Upward Development – The Extra Layer

Whilst recent proposals to simplify the planning process for upward development in London will no doubt be welcomed, this article outlines some of the other issues for property developers and investors to consider when looking to intensify land use in this way.

In response to the London housing crisis the Department for Communities and Local Government and the Greater London Authority have launched a joint consultation on streamlining the planning process for upward development (i.e. the construction of additional storeys on top of existing buildings) in London. Their paper seeks "views on an innovative approach to supporting housing supply by providing greater freedom to 'build up' in London, reducing the pressure to 'build out'". Three proposals are identified for stimulating the delivery of new homes through upward extensions: a permitted development right, local development orders and/or new London Plan policies.

The proposed right is likely to be limited to building up to the roofline of adjoining buildings. It will also be excluded in the case of listed buildings (including their curtilage and, more widely, their setting). Prior approval by the local authority will apply in Conservation Areas, therefore engaging the legal duty to avoid any adverse effects other than in exceptional circumstances. As such, even with a simplified process, there will still be planning issues.

On top of these residual planning concerns there are other matters that prudent developers should consider prior to embarking upon any scheme to extend upwards.

Do you have the right to build into the airspace?

There is a presumption that ownership of a parcel of land includes the airspace immediately above to the extent that it is necessary for the ordinary use and reasonable enjoyment of that land. However, where a building is tenanted and the landlord wishes to extend upwards, it will be necessary to check that the airspace has not (either deliberately or accidentally) been demised to one of the tenants.

Whilst each case will turn on its own facts and the construction of the relevant letting documents, the Court of Appeal decisions in Davies v. Yadegar [1990] 1 EGLR 71 and Haines v. Florensa [1990] 1 EGLR 73 will be of interest. In both cases (which concerned tenant alterations and the application of the Landlord and Tenant Act 1927) the Court of Appeal held that, as the relevant letting documents specifically demised the roof, the demise extended to the airspace above. In Davis v. Yadegar Lord Justice Woolf acknowledged that it would be more difficult to determine the position where the building was a multi-let block of flats where the roof was not specifically demised to one tenant.

If the airspace has been let to a tenant then a landlord will be prevented from extending upwards during the term of the lease.

Are you committing a criminal offence?

A critical question for anyone dealing with a building which is either wholly or partially let to residential tenants is whether or not the Landlord and Tenant Act 1987 (1987 Act) applies.

It is...