JG (A Child) v Legal Services Commission and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date28 February 2012
Neutral Citation[2012] EWHC 804 (Admin)
Date28 February 2012
Docket NumberCO/8872/2011

[2012] EWHC 804 (Admin)




Royal Courts of Justice


London WC2A 2LL


Mr Justice Sales


The Queen on the Application of Marina Murray, Christopher Rees, John Simpson & Nikolas Tarling (for and on Behalf of the Markham Square Association)
The Royal Borough of Kensington & Chelsea
(1) Nicholas Vetch
(2) Catherine Vetch
Interested Parties

Mr T Hill QC & Ms S Hannett (instructed by Bircham Dyson Bell) appeared on behalf of the Claimant

Mr R Moules (instructed by the Royal Borough of Kensington & Chelsea) appeared on behalf of the Defendant

Mr R Turney (instructed by Lester Aldridge) appeared on behalf of the Interested Parties


(As Approved)




This is an application for permission to bring judicial review proceedings in relation to planning permission and conservation area consent in relation to substantial development works to a property at 36 Markham Square, London SW3, a residential property located in a residential London square. The planning permission for the development of the property was granted on 29th June 2011. The proposed works involve essentially demolishing a substantial part of the rear of the building (while preserving its front aspect) and excavating a substantial subterranean basement, in particular under the garden to the rear of the property, to create more living space.


2. The claimants are the local residents' association, people who live in the square and will be significantly affected by these development works. I say at once that I have considerable sympathy with the residents' association, having regard to a degree of disruption which they will undoubtedly suffer through having a neighbour carry out such a development. However, I have come to the conclusion that the application for permission should be refused.


3. The application for permission was considered on the papers by His Honour Judge Seys-Llewellyn QC, sitting as a deputy judge of the High Court. In a careful written decision of 2nd December 2011 he gave reasons dismissing the application, which at that stage was put on five distinct grounds. Essentially, I agree with the reasons that he gave and with his conclusion that in the circumstances the claimants do not have a good arguable case which merits the grant of permission.


4. The application for permission has been renewed orally before me by reference to three out of the five original grounds. The first ground, and that which I consider to be the most substantial, relates to complaints about the defendant council local planning authority's decision making in respect of requiring a construction method statement designed to ensure that the construction will properly safeguard the stability of the building itself and those other buildings in the neighbourhood. The second ground relied on before me relates to what are said to be defects in the Construction Traffic Management Plan arrangements, designed to cope with construction traffic having access to the site for various purposes. The third ground relied on before me is an argument by reference to section 6 of the Human Rights Act 1998 and to Article 8 of the European Convention on Human Rights (“ECHR”) (respect for family and private life).


5. I deal with these grounds shortly in turn by way of expanding upon the points made by His Honour Judge Seys-Llewellyn QC.


Ground 1


6. The claimants rely on two relevant local policy statements, first a policy set out in Kensington and Chelsea's Core Strategy in its Development Plan document at policy CL2. This provides in material part as follows:

New Buildings, Extensions and Modifications to Existing Buildings

The Council will require new buildings, extensions and modifications to existing buildings to be of the highest architectural and urban design quality, taking opportunities to improve the quality and character of buildings and the area and the way it functions.

To deliver this the Council will, in relation to …

Extensions and modifications …

g. require it is demonstrated that subterranean extensions meet the following criteria …

ii. the stability of the existing or neighbouring buildings is safeguarded …”


7. In an additional supplementary planning document on subterranean development (“the SPD”) it is noted that the SPD is a significant material planning consideration in determining applications for planning permission and that it forms part of the Local Development Framework. Section 6 of the SPD is headed “Construction Method Statements”. It contains the following statement:

“Subterranean development in a dense urban environment, especially basements built under existing vulnerable structures, is a significantly challenging engineering endeavour. In particular there is a potential risk of damage to the existing and neighbouring structures and infrastructure if the subterranean development is ill-planned poorly-constructed and does not properly consider the geology and hydrology. However, successful subterranean development has been achieved in London, and in the borough, for many years.”


8. The SPD goes on to say at paragraph 6.1.2:

“To address this issue, the Council will require a Construction Method Statement (CMS)to be submitted with all planning applications and Listed Building Consent applications for subterranean development. The CMS must provide specific details of the excavation, temporary works and construction techniques, including details of the potential impact of the subterranean development on the existing and neighbouring structures, based on the specific site characteristics, including the type of geology and hydrology found in the area.This must be prepared and signed off by a Chartered Civil Engineer (MICE) or Structural Engineer (MI Struct.E) and submitted with the planning application, before the application will be validated.”


9. At paragraph 6.1.4 of the SPD it is said:

“The Council will cease its current practice of appointing external consultants to assess the CMS and will rely on the professional integrity of the Chartered Civil Engineer (MICE) or Chartered Structural Engineer (MI Struct.E), appointed by the applicant, to ensure that the construction of a subterranean development is safe and will not impact on the structural integrity of the existing or neighbouring properties. However, the Council may choose to consult, at the applicant's expense, an independent Chartered Structural Engineer with expertise in historic structures for specific cases where particularly vulnerable historic buildings or structures may be affected.”


10. At paragraph 6.1.7 the SPD states:

“Anyone with concerns that the construction process is not being conducted in a safe and secure fashion, protecting the structural integrity of the existing buildings, should approach the Council's Building Control service.”


11. Appendix C to the SPD sets out a sample range of possible conditions and “informatives” in relation to work for which permission is given. These can include matters such as conditions to control works where archaeological work may need to be carried out, to control construction traffic by having a condition as to approval of a Construction Traffic Management Plan and setting out references to methods for controlling noisy works, such as approved hours for works to be carried out.


12. Policy CL2 in the Core Strategy and the SPD were referred to in express terms in the report for Council members prepared by the Council officers (“the officers' report”). They made reference to the construction method statement (“CMS”) from a Mr Humphreys, a structural engineer engaged by the applicants for the permission, dated 4th May 2011. According to the officers' report:

“This document is in accordance with the requirements of the Subterranean Development Supplementary Planning Document as regards the issues to be addressed within construction method policy statements.”


13. The officers' report went on to review the CMS and to conclude: “The proposal is therefore considered to comply with policy CL2 in the Subterranean Development Supplementary Planning Document”. The officers also noted in their report in relation to expressed concern that the subterranean development would damage the structural stability of neighbouring properties that:

“… the applicants have submitted a Construction Method Statement from a qualified structural engineer which indicates that there is not likely to be any impact on the stability of neighbouring properties. The proposed basement would be in the rear garden and dug by hand.”


14. The claimants were not satisfied with the CMS submitted by the applicants and obtained a letter from structural engineers, Messrs Roughton, which raised certain concerns about possible loss of structural stability to adjoining properties due to difficult ground conditions. It appears that that letter was addressed to an earlier version of the applicant's structural engineer's CMS, since it referred to objections to “mini pile installation”, which in the CMS of 4th May 2011 had been changed in section 5 to a more traditional underpinning method to be carried out manually to limit the amount of disturbance that the construction works would have on neighbouring properties. Generally, the letter from Messrs Roughton did not suggest that it would be impossible to overcome structural stability concerns if proper measures were put in place. That letter was available to the Council's Planning Applications Committee, together with the various documents from the...

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