Planning permission, certificate of lawfulness and legal right to access land

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    Planning permission, certificate of lawfulness and legal right to access land

    We are a first floor flat trying to get legitimate access to the garden that we own.

    Background: We share the freehold with the ground floor flat. The Victorian property was legally converted into the 2 flats in the 1970s, each flat owning a strip of the garden which had be split down the middle. When we bought the first floor flat 5 years ago, there was no access to the garden. The door of our back room opens out onto the ground floor flat’s small extension and the previous owner had a ladder down from the flat roof to the garden. Apparently stairs used to be there but had burnt down and were never replaced. We applied for planning permission to enclose the flat roof area as a terrace and stairs down to our garden. We were denied planning permission and also lost on appeal with the Council concerned about privacy and overlooking the neighbours. At the time we built the stairs anyway and had an enclosed walkway area from the back door over the flat roof to the stairs so we could access our land. Four years passed in July 2020 and we had planned to apply for a certificate of lawfulness. Unfortunately our tenants damaged the balcony walkway in June and the balcony walkway area has to be removed and replaced. The stairs are not damaged and still there.

    1. What are the chances of getting a new plan (one with no terrace, just stairs and stair landing on the flat roof) granted, when we had planning permission denied for the original plan and also lost on appeal?
    2. Would it be better to apply for certificate of lawfulness for what remains there ie the stairs?
    3. Do we need the other share of freeholder’s consent to apply for a certificate of lawfulness? What happens if they object to it?
    4. If we are not successful with planning permission or certificate of lawfulness, what recourse do we have to access the garden we own? Especially given the Council allowed the flat and garden to be split in the 70s and so must have intended for the first floor to access their garden?!

    Thank you

    When someone uses the words "share of a freehold" it needs to be established what is actually meant.
    If two people are named as the freeholder on a register of title they are the single legal proprietor.

    It is possible that by using deed of trust each person is a tenant in common owning 50% share of the freehold.
    That way it would be possible to dispose of that 50% share when selling the leasehold flat.

    It still means that when the freeholder needs to execute a legal document,such as an extension to a lease, it will require both of the named parties on the Proprietorship Register to execute any deed.

    The upper flat's leasehold title ought to have a right of way granted by the lease that will show how access to the garden was to be taken.
    Apparently stairs used to be there but had burnt down and were never replaced.
    That quote would suggest that would have been the case, otherwise there would have been an implied easement when the garden was included in the demised area in addition to the flat itself. It could be possible that the extension to the ground floor flat was built over land that was intended to be part of a right of way, or did that extension exist when the two flats were created?

    The fact that you created a walkway on top of the ground floor apartment's flat roof also suggests that there was a right of way granted over a defined route.

    As long as the owner of the downstairs flat is not objecting it seems sensible to replace the damaged walkway as soon as possible without seeking any permission from the local planning authority.

    Until such time as the Enforcement Officer calls on you to discuss the new walkway and the use of the existing stairs it seems sensible to have nothing to do with the LPA. Replacing an existing structure because it was damaged may not meet the definition of development, as long as the repaired structure is the same shape and size as the original one. That type of repair does not usually require planning permission, especially if you have photos of how the original walkway had been constructed more than 4 years ago. You would be repairing a lawful development now that over 4 years had passed that prevents enforcement action by the LPA.

    Just continue to liaise with the ground floor flat's owner so that he does not object to what is proposed.
    That should mean that no one would be interested in informing the LPA about your access to the rear garden that is part of the land demised by your lease.
    It would only be a brief period when you walked over the roof to access the staircase, rather than proposing that it became a terrace for sitting out on every sunny day, which is probably what caused your planning application to be refused and the appeal to be dismissed.


      Thank you for your comprehensive response. Yes we and the downstairs neighbour are the freeholder. We then have a leasehold for the first floor flat, and the deed defines the first floor flat as including “the flat roof of the downstairs extension”. Our understanding is the extension existed at the time the flats were split, but we would need to see the original Council documents to be absolutely sure.

      Unfortunately the downstairs neighbour is objecting to the repairs to the walkway and wants us to put in a whole new planning application. We are nervous to put in a new application as we are worried it will be declined again. Do we need his consent to repair what we built? (he’s not consenting because we didn’t have permission in first place and didn’t have building control authority involved/signing it off)?

      To complicated matters, unfortunately the damage to the walkway happened two weeks before the 4 year anniversary!

      We ideally want want to get this issue sorted so we can sell the property.

      Thank you


        the deed defines the first floor flat as including “the flat roof of the downstairs extension”.
        That would seem to confirm that repairing something that was positioned on the land demised by the lease is nothing to do with the freeholder, nor the owner of the leasehold ground floor flat.
        Many leases include a clause stating that alterations will need the permission of the Freeholder, but repairing something that is part of the demised flat is not the same as altering.
        If an internal wall or door had been fire damaged, I do not think that seeking permission to repair would have been necessary.

        An alternative would be to construct a free standing timber walk-way that just lays on top of "the flat roof of the downstairs extension" so that it will provide safe pedestrian access to the top of the existing staircase.

        That will not meet the definition of development, so that the LPA can do nothing about that "temporary" structure.
        It is also unlikely that the Freeholder will object, since you are one of the joint owners, unless there is a mechanism in the trust deed confirming how a 50-50 decision can be settled.


          Thank you - this is really helpful. Yes our Deed does say that any alterations need the permission of the freeholder. Our neighbour (co-freeholder) seemed happy for us to build the stairs and walkway back in 2016 but we don’t have anything in writing. He is now saying that because we don’t have planning permission he doesn’t consent.

          Repairing something is not the same as altering”

          Are you referring to us putting the stairs there to begin with (ie repairing what had been there a long time ago as shown in the lease documents), or is repairing today what we built four years ago?

          “An alternative would be to construct a freestanding timber walkway...”
          The walkway we did construct in 2016 had beams that rested on the flat roof. This has now been damaged (through fire) and has had to be removed. The neighbour has objected to the walkway resting on the flat roof. They have said that’s illegal and against building regulations to have it resting like that. This is a key reason why they are not “consenting” to us repairing how it was. We want to get a professional opinion as we refute it’s against building regs.

          “That will not meet the definition of development, so that the LPA can do nothing about that "temporary" structure.”

          Where is “development” defined? I’d be interested in looking this up.

          Thanks again - this has been super helpful


            Town and County Planning Act 1990 Section 55 defined Development.
            55 Meaning of “development” and “new development”.

            (1)Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

            (1A)For the purposes of this Act “ building operations ” includes—

            (a)demolition of buildings;


            (c)structural alterations of or additions to buildings; and

            (d)other operations normally undertaken by a person carrying on business as a builder.

            (2)The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

            (a)the carrying out for the maintenance, improvement or other alteration of any building of works which—

            (i)affect only the interior of the building, or

            (ii)do not materially affect the external appearance of the building,

            and are not works for making good war damage or works begun after 5th December 1968 for the alteration of a building by providing additional space in it underground;
            Laying something on the flat roof that is part of the land demised by your lease is not an "addition" to the building, in the same way that having a large teak wood table with six large teak wood chairs positioned on the garden patio of a house is not an addition to the building.

            That is why the timber walk-way needs to be separate from the roof. It is a chattel not attached to the building.
            It just has to provide a means of walking across the flat roof you own that spreads the weight over a wider area than single footsteps would do.

            You can also read the whole of the Building Regulations, but I doubt that there is any part that relates to a free standing walkway on a flat roof.

            Perhaps you need to ask the neighbour to confirm the Section where he saw such a regulation.

            It would appear that you do not need an easement to walk over the flat roof that provides the cover to the ground floor flat, because your lease stated that its surface is part of the land demised by the lease.

            Just because the neighbour is the owner of the Leasehold ground floor flat there is nothing that requires that person's permission to do what you want to your own leasehold property. Nor does there seem to be any need to seek the permission of the Landlord to repair a fire damaged chattel that serves a useful purpose for you as an individual rather than as the Leaseholder.

            Imagine the neighbour complaining about the size and weight of an extremely large new wardrobe when he saw it being delivered.
            What would you tell him to do about that?


              Yes great points. Thanks again for your help


                Originally posted by pilman View Post
                That is why the timber walk-way needs to be separate from the roof. It is a chattel not attached to the building.
                It just has to provide a means of walking across the flat roof you own that spreads the weight over a wider area than single footsteps would do.
                What follows is intended to apply to landlord and tenant/real property law only.

                When is a fixture not a fixture? That can be a tricky question to answer and anyone who has looked at the cases will conclude that there are no hard and fast rules. That is why when residential property changes hands there is a long questionnaire which details what the seller intends to remove or leave. To determine if something is a fixture you have to look at the degree and purpose of annexation. Merely fixing something to a property does not make it a fixture if it is fixed so that it can be enjoyed; a classic example is hanging a mirror or picture. Equally, a feature does not need to be nailed or screwed down or cemented in to be a fixture if it would be regarded as permanent; examples would be paving stones laid on the lawn or a large garden feature such as a statue which is "fixed" by sheer weight.

                A solid garden table is not a fixture because it would not be regarded as permanent, is not fixed to the ground and can only be enjoyed as a garden table by being in a garden. A timber walk-way however is getting very close to being a fixture. It will have been tailor-made for a particular site so that it (probably) cannot be used elsewhere without alteration, would be regarded as permanent and the purpose of its installation is not so much to enjoy it as a walk-way but to improve the facility of the roof terrace or enhance its appearance.


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