Engineering aspect not Permitted Development

[Temp]

This court case (Regina (Eatherley) v Camden LBC - 2nd December 2016) may have implications for extensions that require "engineering work" such as excavations...

 

According to the Law Report in todays Times (19/1/2017) new basements under existing houses aren't always Permitted Development. The case concerns someone who built a basement then applied for a certificate of lawful development which was granted. Then a neighbour took the council to court. Court ruled that council was wrong to issue the cert because the engineering aspect of the work wasn't covered by Permitted Development.

 

The court decided that there were several aspects to constructing a basement: The enlargement of the dwelling aspect, the alteration of the dwelling aspect, and an engineering aspect. The latter included excavating a space and supporting the house and it's neighbours. The court ruled that Class A of the GPDO allowed the first two aspects under Permitted Development but not the engineering aspect.The council "should not have asked itself if the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance" for which planning permission was required.

 

It sounds like the court considered the excavation to be a separate activity, one that is necessary to make space for the basement, but not part of the process of constructing the basement itself. I think that could have implications for people who need to dig into a hill or just level some ground in order to make a space for an extension?

 

 

[ToughButterCup]

3 hours ago, Temp said:

Court ruled that council was wrong to issue the cert because the engineering aspect of the work wasn't covered by Permitted Development.

[...]

The council "should not have asked itself if the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance" for which planning permission was required.

 

It sounds like the court considered the excavation to be a separate activity, one that is necessary to make space for the basement, but not part of the process of constructing the basement itself. I think that could have implications for people who need to dig into a hill or just level some ground in order to make a space for an extension?

 

So popping a few piles (the engineering aspect of the work) under our piggery (demolished for an exact rebuild) could be a '...separate activity of substance...' and '...not part of the process of constructing the piggery...'

 

Lucky we got it through on a Non Material Amendment, then.

[Ferdinand]

To me it seems to be a fairly limited application relating to basements under London terraces which has been a controversial area for a long time. eg Developers may be required to apply for PP for this type of operation.

 

Judgement:

 

Quote

Mr Justice Cranston: Introduction

 

1. This is a challenge to the decision of the London Borough of Camden (“the Council”) to grant a lawful development certificate under section 192 of the Town and Country Planning Act 1990 (“the 1990 Act”) to the interested party, Mr James Ireland. It was for a development described in it as the excavation of a single story basement under the footprint of what is a terrace house in north London. The challenge is brought by a neighbour, Mr Michael Eatherley.

 

2. The challenge is by means of a claim for judicial review and raises a question about the extent to which subterranean development can be carried out relying on the current regime of permitted development rights. The question is of general interest but arises particularly frequently in central London because of economic and social factors, in general terms, the increasing pressure for space. It is a matter of controversy in the planning world and there is a split between local planning authorities as to the correct answer: Lisle-Mainwaring v. Royal Borough of Kensington and Chelsea [2015] EWHC 2105 (Admin), [43]-[45], per Lang J.

http://www.landmarkchambers.co.uk/userfiles/documents/Eatherley Judgment.pdf

 

and Summary from Landmark Chambers:

 

Quote

Important High Court judgment on basement development

DATE: 02 Dec 2016

Basement development is not authorised under Class A permitted development rights in circumstances where the engineering operations that are required before building the basement, such as excavation and structural support, amount to a “separate activity of substance”, according to a significant judgment by Cranston J in R (Eatherley) v Camden Council [2016] EWHC 3108 (Admin), handed down on Friday 2 December 2016.

 

To the relief of those concerned about the unassessed planning impacts of subterranean development, the judgment is likely to cause many basement proposals to require an application for planning permission, and local planning authorities will have to ensure that their approach to such proposals is consistent with the decision.

 

The claimant, Mr Eatherley, successfully challenged the decision by Camden Council to grant a certificate of lawful development for a single-storey basement extension relying on the permitted development right to carry out “the enlargement, improvement or other alteration of a dwellinghouse” (Schedule 2, Part 1, Class A of the of the Town and Country Planning (General Permitted Development) (England) Order 2015) (“GPDO”).

 

Cranston J held that Camden Council had misdirected itself by stating that, so long as the engineering operations were “necessary” for the basement development to occur, they automatically fell within the scope of Class A. The judge found that approach to be inconsistent with the relevant case law, according to which an activity could, as a matter of fact and degree, be a “separate activity of substance” even if necessary for and integral to the development authorised under the GPDO.

http://www.landmarkchambers.co.uk/news.aspx?id=4483

 

Ferdinand

[Temp]

Martin Goodall has referenced the case..

http://planninglawblog.blogspot.co.uk/2016/12/basement-excavation-may-not-be.html

 

The court referenced an earlier decision involving a farmers reservoir. That also decided the excavations were a separate activity (perhaps because he sold the sand and gravel dug out to make the reservoir). On the other hand a case involving an excavation to form a hardstanding for a driveway was not considered a separate activity.