Question 1

Planning permission required?

Accepted Answer

Q: We have a river running at the bottom of our estate with a separate channel separating the main estate grounds from an "island" in the middle of the river. We are looking to develop the landscaping on the island and are considering installing a footbridge, primarily for pedestrians but one that also may be able to take small machinery. Can you advise on whether we would need planning permission to install a bridge and what regulations may we have to adhere to in terms of Health and Safety etc? FPRA Legal Adviser Nick Roberts replies: This is certainly not a problem that has been raised with FPRA before, but I shall do my best to answer your query. The first point I would make is that, so far as English Land Law is concerned, a stream or river is simply land which is covered by running water. It can be owned in the same way as any other land. If someone owns land on either side of a watercourse, the chances are that they own the bed of the watercourse, too. The Environment Agency has certain powers over streams and rivers, but it does not actually own them. It may, for example, prevent a landowner from extracting water from a stream or river without a licence. One point which you should certainly clarify is whether your Association has the power to make alterations to the grounds of the estate at all. You write as the Chairman of the Residents’ Association, but I note from the specimen lease that there is a company, XXX Ltd. Normally when there is such a company, then, if it is owned by the leaseholders, it would be that company rather than any other body which would join FPRA Ltd. Occasionally, there may be both a management company and a residents’ association, in which case either would join. If you are simply the Residents’ Association, then you have no right to landscape part of the grounds, or to erect a footbridge to give access to the island. If you are in fact the Management Company (and in which case your membership name should really be amended), then the position needs to be investigated more closely. Although you have the power and responsibility under the lease to maintain the grounds, I would not construe these as extending to making substantial alterations to them. The grounds remain vested in the ownership of XXX Ltd, and any substantial alterations that you make within them should be done only with their consent. I would take the view that landscaping grounds which were previously left rough, and building a footbridge, would require their consent. There is a further possibility. If the legal structure of a development involves a series of what are called a ‘tripartite leases’ (i.e. freeholder, management company and leaseholder) then, if nothing more is said, the management company simply exercises its functions under the terms of the leases. Sometimes, however - usually only once the last lease has been granted - the freeholder then grants a further lease of all the common parts to the management company. Sometimes what is included in the lease is expressed to be, literally, all the property comprised in the freehold title number(s) which has not already been included in the leases of the flats or apartments. If you are indeed the management company, then you ought to be aware if there is such a lease. If you are in any doubt then, if you check the Charges Register section of the Land Registry Title for the freehold, you will see if a lease to the management company is recorded there as well as the individual flat leases. If there is a lease, then technically the management company and not the freeholder has possession of all the common parts. In theory this then means that the management company can do what it pleases with the common parts. In practice one would need to look at the terms of its lease of the common parts to see what it can do. Almost certainly there would be some restriction there on the management company making alterations to or erecting anything in the common parts without the consent of the freeholder. So, by either route, the result is likely to be the same. Assuming that the freeholder consents to the landscaping of the island and the construction of the freehold, you ought to check with the Environment Agency to see whether they would raise any objection to your proposals. I presume that the stream in question is not navigable, as clearly a footbridge would obstruct any navigation rights. I suspect that they do not formally record such rights, but they probably would be aware of any. They may also wish to comment if the bridge would affect fishing or riverbank wildlife. As far as planning permission is concerned, as a general principle any construction works will require planning permission from the local authority unless you can point to some provision of the General Development Order which says that certain works do not require planning permission. The Town and Country Planning (General Permitted Development) (England) Order 2015, SI No 20`5/596 is available on the Government legislation website (http://www.legislation.gov.uk/) under Statutory Instruments. This covers most of what one might think of as minor building works – porches and conservatories, etc., and walls and fences - but if something is not included there, it is likely to require planning permission, even if it does not seem very different in kind from something which is included. I can see no reference there to bridges. The obvious thing to do is to make informal enquiries of the local council as to whether they would require planning permission. If you are told that they do not, you should ask them to confirm it in writing. Bear in mind, if you go through the General Development Order, that when it refers to developments forming part of a dwellinghouse, it will not generally be possible for a block of flats to take advantage of a given exemption. As regards the Health and Safety aspects, if the bridge requires planning permission, then the Council will probably be aware of any formal safety requirements. Whether or not planning permission is required, I would have thought that you would protect yourselves by engaging structural engineers who hold themselves out as competent to design and/or construct a small bridge. They ought then to be aware of any more stringent formal requirements. [Submitted October 2016]

Question 2

Planning permission required?

Accepted Answer

Q: We have a river running at the bottom of our estate with a separate channel separating the main estate grounds from an "island" in the middle of the river. We are looking to develop the landscaping on the island and are considering installing a footbridge, primarily for pedestrians but one that also may be able to take small machinery. Can you advise on whether we would need planning permission to install a bridge and what regulations may we have to adhere to in terms of Health and Safety etc? FPRA Legal Adviser Nick Roberts replies: This is certainly not a problem that has been raised with FPRA before, but I shall do my best to answer your query. The first point I would make is that, so far as English Land Law is concerned, a stream or river is simply land which is covered by running water. It can be owned in the same way as any other land. If someone owns land on either side of a watercourse, the chances are that they own the bed of the watercourse, too. The Environment Agency has certain powers over streams and rivers, but it does not actually own them. It may, for example, prevent a landowner from extracting water from a stream or river without a licence. One point which you should certainly clarify is whether your Association has the power to make alterations to the grounds of the estate at all. You write as the Chairman of the Residents’ Association, but I note from the specimen lease that there is a company, XXX Ltd. Normally when there is such a company, then, if it is owned by the leaseholders, it would be that company rather than any other body which would join FPRA Ltd. Occasionally, there may be both a management company and a residents’ association, in which case either would join. If you are simply the Residents’ Association, then you have no right to landscape part of the grounds, or to erect a footbridge to give access to the island. If you are in fact the Management Company (and in which case your membership name should really be amended), then the position needs to be investigated more closely. Although you have the power and responsibility under the lease to maintain the grounds, I would not construe these as extending to making substantial alterations to them. The grounds remain vested in the ownership of XXX Ltd, and any substantial alterations that you make within them should be done only with their consent. I would take the view that landscaping grounds which were previously left rough, and building a footbridge, would require their consent. There is a further possibility. If the legal structure of a development involves a series of what are called a ‘tripartite leases’ (i.e. freeholder, management company and leaseholder) then, if nothing more is said, the management company simply exercises its functions under the terms of the leases. Sometimes, however - usually only once the last lease has been granted - the freeholder then grants a further lease of all the common parts to the management company. Sometimes what is included in the lease is expressed to be, literally, all the property comprised in the freehold title number(s) which has not already been included in the leases of the flats or apartments. If you are indeed the management company, then you ought to be aware if there is such a lease. If you are in any doubt then, if you check the Charges Register section of the Land Registry Title for the freehold, you will see if a lease to the management company is recorded there as well as the individual flat leases. If there is a lease, then technically the management company and not the freeholder has possession of all the common parts. In theory this then means that the management company can do what it pleases with the common parts. In practice one would need to look at the terms of its lease of the common parts to see what it can do. Almost certainly there would be some restriction there on the management company making alterations to or erecting anything in the common parts without the consent of the freeholder. So, by either route, the result is likely to be the same. Assuming that the freeholder consents to the landscaping of the island and the construction of the freehold, you ought to check with the Environment Agency to see whether they would raise any objection to your proposals. I presume that the stream in question is not navigable, as clearly a footbridge would obstruct any navigation rights. I suspect that they do not formally record such rights, but they probably would be aware of any. They may also wish to comment if the bridge would affect fishing or riverbank wildlife. As far as planning permission is concerned, as a general principle any construction works will require planning permission from the local authority unless you can point to some provision of the General Development Order which says that certain works do not require planning permission. The Town and Country Planning (General Permitted Development) (England) Order 2015, SI No 20`5/596 is available on the Government legislation website (http://www.legislation.gov.uk/) under Statutory Instruments. This covers most of what one might think of as minor building works – porches and conservatories, etc., and walls and fences - but if something is not included there, it is likely to require planning permission, even if it does not seem very different in kind from something which is included. I can see no reference there to bridges. The obvious thing to do is to make informal enquiries of the local council as to whether they would require planning permission. If you are told that they do not, you should ask them to confirm it in writing. Bear in mind, if you go through the General Development Order, that when it refers to developments forming part of a dwellinghouse, it will not generally be possible for a block of flats to take advantage of a given exemption. As regards the Health and Safety aspects, if the bridge requires planning permission, then the Council will probably be aware of any formal safety requirements. Whether or not planning permission is required, I would have thought that you would protect yourselves by engaging structural engineers who hold themselves out as competent to design and/or construct a small bridge. They ought then to be aware of any more stringent formal requirements. [Submitted October 2016]

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