Town and country planning – Lawful development certificate – Permitted development – Claimant applying for judicial review of defendants’ decision to grant lawful development certificate for basement development – Whether including engineering works in Class A rights frustrating legislative purpose – Whether defendants misdirecting themselves regarding “separate activity of substance” – Application granted
The defendant local authority granted a lawful development certificate to the interested party under section 192 of the Town and Country Planning Act 1990 for the excavation of a single story basement under the footprint of a terrace house in north London. The proposal was submitted under permitted development rights as set out within the defendants’ policy CPG4 Basement and Lightwells “which allow such applications that are not within conservation areas or subject to article 4 directions”. The officer’s report for the meeting of the planning committee recorded that the existing floor space of the house was 128 square metres; the proposed floor space with the basement would be 161 square metres. The site was not listed nor was it located within a conservation area.
The claimant neighbour applied for judicial review of the decision to grant the certificate which raised a question about the extent to which subterranean development could be carried out relying on the current regime of permitted development rights. The claimant contended, among other things, that the interpretation of the permitted development right, as including the engineering works proposed in this case, frustrated the legislative purpose of section 59 of the 1990 Act or Class A of Part 1, Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) and was therefore ultra vires. In particular, the words “enlargement, improvement or other alternation of a dwelling house” in Class A of Part 1, Schedule 2 did not encompass the basement development because it involved a separate engineering development requiring separate planning permission.
The defendants and the interested party submitted that the basement proposal fell squarely within the description of permitted development as it constituted the enlargement, improvement and other alteration of a dwelling house.
Held: The application was granted.
(1) An interpretation of the Class A rights as including the proposed engineering works would not frustrate the legislative purpose of section 59 of the 1990 Act. That provision allowed for the making of general development orders. In any event, article 4 of the GPDO enabled local planning authorities to make a direction removing the grant of permission otherwise given by article 3. As with the defendants’ recently made direction on basements, if thought necessary, article 4 could be used to require an individual application for planning permission.
(2) Article 3(1) of the GPDO provided that planning permission was granted for the classes of development described as permitted development in Schedule 2; Part 1 of Schedule 2 addressed development within the curtilage of a dwellinghouse; and Class A recorded as permitted development the enlargement, improvement or other alteration of a dwelling house. There had to be a point where the excavation, underpinning and support for a basement for a dwelling house became an activity different in character from the enlargement, improvement and alteration of that dwelling house. For that reason, engineering operations for the basement were at some point different in character to those involved in the preparation of foundations for a house. Although imprecise, the answer about boundaries drawn from the legal authorities was whether, as a matter of fact and degree, the single process of making the basement amounted to different activities, each of substance, so that the one was not merely ancillary to the other: West Bowers Farm Products v Essex County Council [1985] 1 EGLR 271 and Wycombe District Council v Secretary of State for the Environment [1994] EGCS 61 applied.
In the context of an original “two up two down” terrace house in suburban London, the development of a new basement, when there was nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There was the enlargement, improvement and alteration aspect, but there was potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That was the position, even though the latter was necessary to achieve the developer’s aim and was indivisible from it. If there was that separate aspect in the development, it required planning permission. The Class A right granted planning permission for one of the two activities of the development but not for the engineering aspect.
(3) In the present case, the planning committee had 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. It concluded that it followed that the works did not constitute a separate activity of substance. That was not the approach laid down in the authorities. The defendants’ 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. The defendants needed to address 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.
If the planning committee had asked itself the right question, it would have needed to assess the additional planning impacts of the engineering works to decide whether they amounted to a separate activity of substance. It would have been in a difficult position in undertaking that task without any description of the engineering works required in support of the application, although it might have been able to draw on its own experience of the common and predictable ramifications of this type of basement development with this type of terrace house in the area. It was only afterwards, with the construction management plan secured by the section 106 agreement, that the defendants gave 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 misdirected itself as to the issue, it never got as far as properly exercising that judgment.
Martin Westgate QC, Gwion Lewis and Matthew Fraser (instructed by Hodge Jones & Allen Solicitors) appeared for the claimant; Timothy Straker QC and Sappho Dias (instructed by Pritej Mistry) appeared for the defendants; Meyric Lewis (instructed by Ashtons Legal, of Cambridge) appeared for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of Eatherley v Camden London Borough Council
