A victory for communal gardens

27 May, 2015
by: Cripps Pemberton Greenish

On 10 February 2015, the Royal Borough of Kensington and Chelsea won an important High Court case against Eliterank, a property developer, relating to the development of a light well in a basement excavation that backed onto a communal garden, considered to be one of the most beautiful garden squares in London. The case represents a significant victory for all those who wish to preserve the integrity of London’s gardens from encroachment by neighbouring owners and developers.

The case is the first known case to have been taken under what was until now considered to be an obscure piece of legislation, the London Squares Preservation Act 1931, which prohibits the development of protected gardens in London. The case centred on the development of a light well at the rear of 25 Collingham Road, London SW5. Planning consent to excavate the light well was granted in 2012, despite warnings from the Council that this was contrary to the 1931 Act, and the light well is now finished.

When warned they were in breach of the 1931 Act the developer sought consent under that Act for approval from the council which took the view that such works were incapable of being approved under the Act. The developer then sought judicial review of that decision which went to the High Court.

Commenting on the judgment, our Senior Partner, Robert Barham, who was retained by the Courtfield Gardens West Garden Committee, said:

“This case is important for all those interested in preserving the integrity of London’s garden squares, whether they be members of garden committees, local authorities, owners or residents. It shows that the 1931 Act cannot be ignored and it provides a viable weapon to fight unscrupulous neighbours and developers who would like to encroach on a protected garden.”

“It will be interesting to see to what extent it will now be used against those who have already developed basements under communal gardens and whether they will now be forced to return land to its original use. Developers have been warned!”

Prior to the commencement of the case the council had resolved to seek enforcement action against Eliterank for the removal of the newly constructed light well. The council is expected to proceed with that enforcement action and it remains to be seen whether they will be successful.

The London Squares Preservation Action 1931
The 1931 Act prohibits a development of protected gardens in London. However, there is an exception which permits the development and use of the subsoil of the garden provided that it does not interfere with the enjoyment or maintenance of the garden itself. Temporary excavation of the surface while underground works were constructed could be permitted under the Act as could entrances, exits and ventilations shafts associated with underground works. It is on this basis that some gardens have had underground car parks constructed beneath them with some loss of space for entrance ramps and ventilation shafts etc.

Background to the case
Eliterank, the owner of 25 Collingham Road, wanted to develop a light well projecting into Courtfield Gardens West. A deed granted in the 1960s gave the owners of the property a legal right to carry out the excavation but the committee that runs the garden objected to the development. The developer’s application for planning permission to excavate the light well was successful and the light well is now finished. However, the developer was warned that the grant of planning consent did not constitute consent under the 1931 Act and the development could still be contrary to that Act.

The main argument in the case was whether the construction of the light well constituted underground works which the council could then authorise under the provisions of the Act. The developer argued that “underground” meant beneath surface level and that the construction of the light well would not constitute an undue interference with the use and enjoyment of the garden.

The Council argued that underground meant, literally, under the ground and that a development which removed part of the subsoil of the garden and left it exposed to the air and restricted access so that only the occupiers of the adjacent basement flat could use it could not be permitted under the relevant provisions in the Act. In his judgment Mr Justice Supperstone agreed with the Council that they had no standing to consider an application of the nature submitted to them by Eliterank. He therefore rejected Eliterank’s application on all five grounds on which they had sought to challenge to the decisions of the council.

The case therefore confirms:

  • That the 1931 Act remains a valid piece of legislation and should be taken into account by all those contemplating development of a garden square and, most importantly, by the councils that are charged with enforcing its obligations.
  • That the 1931 Act exists independently from planning legislation and planning consent does not constitute consent under the 1931 Act.
  • That councils charged with enforcing the 1931 Act can only give consent to underground works and cannot consider applications for other works which fall outside the definitions contained within the 1931 Act.
  • That works that have been carried out on land which once constituted protected gardens are unauthorised and are in breach of the 1931 Act and are therefore potentially subject to enforcement.