Construction of lease – licence for works – subsoil – demised or not?

This case also raised the issue as to whether the lease of a ground floor garden flat also included the subsoil beneath. The case raises an important point given the appetite for basement or sub-basement works and the installation of swimming pools, leisure space or car parks in the smarter parts of London. The context of the case was that the tenant made an application for licence to carry out works in the subsoil and the landlord had failed to grant consent. The tenant sought a declaration that the landlord had failed unreasonably to grant consent.

The background

The claimant tenants (T) had a 999 year lease of ground floor garden flat at 65 Cromwell Road, London N6 (the Building). Evidently the building may originally have been constructed as a substantial house subsequently converted into three self-contained flats.