In a case which involved an interesting analysis of leasehold interests in empty air space, the High Court has stymied a developer’s controversial plans to build flats above two garage blocks, many of the tenants of which objected to the proposals.
The garages were held under 999-year leases. The freeholder of the premises had granted a lease of the air space above them to a developer who proposed to fill that space with two new flats. The majority of the garage tenants were opposed to the plans, which had also caused issues between the developer and the freeholder.
The Court noted that, if all parties had been agreeable, it would have been sensible to demolish the 1960s-built garages and start again. However, as the parties were not prepared to adopt that approach, the developer had proposed suspending the flats above the garages on steel columns resting upon their own foundations.
On a correct reading of the garage leases, the Court found that the demised premises included not only floors, doors and walls of the buildings but also their roofs, the sub-soil beneath them and the air space above them.
Although there was nothing in principle to prevent erection of the steel columns, the proposed flats could not protrude beyond the garages and the tenants would be able to complain of trespass to their foundations and sub-soil. In those circumstances, the Court acknowledged that ‘the proposed development cannot proceed’.