By Mustafa Sidki, a partner and construction litigator at Thackray Williams
Mustafa Sidki
As urban property values continue to climb and planning reforms open new avenues for development, flat roofs have emerged as prime real estate.
Yet, with opportunity comes conflict. Lawyers must navigate a complex legal landscape to protect their clients’ interests – be they developers and investors, or leaseholders and neighbouring property owners.
So what strategic steps can you take to avoid disputes, and what’s your best course of action on behalf of your clients if litigation looms – whichever side of the construction fence they are on?
Development incentives and legal flashpoints
The incentives for freeholders to develop the flat roofs of buildings they own have intensified significantly. Three key factors are driving this trend:
Record property prices and limited urban space: The UK property market has reached historic highs, particularly in urban centres where space is scarce. Flat roofs – often retained by landlords – represent untapped development potential. Adding storeys to existing buildings can dramatically increase asset value, especially when modular construction methods often make such projects more cost-effective and logistically feasible.
The Leasehold and Freehold Reform Act 2024: Although not yet fully implemented, this legislation is set to make it cheaper and easier for leaseholders to extend their leases or purchase their freeholds. It also removes barriers for leaseholders to challenge service charges and other costs at tribunal.
Anticipating a shift in power towards leaseholders, many freeholders have sought to ‘front-run’ the impact of the Act by maximising the value of their portfolios while they still retain control. Developing upwards – particularly on flat roofs – offers a way to enhance property value before leaseholders gain greater leverage.
Lawyers advising developers should be aware that this urgency may lead to rushed planning and increased risk exposure, while those representing leaseholders should be alert to potential overreach by landlords seeking to act before the new protections take effect
Planning law reforms introduced in December 2024: The government’s housing strategy now includes relaxed rules for building additional storeys on existing buildings. Local councils have been assigned mandatory housing targets, with a national goal of 370,000 new homes per year.
This policy shift has made rooftop development not only more feasible but also more attractive from a regulatory standpoint. Developers are increasingly looking to flat roofs as a way to meet housing demand without acquiring new land.
Together, these factors have created a perfect storm of opportunity and urgency. But they’ve also triggered a wave of legal disputes, particularly where leaseholders or neighbouring property owners feel their rights are being overlooked. Lawyers must be prepared to navigate this evolving landscape, balancing commercial ambition with legal compliance and stakeholder engagement.
Telecommunications equipment and code rights
Dispute type: Developer v mobile network operator
Client types: Developers, investors
Many flat roofs host telecoms infrastructure under code agreements conferred under schedule 3A of the Communications Act 2003. These agreements allow mobile network operators to install and maintain equipment such as masts and antennas.
While these arrangements can generate income for freeholders, they can also obstruct redevelopment plans.
Operators enjoy security of tenure under paragraph 30 of the Electronic Communications Code, even after the agreement expires. Termination requires a statutory notice specifying the grounds for termination and a minimum of 18 months’ notice.
The operator is entitled to serve a counter-notice within three months of the freeholder’s notice. If this counter-notice is accepted by the freeholder, then the code agreement continues.
However, if the freeholder does not agree to continue the code agreement, then the operator is entitled to apply to the tribunal within three months of its counter-notice for an order that the code agreement should continue and the freeholder must establish a statutory ground to terminate the agreement.
Proactive advice: Lawyers should advise developers to review code agreements early in the planning process. Termination notices must be carefully drafted to comply with statutory requirements. Failure to do so can result in delays, legal challenges and reputational damage.
Reactive strategy: If disputes arise, lawyers must prepare robust arguments to establish statutory grounds for termination. This may involve demonstrating that redevelopment cannot proceed with the equipment in place, and that the public interest favours termination.
Breach of covenant and quiet enjoyment
Dispute type: Freeholder v leaseholder
Client types: Developers, leaseholders (residential and commercial)
Construction inevitably causes disruption. Noise, dust and restricted access can breach the covenant of quiet enjoyment, which is implied in most leases (see Lawson v Hartley-Brown (1996) 71 P & CR 242). Leaseholders may seek injunctions or damages if they believe their rights have been infringed.
Courts assess whether the freeholder exercised development rights reasonably. Factors include:
- Whether leaseholders were informed in advance;
- Whether steps were taken to minimise disruption;
- Whether compensation was offered; and
- Whether scaffolding and access arrangements were designed to protect leaseholder interests.
Proactive advice: Lawyers should help developers prepare comprehensive construction management plans. These should include communication protocols, mitigation measures and compensation frameworks. Engaging with leaseholders early can prevent disputes and foster goodwill.
Reactive strategy: Leaseholders may seek legal remedies if they feel their rights have been ignored. Lawyers must assess the strength of the claim, gather evidence of disruption, and advise on appropriate remedies – whether through negotiation, mediation or litigation.
Nuisance and structural damage
Dispute type: Leaseholder v developer
Client types: Leaseholders, developers
Roof works can cause water ingress, structural damage or other forms of nuisance. These issues may arise during the removal of existing roof coverings or the installation of modular units.
Damages are normally assessed in three ways:
- The cost of cure, which is the normal measure of the cost of reinstatement (i.e. restoring them to their pre-damage position);
- The alternative measure, which is assessed by the diminution in value of a property; and
- Loss of amenity
It is also possible for lessees to recover damages for distress and suffering.
Proactive advice: Lawyers should advise developers to commission pre-works surveys and engage structural engineers. Insurance cover should be reviewed to ensure it includes damage to leaseholder property.
Reactive strategy: Leaseholders should be guided through evidence collection, including photographs, expert reports and witness statements. Lawyers must assess the extent of the damage and advise on appropriate claims, including nuisance, negligence and breach of lease.
Party Wall Act compliance
Dispute type: Freeholder v leaseholder
Client types: Developers, leaseholders, neighbours
Flat roof developments often involve party walls (shared structures between two properties), triggering obligations under the Party Wall Act 1996. Legal requirements include:
- Serving notice on affected parties;
- Obtaining consent or a valid award; and
- Exercising reasonable care during works.
Unfortunately, freeholders are all too often not aware that their flat roof shares a party wall with a subjacent flat and so fail to serve the requisite notice.
If a freeholder carries out work without complying with statutory obligations of the Act – i.e. without first giving notice, obtaining consent or obtaining a valid award under the Act – they lose the protection afforded under the Act.
This means that any damage or loss sustained as a consequence of the works become actionable in private nuisance (Louis v Sadiq (1997) 74 P&CR 325). Freeholders may also be liable for breach of statutory duty, meaning a lessee may be entitled to claim further damages.
Proactive advice: Lawyers should ensure clients instruct surveyors to identify party walls and serve proper notices.
Reactive strategy: If damage occurs or notice is not properly served, affected parties may seek injunctions or damages. Lawyers must assess procedural breaches and advise on remedies, including retrospective awards or negotiated settlements.
Encroachment and adverse possession
Dispute type: Leaseholder (residential or commercial) v freeholder
Client types: Leaseholders, developers
Where leaseholders have used flat roofs as gardens or terraces, they may claim rights through encroachment or adverse possession, whether residential leaseholders using the roof recreationally or a commercial leaseholder that has sited equipment there, such as air conditioning units or commercial extractors. This can prevent development and lead to complex legal disputes.
In McGees v Long Term Reversions (Harrogate) Ltd (2025), the tribunal held that exclusive use of roof space for over 10 years gave rise to a presumption of encroachment. The leaseholders were granted title to the roof space, blocking the freeholder’s development plans.
Proactive advice: Lawyers should advise freeholders to monitor roof use and challenge encroachments early. Regular inspections and clear lease terms can prevent adverse possession claims.
Reactive strategy: Leaseholders seeking to protect roof space should gather evidence of exclusive use, such as photographs, witness statements and historical records. Lawyers must assess whether the criteria for encroachment are met and prepare applications to the Land Registry if appropriate.
Neighbouring property disputes
Dispute type: Developer v neighbouring owner
Client types: Developers, neighbours
Neighbours may oppose rooftop developments due to loss of light, privacy or amenity. These objections can lead to planning appeals, judicial reviews or private nuisance claims.
Common objections include overshadowing of gardens or windows, loss of privacy due to overlooking and increased noise or traffic during construction.
Significantly, if the objection amounts to an infringement of an established easement, such as a right to light that has been enjoyed for 20 years or more, the beneficiary is still permitted to apply for an injunction against the person interfering with their absolute and indefeasible right, even when planning permission has been granted.
In such cases, the courts have the discretion to award an injunction or damages – or both.
Proactive advice: Lawyers should help developers engage in early consultation with neighbours. Planning applications should include impact assessments and design adjustments to mitigate concerns.
Reactive strategy: Neighbours may seek legal remedies if they believe their rights have been infringed. Lawyers must assess planning compliance, gather expert evidence and advise on appropriate actions – whether through objection letters, appeals or litigation.
Representing clients on both sides of the fence
Most real estate lawyers represent a diverse range of clients. It is common to be instructed on the one hand by developers and investors seeking to maximise property value, and on the other by leaseholders protecting their homes and rights as well as neighbours opposing developments that affect their quality of life.
Each client group has distinct priorities and legal tools at their disposal. It is our duty to tailor our advice accordingly, balancing commercial ambition with legal protection.
For developers and investors:
- Conduct thorough due diligence on lease terms, planning regulations, and statutory obligations;
- Engage with stakeholders early to build consensus and avoid disputes; and
- Prepare robust documentation, including termination notices, construction plans and insurance policies
For leaseholders and neighbours:
- Review lease terms and statutory protections;
- Document any disruption, damage or loss of amenity; and
- Explore legal remedies, including injunctions, damages and planning objections
Conclusion: Strategic legal guidance is essential
Flat roof developments offer lucrative opportunities but are fraught with legal risk. Lawyers play a pivotal role in guiding clients through this complex terrain. Whether advising on pre-development strategy or litigating post-construction disputes, legal professionals must combine technical expertise with strategic insight.
By anticipating potential conflicts, engaging with stakeholders and navigating the legal framework with precision, lawyers can help clients achieve their goals – while protecting their rights and avoiding costly litigation.
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