Kilmartin SCI (Hulton House) Ltd v Safeway Stores (2006)


The area to be included in the calculation of the net internal area of a building, as defined in the RICS Code of Measuring Practice, was the area that was capable of use for any sensible purpose in connection with the purposes for which the building was to be used.


The claimant proposed landlord (L) sought the specific performance of an agreement for a lease made between it and the defendant proposed tenant (T). The parties had entered into an agreement for a lease of commercial premises from which T had intended to operate a small supermarket. The agreement had provided that the premises should be of specified minimum net internal area (NIA), and if NIA was not met T would have the option to terminate the agreement. The NIA was to be ascertained in accordance with the RICS Code of Measuring Practice ed 5. L's expert determined that the NIA of the premises was 1,871.1 square metres, which included the area occupied by the goods lift and the disabled lift. T served upon L notice terminating the agreement on the ground that the NIA was less than the minimum area. T disputed certain areas included within L's NIA figure. L argued that the NIA was in excess of the specified minimum and it was entitled to specific performance of the agreement.


The code provided that NIA was the usable area within a building measured to the internal face of the perimeter walls at each floor level. An area was usable if it could be used for any sensible purpose in connection with the purposes for which the premises were to be used. That was the case whether or not it was floor. Such space would be within NIA subject to the express exclusions in section 3 of the code. The area occupied by the lifts was excluded from NIA, as the lifts formed part of the works to be carried out by L, and the correct time for ascertaining NIA was immediately after the date of practical completion. The measurement of the premises should be in their actual state at that time and it would not be correct to include any area that fell within any of the exclusions in section 3 of the code, unless that was work carried out by or on behalf of T that L it was not obliged to provide. Where a fire escape route passed through an adjoining area that was rendered incapable of practical use, that area should be excluded from NIA. The sloping area, basement ramp and front plinths were usable and fell to be included in NIA. The NIA of the premises was in excess of the minimum area provided for in the agreement and L's claim for specific performance succeeded.

Judgment for claimant.