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Judge quashes permission in basement and permitted development case

A judge has quashed the London Borough of Camden’s grant of planning permission for a basement extension, deciding that the planning committee misdirected itself over the volume of associated engineering works.

The dispute concerned the grant of a lawful development certificate under section 192 of the Town and Country Planning Act 1990 to local resident James Ireland to excavate a single story basement under his terraced house. This was challenged by a neighbour Michael Eatherley.

Cranston J said the claimant’s case concerned claims that the proposed development included a substantial engineering operation which was not within the permitted development right relied upon, that the council misdirected itself before concluding that the engineering works proposed were not a separate activity of substance, and that to interpret a Class A permitted development right as including the engineering works proposed frustrated the legislative purpose of section 59 of the 1990 Act or the General Permitted Development Order.

In Eatherley v London Borough of Camden & Anor [2016] EWHC 3108 the judge said the case turned on the meaning of the plain words of the planning permission to enlarge, improve or alter a dwellinghouse.

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“Yet there must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse,” he said.

“For that reason, engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house.”

He dismissed the first and third grounds but found Camden had misdirected itself.

“In my judgment the planning committee asked itself the wrong question with its focus on the works being ‘entirely part’ of the overall development, which would ‘by necessity’ involve engineering works,” Cranston J said.

“It concluded that because this was the case it followed that the works did not constitute a separate activity of substance. That is not the approach laid down in the authorities. The council's conclusion that the engineering works were not a separate activity of substance followed from a misdirection. It should not have asked itself whether the engineering works were part and parcel of making a basement but whether they constituted a separate activity of substance.”

A Camden spokesperson said: “Central government regulations on basement permitted development rights are not drafted clearly and are open to different interpretations.

“The council's original decision in this case reflected our understanding (based on detailed QC’s advice) of the correct legal interpretation of these regulations and we therefore had little option but to allow these issues to be tested in court.

“However, we welcome the fact that this decision provides an insight into how the government’s rules apply to basement development.”

Mark Smulian

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