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Camden Council’s decision to allow a basement extension quashed by the High Court

Posted on: 2nd December 2016

A Camden resident has successfully challenged Camden Council’s decision to grant his next door neighbour planning permission through permitted development rules, to build a basement extension, following an appeal to the High Court.

Mr Michael Eatherley, who lives in Quadrant Grove, Camden, appointed law firm Hodge Jones & Allen to challenge the Council’s decision to grant a Lawful Development Certificate for Permitted Development for the basement extension of a neighbouring property, on the grounds that the proposed development requires substantial engineering not within the permitted development rights.

The proposed building site in Quadrant Grove is a two-storey, 19th century mid-terrace family house with a mansard roof extension adding a third storey. A basement extension would turn, what was originally a two-storey cottage in a tiny street, into a four-storey house. In a relatively short report, Mr Raymond Yeung, a planning officer at the Council, concluded that the proposed development was a permitted development within the meaning of Class A.

In a judgment handed down today at the Royal Courts of Justice, Mr Justice Cranston quashed the Council’s certificate of lawful development granted to Mr Eatherley’s neighbour (Mr Ireland). He said:

“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. 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. The Council 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.

In other words, 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.”

Jayesh Kunwardia, housing partner at London law firm, Hodge Jones & Allen, acting on behalf of Mr Eatherley, he says: “My client did not want to take this legal action but feels he has been backed into a corner by Camden Council’s decision-making. Not only would the proposed development unquestionably have significant noise, construction traffic and dust impact on the local area, you only have to look at the small size of the street to see the potential damage building traffic might do to residents’ parked cars”

The permission to apply for judicial review was sought on three specific grounds:

(1) The proposed development includes a substantial engineering operation that is not within the permitted development right relied upon in the certificate.
(2) (a) The Council misdirected itself before concluding that the engineering works proposed were not a “separate activity of substance”. (b) Alternatively, if this was a question of planning judgement, the Council’s judgement was infected by public law errors and/or in any event irrational.
(3) The interpretation of the “Class A” permitted development right as including the engineering works proposed in this case frustrated the legislative purpose of s. 59 of the TCPA 1990 and/or the Town and Country Planning (General Permitted Development) (England) Order 2015 and was therefore ultra vires.

As well as concluding that the Council had misdirected itself (point 2), Mr Justice Cranston said that the matter of whether the proposed development (point 1) includes a substantial engineering operation was a matter for the Council.

With regard to whether the permitted development rights in this case frustrated current legislation, the judge was not persuaded on this point.

This is the latest high-profile ‘basement wars’ case in London as the number of planning applications for basement extensions in the capital has doubled over the past two years, according to construction business, Glenigan. Earlier this year, Queen guitarist Brian May, accepted £25,000 in damages as a result of a neighbours’ basement extension amid claims he is being forced out of Kensington because basement extensions are turning the area into a “hellhole”.

Hodge Jones & Allen engaged Martin Westgate QC of Doughty Street Chambers and Gwion Lewis of Landmark Chambers to act in the court proceedings.

Ends

Notes for Editors

Hodge Jones and Allen

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice.
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