Photographer Piers Calvert and his downstairs neighbour Lisa Erickson, a former banker turned choral singer, have mounted a legal challenge against another flat owner within their property in Holland Park, west London, over plans to excavate a basement featuring a gym and cinema room beneath the garden area.
The dispute has unfolded on the same road where David and Victoria Beckham bought their £31.5 million primary home in 2013, in an exclusive enclave home to A-list celebrities including Simon Cowell, Sir Elton John and Robbie Williams.
Freehold Company Takes on Offshore Entity
Through a freehold and residents' company of which they are directors, Mr Calvert and Mrs Erickson are now embroiled in a High Court fight with the ground floor owner – a mysterious offshore entity of which little has been made public.
A judge is being asked to rule whether the company owns only the cultivable surface of the garden, or all of the soil beneath it. The singer and the photographer's freehold company says that, despite having planning permission for the basement, the entity which owns the ground floor and garden has no right to dig deep into the earth to construct the room.
"The demise of the garden does not carry with it the subsoil to the centre of the earth or to any level beyond that reasonably required for use as a garden," said David Nicholls, the barrister for the residents' company. "The subsoil at 20ft or 100ft or 1,000ft below the surface cannot properly be said to be 'garden'."
The Property and the Planning Permission
Sitting at London's High Court, judge Master Francesca Kaye heard that the dispute revolves around a five-storey Grade-II listed Victorian house in Holland Park, where flats have recently sold for more than £3m.
Mr Calvert, 48, an award-winning documentary photographer who spends much of his working life in Colombia, owns the lease on the attic flat, while Mrs Erickson, 69, a former banker turned osteopath and now choral singer, owns the same on the maisonette below.
The lease on the final flat, which spreads across the ground and lower ground floors, as well as the garden, is owned by Jersey-listed company, Montana International Properties Ltd. Lawyers have refused to reveal who the mystery owners are.
The Legal Arguments
Approved plans for the single-storey 2.5m deep basement beneath the garden – to include a gym and family/cinema room, as well as shower room and storage space – were granted to the company in 2018. But despite the permission, a long-running dispute has arisen with the freeholder of the building, 51 Holland Park Residents Ltd, a company made up and owned by the owners of the flats, including Mr Calvert and Mrs Erickson.
In court, the freehold company's barrister told the judge that the dispute boils down to whether the basement work planned by Montana goes beyond the limits of the land which it owns. Daniel Dovar, representing Montana, which has owned the lease on the lower floors and garden since 2014, said the issue was about "whether the garden extends below the sub-soil and if so how far".
He said on a "plain and natural" reading of the company's lease, the garden is demised to it "without limitation". "The demise is of the whole garden, which naturally includes all the sub-soil," he told the judge. "There is nothing in the lease which provides any alternative construction."
Mr Dovar continued: "If that were not sufficient, then there is the legal presumption that a conveyance of property includes the airspace above and the subsoil below."
Speaking outside court, lawyers for both sides declined to confirm who owns the offshore entity which wants to build the basement, nor the identities of the tenants who are currently in occupation of the lower apartment. After three days in court, Master Kaye reserved her decision on the dispute until a later date.
