Can freeholder build above my penthouse?

euromike

I own a leasehold penthouse in a 4-storey purpose build residential block in London. Recently the freeholder submitted a planning application to add a flat above mine. There are numerous reasons why this would affect me negatively, and not just construction noise. For instance, the value of my apartment would likely be affected, as it would no longer be a top floor flat with no-one above. Two, the entire roof would have to come off as it's currently of timber frame construction, and be replaced by a steel frame. My entire family would have to move out for several months.



I have no interest in compensation, I just don't want this development to happen. Is my consent necessary for something like this to proceed? I can obviously object to the planning application, but what is my recourse (if any?) if that were to be approved?

davidmcn

It's not that uncommon a type of development these days. I wouldn't have thought they'd go to the expense of submitting a planning application before checking that the leases permit it, but you'd really need advice on what your lease says. Has the developer actually told you that you'd need move out for several months?

Owain_Moneysaver

You can only object on grounds of valid planning consideration. Any other objection will be ignored.

• construction noise - would usually be dealt with by a planning restriction on work during daylight hours only
• loss of value - not a valid planning consideration
• removal of roof during construction - not a valid planning consideration
• decant of occupants - not a valid planning consideration

Valid planning considerations may include

• height of building and effect on streetscape, especially if higher than neighbours - but if the development is set back from the frontage that will reduce its impact
• increase in density - but in London the demand for housing may outweigh this
• lack of parking - may be less relevant in London where fewer people own cars, but if the development already has x parking spaces for y flats you could object to a reduction in this
• inadequacy of refuse storage arrangements - although this would probably be pretty marginal

Whether your permission is required, and for what, will depend on the terms of your lease, and you probably need a solicitor who's expert in residential leases. It's a complicated field.

euromike

My lease doesn’t include the air rights, nor anything structural so the developer could legally do what he wants.
A structural engineer familiar with the block, on seeing the structural plans, told me this sort of development would mean we’d have to move out for several months.

da_rule

You may want to check your lease to see what it says about the freeholder being able to access your property for the purpose of improving the building. Improving is different from maintaining/repairing.

You then may want to take some advice on whether adding an additional floor is actually an improvement at all.

euromike

I’ll check the list and find a solicitor.
Like I wrote though, an architect and a structural engineer both were 99% sure the roof would have to come off. Granting access to my property is one thing, but would any lease ever give the freeholder right to tear my roof off?? Not to mention tiny details like, and additional floor would cover my skylights, reducing light in the apartment.
I have no idea as to the freeholders’ intention, all I have is a letter from them (not the council yet though) notifying of the application being submitted, with no plans, drawings, etc. The whole situation is bizarre, but the freeholder has in the past made alterations to the development without consulting residents, without planning permission, and following the council’s explicit refusal of retrospective application! He did win the appeal though. In short, the freeholder has a history of going ahead with controversial/borderline alterations, as long as there’s money for him in it.

phill99

euromike wrote: »

but would any lease ever give the freeholder right to tear my roof off??

It isn't your roof. It's the freeholders.

euromike

phill99 wrote: »

It isn't your roof. It's the freeholders.

Understood. Tearing it off would mean the flat wouldn’t be usable. Is that what normally happens - residents are just ordered to move out?

Ozzuk

They will likely encase the roof in scaffolding and put a temporary floor down. Perhaps the developer will buy your flat? I'd say the skylights might be your best route to objecting but I don't know how successful you will be.

ethank

euromike wrote: »

I’ll check the list and find a solicitor.

If you want to challenge a planning application better off with a planning consultant

Owain_Moneysaver

ethank wrote: »

If you want to challenge a planning application better off with a planning consultant

Yes, but the chances of a planning objection being successful in blocking this development are fairly slim. There's such a shortage of housing in London that there's a strong presumption for the development to be granted.

Even if planning isn't granted, the freeholder may decide to proceed without it anyway.

If the development is contrary to the terms of the lease then the OP can probably get an injunction against the freeholder which will positively stop the development.