Iceberg development sunk on judicial review

Posted: 06/01/2017

Basement developments are either an exciting and inventive way to utilise space in heavily developed areas or a scourge which cause great disruption to neighbourhoods. The case of Eatherley v London Borough of Camden and another [2016] EWHC 3108 (Admin) will be some cause for concern to those who think the former and a small victory for those who think the latter.

Legal framework

By way of general background, planning permission is required for the development of land. Development is defined in the Town and Country Planning Act 1990 as ‘the carrying out of building, engineering, mining or other operations in, on, over or under land’.

For the purposes of this case, the meaning of building and engineering operations was relevant. A building operation is specifically defined under the Act and includes demolition of buildings, rebuilding, structural alterations of or additions to buildings and other operations normally undertaken by a person carrying on business as a builder. Engineering operations are not specifically defined but are likely to encompass activities that would generally require the skills or supervision of an engineer.

Having established that all development requires planning permission, it is possible that certain development can be granted automatic planning permission by an Order made by the Secretary of State. The Order most frequently encountered, and of relevance in this case, is the TCP (GPD)(England) Order 2015 (GPDO). These are permitted development rights.

Under Schedule 2 Part 1, Class A of the GPDO, subject to certain limitations, planning permission is granted for ‘the enlargement, improvement or other alteration of a dwellinghouse’.

The case 

James Ireland wished to carry out some development work, namely the excavation of a single storey basement under the footprint of what is a terraced house in north London. Mr Ireland applied to Camden LBC for a certificate of lawfulness in relation to his proposed work (ie that it fell within Class A to the GPDO and therefore did not require planning permission to be granted by the council).

In the officer’s report to Camden’s planning committee, the officer had considered whether the engineering activities associated with the development would also fall within Class A. His report had concluded that:

‘The basement works will, by necessity, involve temporary engineering works associated with protecting the structural stability of the house and neighbouring building. However, it is considered that these works would be entirely part of the basement works to [the house], and they do not constitute a 'separate activity of substance that is not ancillary to the activity that benefits from permitted development rights'.’

The committee resolved to grant the certificate of lawfulness subject to a section 106 agreement requiring a construction management plan. Once the section 106 agreement was in place, the certificate was granted on 5 May 2016.

The claimant, a neighbour, instructed a firm of chartered engineers to review Mr Ireland’s proposals. The engineers had concluded that the construction of the basement could not be considered as a purely building operation. Works needed to be put in place, both temporarily and permanently to control the vertical and lateral forces on the shared foundations. The engineers’ review indicated that the building operations would effectively be works fitting out the basement ‘box’ once its permanent structural supports were in place.

Armed with this, the claimant sought judicial review of the council’s decision on three grounds: 

• that the proposed development included a substantial engineering operation which was not within the permitted development right;
• that the council had misdirected itself before concluding that the engineering works proposed were not a separate activity of substance; alternatively, if this was a question of planning judgment, the council’s judgment was infected by public law errors and/or in any event irrational;
• an interpretation of Class A right as including the engineering works proposed in this case would frustrate the legislative purpose of section 59 of the 1990 Act and/or the GPDO.

The claimant was granted the judicial review under ground 2 and the certificate of lawfulness was quashed. 

The court felt that the committee had been asked the wrong question with its focus on the works being ‘entirely part’ of the overall development with engineering works involved only ‘by necessity’. The court held that the committee 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. If they had done so, they would have had to assess the engineering elements of the proposal such as excavation and removal of soil and the structural support elements. The original application had had none of these details which were only available with the construction management plan secured by the section 106 agreement. Of course, by the time the construction management plan was produced, it was too late.

As to the other grounds, the court did not agree with the contention in ground 1 as this is a question of fact and degree to be determined by the council. Neither did the court agree with ground 3 on the basis that the GPDO contains provisions which enable local authorities to remove the permitted development rights granted.

Conclusions 

When considering this type of development going forward, applicants will need to consider the level of engineering work required as clearly the judgment will mean that at some tipping point, such basement excavations will not fall under the GPDO. 

On a wider note, several London boroughs have exercised their ability to remove permitted development rights associated with basement excavations already. Ironically, this includes Camden with effect from 1 June 2017. In addition, the DCLG’s call for evidence (‘Basement Developments and the Planning System’) closed on 16 December 2016 so we can expect further changes to the planning framework around this type of development fairly soon.

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