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Latest London basement dispute set for court

Posted on: 2nd November 2016

Camden resident granted permission to appeal to the High Court against Council’s decision to grant neighbour’s basement extension

A Camden resident, who is challenging Camden Council’s decision to grant his next door neighbour planning permission through permitted development rules, to build a basement extension, has been granted permission to appeal the Council’s decision at the High Court.

The resident, 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.

A petition against the development has already been signed and submitted to the Council by 32 neighbours, while a Camden Council consultation received 12 objections citing a number of challenges to the development, likening the scale and extent of the excavation works to an “engineering operation”, a loss of residents’ parking and the potential for structural damage to neighbouring houses.

Jayesh Kunwardia, housing partner at London law firm, Hodge Jones & Allen, is acting on behalf of the Camden resident seeking judicial review, 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 development unquestionably have significant noise, 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. All we’re asking for is for Camden Council to apply some common sense.

“Along with many of his neighbours, my client has been fighting this proposed development for almost three years’ and dreads the prospect of having his home life turned upside down. It is interesting to note that the original Planning Application for a similar basement was withdrawn by the neighbour when it was established that the proposal failed the Council’s own strict engineering design checks. We are now eagerly awaiting a court date so that a judge can determine whether or not to dismiss Camden’s decision to grant planning permission for the development”.

In a submission to the Council’s Planning Inspectorate, the Quadrant Grove Residents Association concluded: “The street is very small, lined by small Victorian cottages. Excavation of a basement will be exceptionally difficult for large lorries to manoeuvre down our road. A structural engineer has calculated that to remove the earth from beneath the development will take more than 60 skip movements on vehicles of a similar size to the one in the photograph (attached).”

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. Just recently, 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”.

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 will 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.

According to court documents, this conclusion was informed by “adverse decisions taken previously” by the Planning Inspectorate in respect of two other sites in the borough where the Council had “failed to defend a refusal” to grant a certificate for basement development on other sites. Following these decisions, and having taken its own legal advice, the Council concluded “that basement development such as is proposed in this case is capable of benefiting from permitted development” under the Class A permitted development right. This overturned a previous decision made by the Council to refuse the application based on the scale of the engineering involved.

The permission to apply for judicial review is 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.

Hodge Jones & Allen have engaged Marin Westgate QC of Doughty Street Chambers and Gwion Lewis of Landmark Chambers to act in the court proceedings. The hearing will take place at the High Court on 22 and 23 November 2016.

Ends

Notes for Editors

Hodge Jones and Allen

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