinction between the blocks. Had it looked more closely at the schedule of disputed charges prepared by Mr Williams it would have seen that he did not object to charges in respect of flats in Hensley Point and had only challenged those for flats in other blocks. His challenge should have been upheld.

Mr and Mrs Williams are not required to contribute to the cost of works to parts of the Gascoyne Estate other than The Points, and they are not required to contribute to the cost of work to heating installations in blocks other than Hensley Point. For these reasons I allow the appeal on both grounds. I set aside the FTT’s decision and remit the proceedings to it for further consideration.

The Management Charges notified to Mr and Mrs Williams under clause 3(A) of the lease were wrongly calculated and before the FTT can proceed with the application they will have to be recalculated. Although the number of items in the schedules of Estate costs and heating/hot water maintenance costs will be reduced as ineligible costs are excluded, the proportion payable by Mr and Mrs Williams will no doubt be adjusted upwards to reflect the smaller number of contributors (so that they pay a higher proportion of the cost of a smaller number of items). Whether the result is a net benefit to them or results in them paying more is not possible to tell without detailed calculations which cannot be undertaken until the Council states what it considers to be the proper apportionment of the different categories of costs. The parties should try to reach agreement on the amounts properly payable for each of the disputed years, and to enable them time to do so they should ask the FTT to stay any further steps in the proceedings for a period of three months.