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Airspace Development Schemes

Airspace Development Schemes

Since August 2020 freeholders have been able to develop the airspace above the roof of the building without full planning permission under permitted development rules.

This new rule allows up to two additional storeys, where the existing building consists of two or more storeys; or one additional storey, where the existing building consists of one storey.

The initial building must have been constructed between 1st July 1948 or after 28th October 2018. For the most part and for comfort, prior approval will be sought first.

Freeholders (which we shall describe as the building owners in this note as that description could include a leaseholder with a pre-existing interest in the rooftop) with appropriate buildings ripe for such development will want to consider how they can maximise the value in their rooftop. If they feel bold or have prior experience then they might look to build the extra storeys themselves.

If not, they will look to other options.

The easiest and cleanest method is to sell their interest to a third party who does have the relevant expertise and financial backing to build the extra storeys. However, this may mean selling the reversion to pre-existing tenancies which will mean a loss of the ground rent income. The benefit of this route is that the building owner does not have to police the development and mediate between a new rooftop leaseholder and the existing leaseholders who may not welcome development. A sale of the building owner’s interest might either mean selling their property or, if the property is held by a company, selling the shares in that company.

Alternatively, rooftop and airspace leases are becoming more common. Coupled with other necessary rights such as licences to alter and scaffolding rights, a grant of a lease to a developer creates a leaseholder of that developer and grants the ability for the developer to build on the rooftop.

An alternative is that the building owner might seek to grant a developer rights to build the extra storeys. If this method is used then thought will have to be given as to how the developer will receive the financial benefit of having done so. One option is securing a joint venture agreement prior to the development in which the building owner and the developer agree what will happen with the additional storeys once constructed and how the profits will be split. Alternatively, the building owner and developer might consider a promotion agreement directing that the dwellings created by the additional storeys are marketed, sold and the profits dealt with in accordance with that agreement. Ultimately, if the developer has no proprietary interest in the rooftop, it will have to be the building owner that grants any leases to the end user.

Such a variety of options creates opportunity for the contracting parties to decide how to structure the deal financially. A developer might pay the building owner for the deal in advance of construction or sale or, alternatively, the building owner may defer payment by agreeing to be paid out of the sale proceeds.

If you have any questions on how to structure a rooftop development deal, please contact Meaby & Co at nc@meaby.co.uk or on 020 7703 5034.

We also have a website dedicated to this area of law: Rooftop Law