Whitefox MD Darren Frias-Robles looks at airspace developments and we meet Managing Surveyor Andy Keen

Airspace or ‘rooftop’ development provides the opportunity to provide thousands of new homes. Airspace developments are complicated and have unique risks attached to them that need to be carefully considered at an early stage. By their nature, they require a lot more investment up front by a developer prior to considering planning. Below is a summary of the key considerations.

Planning – General Permitted Development Order 2015 (as amended) (the GPDO)

In August 2020, permitted development rights were introduced which include permitting the creation of additional residential units on top of existing buildings. Prior Approval is required for these additional storeys.

An application for prior approval is different to that of a full planning application. For Prior Approval, the local planning authority should be limited as to what they can consider. In reality, however, planning authorities often restrict airspace development, particularly following the case of CAB Housing Ltd v Secretary of State for Levelling Up, Housing and Communities [2022] which widened the scope of factors Local Authorities can consider when making their decision.

Legal Title

Alongside the usual legal review on title, it is essential at an early stage in the process to uncover whether there are there any restrictive covenants or similar restrictions that apply to a site or building that will prevent airspace development from proceeding. This can include rights granted over the roof (e.g leased solar panels etc), use of any roof voids for storage or installation of any plant & equipment etc.

Unless full legal due diligence has been completed which confirms there are no third parties with any rights over the airspace / roofspace, there is significant risk that any development could be prevented by a third party with an overriding interest.

Section 5 Notices Landlord & Tenant Act 1987 (LTA 1987)

Prior to sale of the airspace to a third party, the landlord / freeholder is required to serve notice on existing tenants giving them the option to purchase the airspace. If within 2 months of the date of serving notice 50% or more of the leaseholders wish to purchase the freehold, they can exercise their right to purchase the airspace (which must be on the same terms offered to the prospective purchaser).

It is not possible for a third-party purchaser to enter into any form of binding contract for the purchase of the airspace (including any option agreement) until the expiry of the statutory 2 month notice period.

Legal – Collective Enfranchisement – Leasehold Reform Housing and Urban Development Act 1993

The 1993 Act provides the right for ‘qualifying tenants’ of flats in ‘relevant premises’ to acquire the freehold interest in premises. The UKUT (Upper Tribunal) held in Barrie House (Freehold) Limited (2014) that the airspace above a building was part of that building and thus was covered by the 1993 Act. This also poses a risk to potential acquisition of an airspace for development. It is important to fully understand the temperament and aspirations of any leaseholders prior to entering into any binding agreement on any airspace development opportunity.

Rights of Light (RoL) to Neighbouring Buildings

A right of light survey should be carried out at the earliest opportunity and the survey should cover the following points:

1. Survey assessment to confirm whether rights of light are injured.
2. Provide an assessment on compensation valuations where risks are identified.
3. Identify injunction risks.
4. Provide advice on the appropriate strategy for dealing with rights of light risks.

If RoL are established and neighbours take legal action, it could result in a Court issuing an injunction preventing the development from being constructed or compensation to neighbours (the costs of which can be significant and, in some cases, prohibitive).

Building Safety Act 2022 – One significant change to the building regulations is the requirement for buildings with a top floor over 11 metres above ground level (5 storeys) to be fully sprinklered.

Many local authorities interpret this requirement as applying to all the flats within the building and that it includes a requirement to retrofit sprinklers to all existing flats if the building is extended in height taking it over the 11m threshold. This could potentially render a development undeliverable if consent is not available to enter existing leaseholder’s flats to undertake this work.

Structural Assessment – it is important to understand whether the existing building will accept the additional structural loads imposed on it by any additional floors that are to be added. Typically this will entail an assessment by a Chartered Structural Engineer.

Darren Frias-Robles FRICS is a Chartered Surveyor (Fellow of the RICS) with over 25 years of experience in development and construction. Darren is owner and Managing Director of Whitefox – Chartered Surveyors www.whitefoxgroup.co.uk

E: [email protected]

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Meet the Team

Name: Andy Keen

Role: Managing Surveyor

Time at Whitefox: 2 years

• Tell me about your background and how you ended up in this role?

I’ve been involved in the construction industry for 30+ years. I enjoy working on diverse projects, both large and small and the surveying profession provides that diversity of projects and challenges.

• What do you enjoy most about your work here?

I enjoy being actively involved with the development and fostering of new talented surveyors such as the ones we have here in the office and also maintaining the close Client relationships we value so highly here at Whitefox.

• What’s the most interesting project you’ve worked on recently?

One of our clients is a young property developer who has been working hard to create and deliver quality residential properties over the last couple of years. Working with and helping to bring to fruition those ambitious projects has been a real joy. Their team has grown significantly in knowledge and numbers and have required quite a lot of handholding and access to our contacts to grow.

• Do you have any hobbies or interests outside of work?

Rugby – watching, not playing unfortunately at North Dorset Rugby Club.

• Do you have any books or podcast recommendations that you listen to?

I listen to a lot of French language podcasts to maintain and develop my French.

• If you could travel anywhere in the world, where would you go and why?

France, I find myself to be very happy there.

• Do you have an idol or someone who inspires you?

My children, all grown up now but they impress me every day and see the world with new fresh eyes. I learn a lot from their take on life.

• What’s the first thing you bought with your first pay check?

Probably a pint.

• If you weren’t doing this role, what might you be doing in an alternate reality?

I’d still be involved with the construction industry, it allows you to take different paths and develop new paths.

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