High Court judge rules against developer's garden square encroachment

Yesterday in the High Court of Justice the Royal Borough of Kensington & Chelsea won its battle against a development company which has attempted to expand its property into the communal garden land at Courtfield Gardens West, SW5. The result follows a campaign by the garden's residents, Garden Square News, and Robert Barham, a solicitor who is an expert in garden law, to have the encroachment halted. 

The development company involved in the case is Eliterank Limited, a subsidiary of Amazon Property, whose director is Charles Gourgey. The planning advisor used by the company was Nick de Lotbiniere of the property firm Savills.
Holly Smith, Editor and Publisher, Garden Square News

The following is Solicitor Robert Barham's summary of the case.

COUNCIL WINS IMPORTANT GARDEN CASE

On 10 February 2015 the Planning Court of the Queen’s Bench Division of the High Court handed down its judgment in the case of The Queen (on the application of Eliterank Limited) and the Royal Borough of Kensington and Chelsea. The case is important because it 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. The case was won by the council and may represent a significant victory for all those who wish to preserve the integrity of London’s gardens from encroachment by neighbouring owners and developers.
The background
The case related to the development of a light well at the rear of 25 Collingham Road, London SW5 owned by Eliterank. The owner of that property, which backs directly on to Courtfield Gardens West, wanted to develop a light well projecting into the garden to a depth of 3.5 metres below ground level and occupying 25.5 square metres. The trustees of the garden accepted that 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 under the provisions of the Kensington Improvement Act 1951 objected to the development. The developer’s application for planning permission to excavate the light well was successful and planning consent was granted in November 2012. However, the developer was always 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.
Eliterank proceeded with the excavation work and the light well is now finished. When they were warned by the council that the council considered that the works were in breach of the 1931 Act the developer then sought consent under that Act for approval from the council. The council took the view that they were unable to consider the application because such works were not contemplated in the 1931 Act and therefore rejected the application. At this point, the developer sought judicial review of that decision by the council and this was the subject matter of the High Court case.
The London Squares Preservation Act 1931
The 1931 Act prohibits a development of protected gardens in London and contains a detailed description of all the relevant gardens of which Courtfield Gardens West is one. 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.
The Case
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.
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 will presumably therefore now proceed with that enforcement action and it remains to be seen whether they will be successful.
Robert Barham
Senior Partner
Pemberton Greenish LLP
10 February 2015
Robert Barham and Pemberton Greenish are retained by the Royal Borough of Kensington and Chelsea to provide independent legal advice to the committees which run communal gardens in the borough under the provisions of the Kensington Improvement Act 1851 and the Town Gardens Protection Act 1963. In this case, Pemberton Greenish acted for the secretary of the Courtfield Gardens West Garden Committee and the Trustees of Courtfield Gardens West who were both named as interested parties although they took no active part in the case itself.

February 11, 2015 | Garden Square News