Court rules on basement extension dispute

By Commercial Property Team Fri 15 Aug, 2014

In a case which raised novel issues of interest to landlords and tenants, as well as to charities, a homeowner has suffered a costly defeat in a marathon legal campaign to block his neighbours’ plans for an underground swimming pool and wine cellar complex.

The properties formed part of Hampstead Garden Suburb, which contains some of England’s finest examples of 20th Century domestic architecture. The character and appearance of the area are safeguarded by a local charity, the Hampstead Garden Suburb Trust Limited, in accordance with a statutory scheme.

The homeowner feared that his neighbours’ proposals would seriously affect the flow of ground water in the area, destabilising the foundations of his property and leaving his garden as ‘dry as dust’. He had employed the services of an eminent hydrologist and soil expert to support his objections.

His neighbours had presented their own expert evidence to the Trust, which had said that it could see ‘no clear and unambiguous reason’ why consent to the basement development should be withheld. The homeowner subsequently failed to persuade the High Court to grant an injunction to restrain the Trust from issuing consent until there had been a full investigation of his concerns and safeguards put in place to protect his property.

The homeowner held his property through a company, under a 999-year lease from the Trust, and his lawyers argued that, if it consented to his neighbours’ plans, the Trust would be violating a covenant in the lease guaranteeing his ‘quiet enjoyment’ of his home. His neighbours owned the freehold of their property.

In dismissing the homeowner’s appeal, the Court of Appeal found that the Trust’s bona fide exercise of its powers ‘for the public good’ under the statutory scheme could not amount to a breach of covenant. The quiet enjoyment clause in the lease of one of its own tenants could not be read in a way which prevented or fettered the Trust’s use of its powers for the benefit of all the residents of the 800-acre suburb.

For more information on this subject or any other legal matter, please contact us:

Tonbridge: 01732 770660 | Sevenoaks: 01732 747900 or email

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