It has not been clear whether residential basement extensions, involving significant excavation works, are or can be exempt from a requirement to obtain planning permission with regard to the permitted development right in Class A of the Town and Country Planning (General Permitted Development) England Order 2015.
In the absence of much needed guidance, local authorities have adopted divergent approaches.
This controversial topic was considered by the High Court in R (on the application of Eatherley) v Camden Council [2016] EWHC 3108 (Admin), which held that 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”.
The case involved a successful judicial review challenge brought by a neighbour against the grant by Camden Council of a lawful development certificate under section 192 of the Town and Country Planning Act 1990. The lawful development certificate was for the excavation of a 161 square metre single-storey basement under the footprint of a 128 square metre terrace house in north London.
In quashing and setting aside Camden Council’s grant of the lawful development certificate, the High Court held that Camden Council had misdirected itself in considering that, provided the engineering operations were “necessary” for the basement development to occur, they automatically fell within the scope of Class A permitted development rights. As a result, the High Court held that such an approach by Camden Council was inconsistent with the relevant case law. The High Court ruled that the engineering operations constituted a “separate activity of substance” and that Camden Council had failed to consider the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.
This is the first time that the High Court has directly dealt with whether a residential basement extension, involving significant excavation works, is or can be within the Class A right. The judgment clarifies a controversial topic in planning law and provides much-needed guidance to authorities who have hitherto adopted divergent approaches. 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.
Martha Grekos is a partner and head of planning at Howard Kennedy LLP
