Down to basics!
A High Court judge has recently considered a question about the extent to which subterranean development can be carried out relying on the current regime of permitted development rights. John Pugh-Smith analyses the case.
For many years there has been a debate as to whether the excavation of a basement falls within the scope of Part 1 Class A of the General Permitted Development Order (GPDO). This Class permits "(T)he enlargement, improvement or other alteration of a dwellinghouse" ; though none of the limitations or conditions within this Class refer to the excavation of a basement (or similar works). Nevertheless, a number of local planning authorities (LPAs) and planning inspectors have so held, and that the required engineering operations are also included. However, in R (Eatherley) v London Borough of Camden & Ireland [2016] EWHC 3108 (Admin), Mr Justice Cranston has now given a different insight.
The Interested Party, James Ireland, owned a two-storey mid-terrace house in Quadrant Grove, Chalk Farm, London NW5. His LDC application form, received by Camden Council on 18 December 2015, described the proposed development as "Formation of new basement accommodation". The submitted drawings showed the proposed excavation of a basement directly underneath the main part of the original house (i.e. with no lightwells or other external alterations). He had previously applied in November 2013 with a basement proposal including a front lightwell, but that application had been withdrawn. An application for a LDC had also been made in March 2014 but that had been rejected by Camden in October 2014 and a subsequent appeal then withdrawn.
The 2015 application was submitted under ‘permitted development rights’ as set out within Camden’s policy CPG4 Basement and Lightwells “which allows such applications that are not within Conservation Areas or subject to Article 4 Directions.” Adjoining occupiers had objected and Mr Eatherley obtained an engineer's opinion stating that a basement dug beneath an existing building within a terrace was one of the riskiest situations in which to construct a basement because of the shared foundations, that any movement of the house would directly impact its neighbours, and that the proposal amounted to more than a simple building operation because expert engineering input was required to ensure that the balance of forces in both directions was understood and controlled. Due to its local controversy this LDC application was referred to the Planning Committee on 25 February 2016.
The officer’s report stated: "The proposed depth of the basement is approximately 2.85m, with the width (side to side of the house) a maximum of 4.5m and length (front to back of house) a maximum of 7.5m". It advised:
"The proposals [are] for a new basement under the footprint of the house with a depth of 2.8m from ground floor to top of basement slab. The basement footprint would be c33sqm. No lightwells are proposed. The basement works will, by necessity, involve temporary engineering works associated with protecting the structural stability of the host and neighbouring buildings. However it is considered that these works would be entirely part of the basement works to number 24, and they do not constitute “a separate activity of substance that is not ancillary to the activity that benefits from permitted development rights".
It concluded that the proposals could be considered to be permitted development under Class A, Part 1, Schedule 2 of the 2015 GPDO. The Committee resolved to issue the LDC subject to a tendered section 106 agreement requiring the submission of a Construction Management Plan. Following the issue of the LDC on 5 May 2016 a neighbour, Michael Etherley, commenced judicial review proceedings. Prior to the High Court hearing on 22 November 2016 the Council, on 3 October 2016, had confirmed an Article 4(1) direction covering the whole of the borough; so with effect from 1 June 2017 planning permission would be required for basements.
In his judgment, handed down on 2 December 2016, Mr Justice Cranston granted judicial review and quashed the LDC on the basis that the Committee had misdirected itself. He rejected a number of contentions. First, that interpreting a permission under the GPDO should not be how a reasonable reader would understand it. The case of Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, and the authorities culminating in it, were all cases that concerned permissions granted by planning authorities, not permissions laid down by statutory instrument. Instead, the ordinary rules of statutory interpretation applied. Second, he declined to consider the purpose behind the GPDO as the Order was so wide that it was impossible to determine its overall purpose. It covered a disparate collection of topics, some minor and others less minor. In attempting to establish any underlying purpose, each individual permission and its attendant conditions had to be examined separately. The judge further considered that documents prepared by the Department of Communities and Local Government did not assist with interpretation. They merely showed that issues concerning the excavation of basements and permitted development rights had been on the political agenda for a considerable time and that no clear Parliamentary intention had ever been formulated.
Rather, the crucial issue was the meaning of the plain words of the permission, granted by Article 3(1) of the GPDO to enlarge, improve or alter a dwellinghouse. Camden asserted that the word "development", as defined by section 55 of the Town and Country Planning Act 1990, covered underground development; and that planning permission granted for "development" included permissions under the GPDO. It maintained that the straightforward English words of Class A embraced domestic basements because a basement undoubtedly enlarged, improved, or altered a dwelling house. The judge remarked that that logic had an attractive simplicity; but the difficulty in accepting it arose from the absence of any boundaries to the permission. There had to be a point where the excavation, underpinning and support for a basement became different in character from the enlargement, improvement and alteration of the dwelling. In the context of a "two up two down" terrace house in suburban London, the development of a new basement when there was currently nothing underneath the house could, as a matter of fact and degree, amount to two substantial developments because the engineering aspect of excavating a space while supporting the house and the neighbours' properties might be a separate planning aspect. It was for the Planning Committee, not for the court on an application for judicial review, to decide whether there were two activities or one. In the instant case, the Planning Committee had asked itself the wrong question. It had focused on whether the engineering works were part and parcel of making a basement when it should have asked whether they constituted a separate activity of substance. Had the Committee asked the right question it would have needed to assess the additional planning impact of the engineering works at the time of granting the LDC. Here, it was only afterwards, with the Construction Management Plan secured by the section 106 agreement, that the Council had given attention to some of the impacts of the development. At that point it was too late. The issue was one of planning judgment, but since the Planning Committee had misdirected itself as to the issue it never got as far as properly exercising that judgment.
While both the outcome of this case and the imposition of an Article 4(1) direction mean that the whole Borough and not just the residents of Quadrant Grovemay be able to sleep more soundly in their beds from 1 June 2017, the issue remains of considerable importance as to how the GPDO can be sensibly interpreted in this type of situation. Clearly, when determining an application for an LDC for the excavation of a basement, LPAs and Inspectors will now need to assess whether the engineering works constitute "a separate activity of substance". The obvious difficulty with such an assessment is trying to establish when the tipping point arises. Indeed, on its facts, Mr Ireland’s proposal actually involved no more than excavation of 100 cubic metres; and although the judge did not answer this question, he did state that such development "could well amount, as a question of fact and degree, to two activities, each of substance"; and he did refer to the claimant's submissions in relation to this question as "persuasive". Accordingly, it would not be unreasonable for an LPA to conclude that such development (i.e. the excavation of a basement of say 100 cubic metres) is not permitted development. Furthermore, if such a conclusion is correct, for a scheme which involved the excavation of a fairly typical basement (i.e. a single storey directly underneath the main part of the original house), then in the future the majority of such schemes are unlikely to be permitted development. Whether or not that is in the wider public interest is not for me to comment upon.
John Pugh-Smith is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
