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Building up

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Permitted development rights in place since 1 September 2020 allow homeowners to extend upwards without planning permission. But it’s not without obstacles, says Derek Inkpin from solicitors Wiseman Lee

As ever in life, the devil is in the detail, and specialist advice is required if you plan to extend your home upwards. One big no-no is if you have a house built before 1948 (and therefore much of the local area), this relaxation will not apply to you and planning permission will still be needed.

Under the new rules, and subject to height restrictions and pitch of roof, if your house is built after 1948 you can extend your home up to two storeys to contain new flats on top of the existing structure. Extensions on existing extensions are not possible under the new rules and your property will not qualify if you live in a conservation area.

Despite government encouragement to build flats and communal buildings in urban areas on top of existing buildings, the law nevertheless steps in to ensure certain measures are followed. Thus, if you are a freehold owner of a block of flats, you could be up against a number of issues, including:

The rights of existing tenants under the Landlord and Tenant Act 1987, with the right of first refusal to the proposed development.

Breach of a landlord’s obligation to provide quiet enjoyment to the existing leaseholders, who may take legal action if the development is without their consent.

Party wall matters.

Overage when selling a building which has a potential for roof space development could result in a substantial payment to the seller if the development proceeds.

Issues with collective enfranchisement (the right to collectively seek the acquisition of the freehold and the right to manage), which is protected in law.

Insurance and health and safety issues.

Service charge issues.

Dealing with existing telecom masts.

Dealing with who owns the air space. Get this wrong and the leaseholders affected could halt the development.

A good firm of urban architects will be required and a structural engineer to make sure the existing block is strong enough to support the development. And then comes all the legal work involving all the parties affected and their mortgage lenders. All achievable, but strong determination, hard work and a substantial financial outlay will obviously be required if success is to be guaranteed.


Wiseman Lee is located at 9–13 Cambridge Park, Wanstead, E11 2PU. For more information, call 020 8215 1000

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