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Roof terraces; The Importance of Being Legal

22 November 2022

Q: I recently bought a London apartment that has an unused roof space. Do I need planning permission to use it as a terrace?

A: There are a host of reasons why property owners may want to capitalise on confirming the lawful use of their roof terrace. One, it will most likely increase the value of the property and two, a terrace is a great feature for hosting guests or just to use as a chill-out spot to relax and watch the sun go down. Whatever the reasoning, confirming the lawfulness of a roof terrace will be beneficial to the property owner and will ensure that the local planning authority (LPA) does not take enforcement action against such use.

So, is planning permission necessary to use a roof space as a roof terrace? Local authorities have not always acted consistently on this question. As a result, the question regularly comes up at appeal and has been discussed in the courts. The bottom line is that using roof space as a terrace should not constitute a material change of use and therefore should not need planning permission (R (on the application of Nisbet) v SoS for Communities and Local Government [2014] EWHC 1202). The key takeaway is that a roof terrace is ‘incidental to the enjoyment of the dwelling house’ and is ancillary to the existing residential use.

However, if a previous owner of the property has undertaken works to the roof space (e.g. installation of safety railings and decking) it will be necessary to check when these were carried out and if planning consent was granted. This is because physical works may have needed planning permission. It is only the use of a terrace that is automatically lawful. If the roof works were undertaken without planning permission the LPA could commence enforcement proceedings and compel the owner to take the works down and reinstate what was previously there.

If, on the other hand, the current owner can prove that the works were undertaken over four years ago then the works become immune from enforcement action and are deemed to be lawful. To confirm the lawfulness of the works it is possible to apply to the LPA for a ‘Certificate of Lawfulness”. As long as there is clear evidence of the works being in situ for over four years, the LPA must issue a Certificate.

Separate to the planning issues and assuming the property is held on a lease, the owner should check that the roof terrace forms part of the property and if so whether the freeholder’s consent is required before carrying out any alterations to the terrace.

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