High Court decision may render garden square property development unlawful

In a decision dated 10 February, High Court judge Mr Justice Supperstone dismissed a developer's claim that a lightwell extending into a protected garden square could be considered underground development permitted by laws seeking to protected the capital's squares.

The London Squares Preservation Act 1931 seeks to prevent protected squares in the capital from development. It allows for the use of the subsoil under such squares for "underground works" and "underground buildings", or for the construction and maintenance of such works and buildings. It also allows for the limited use of the surfaces of squares for access to, or maintenance or construction of developments permitted within the subsoil.

Kensington and Chelsea Council indicated to developer Eliterank Limited in August 2014 that it was considering applying for an injunction under the Act, seeking the reversal of works the developer had commenced on a lightwell extending into the protected Courtfield Gardens West in west London. Eliterank responded by applying for consent for the works, claiming that they fell within those permitted by the Act, and challenged the Council's subsequent decision to refuse consent in the High Court.

Mr Justice Supperstone agreed with the Council that the definition of "underground" in the Act should be given its plain English use. He noted that, while the proposed lightwell was excavated into the soil, it affected not only the "subsoil", as permitted under the Act, but also the topsoil. The development, therefore, could not be considered to be permitted "underground buildings" or "underground works", the judge said.

The judge noted that, while limited surface works could be permitted under the Act with consent from the relevant local authority, these must relate to "underground buildings" or "underground works". The Council had, therefore, been correct to decide that it could not give consent for the works, Mr Justice Supperstone said.

Mr Justice Supperstone noted that his decision potentially had wider implications for other homes backing onto London's squares.

"If the [Council] is correct then not just the [developer] but the owners of 15, 17, 21, 27, 31 and 33 Collingham Road (and other owners with properties adjoining squares elsewhere in London) all face the prospect that the development to the rear of their properties, which in a number of cases has been in place for many years, is now to be regarded as unlawful under the Act and hence liable to enforcement, including removal by injunction proceedings."