R (Eatherley) v Camden London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Hon. Mr Justice Cranston,Mr Justice Cranston
Judgment Date02 December 2016
Neutral Citation[2016] EWHC 3108 (Admin)
Date02 December 2016
Docket NumberCase No: CO/3055/2016

[2016] EWHC 3108 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr Justice Cranston

Case No: CO/3055/2016

Between:
Eatherley
Claimant
and
London Borough of Camden
Defendant

and

James Ireland
Interested Party

Mr Martin Westgate QC, Mr Gwion Lewis and Mr Matthew Fraser (instructed by Hodge Jones & Allen Solicitors) for the Claimant

Mr Timothy Straker QC and Ms Sappho Dias (instructed by Mr Pritej Mistry) for the Defendant

Mr Meyric Lewis (instructed by Ashtons Legal) for the Interested Party

Hearing date: 22 November 2016

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Hon. Mr Justice Cranston Mr Justice Cranston

Introduction

1

This is a challenge to the decision of the London Borough of Camden ("the Council") to grant a lawful development certificate under section 192 of the Town and Country Planning Act 1990 ("the 1990 Act") to the interested party, Mr James Ireland. It was for a development described in it as the excavation of a single story basement under the footprint of what is a terrace house in north London. The challenge is brought by a neighbour, Mr Michael Eatherley.

2

The challenge is by means of a claim for judicial review and raises a question about the extent to which subterranean development can be carried out relying on the current regime of permitted development rights. The question is of general interest but arises particularly frequently in central London because of economic and social factors, in general terms, the increasing pressure for space. It is a matter of controversy in the planning world and there is a split between local planning authorities as to the correct answer: Lisle-Mainwaring v. Royal Borough of Kensington and Chelsea [2015] EWHC 2105 (Admin), [43]–[45], per Lang J.

Background

3

On 18 December 2015, Mr Ireland applied for a lawful development certificate for the formation of new basement accommodation. He had applied in November 2013 with a basement proposal including a front lightwell, but that application was withdrawn. An application for a lawful development certificate was made in March 2014, but that was rejected by the Council's development control (planning) committee in October 2014. An appeal against that decision was later withdrawn.

4

The December 2015 application was accompanied by a series of drawings and a design and access statement dated March 2014. The proposal was submitted under permitted development rights as set out within the Council's policy CPG4 Basement and Lightwells "which allows such applications that are not within Conservation Areas or subject to Article 4 Directions." The Council's director of culture and environment referred Mr Ireland's application to the planning committee.

5

The officer's report for the meeting of the planning committee recorded that the existing floor space of Mr Ireland's house was 128 square metres; the proposed floor space with the basement would be 161 square metres. The report described the site as comprising a two storey, mid-terrace, single family dwellinghouse with rooms in the roof located on the north side of the street. The site was not listed nor was it located within a conservation area. The proposal was outlined as follows:

"The proposed works comprise the excavation of a basement beneath the footprint of the existing dwellinghouse. The proposed depth of the basement is approximately 2.85m, with the width (side to side of the house) a maximum of 4.5m and length (front to back of house) a maximum of 7.5m. A single internal staircase is proposed to link the existing ground floor with the proposed basement. To clarify, the proposed basement does not include any lightwells or associated works which would allow natural light to this space."

6

The officer's report moved on to review the inspectors' decisions in two other basement cases in the borough, when appeals by applicants against the Council's refusals were allowed. It also mentioned three approvals of basements by the Council – one basement, one basement extension and one wine cellar below a basement. The officer's report stated that there were 15 objections from adjoining occupiers, including a petition with 32 signatories. Among the objections were that:

• the construction work will be very disruptive to residents

• as the street is so narrow the impact of the dirt and noise from the excavations is going to be exaggerated

• road access will be limited due to the builders' vehicles, diggers, skips, etc.

• the excavating of the ground, design of the retaining walls and propping arrangements are an "engineering operation"

• there will be a loss of parking for residents

• there will be structural damage to adjacent houses

• the works will create instability to the houses and street given the fragility of these mid-nineteenth century workers' cottages

• the creation of the basement will set a precedent and ruin an attractive street.

The ward councillor, Cllr Kelly, supported the residents.

7

The officer's report noted that what was involved was a legal determination. No account could be taken of policy or guidance within the Camden development plans or the planning merits of the scheme in terms of issues such as its impact on hydrogeology, structural stability, neighbour amenity, and transport.

8

Under the heading "Assessment", the report first noted that the Council had had a number of appeals allowed for the construction of a basement under permitted development rights. Costs had been awarded against it. The report then turned to consider in tabular form the limitations, conditions and exceptions of Class A, Part 1, Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015 No 596 ("the GPDO"). It was satisfied that the proposal met them.

9

Under the sub-heading "Engineering", the officer's report considered whether the engineering activities associated with basement construction were within the Class A right. Earlier it had noted that the local residents' association had claimed that the proposals involved excavation works which, as a matter of fact and degree, constituted "an engineering operation" which did not benefit from any permitted development right under section 55 of the 1990 Act. After further discussion of the two recent appeal decisions by planning inspectors, and legal advice which had been given on the issue, the report reached an overall conclusion on the engineering aspects as follows:

"6.24 The proposals [are] for a new basement under the footprint of the house with a depth of 2.8m from ground floor to top of basement slab. The basement footprint would be c33sqm. No lightwells are proposed. 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 quotation in the passage was from the inspector's decision in one of the two appeals.

10

The officer's report concluded that the proposal could be considered permitted development as it fell under Class A in the GPDO and that the committee should grant a certificate of lawfulness, subject to a section 106 legal agreement.

11

The section 106 agreement arose because Mr Ireland had offered to enter into it as a measure of goodwill to secure a construction management plan. The report had welcomed this and, on that basis, included it in the recommendation.

12

In the section 106 agreement the construction management plan is defined in terms of the construction phase of the development. It is to include details of the environmental protection, highway safety and community liaison measures proposed to mitigate potential impacts of the works; how the health effects and amenity of local residences and others are to be ameliorated and monitored; and traffic measures, including procedures for notifying residents in advance of major operations. Under the section 106 agreement, Mr Ireland agrees that, amongst other things, the Council will not approve the construction management plan unless it demonstrates to the Council's reasonable satisfaction that the construction phase of the development can be carried out safely and with minimal possible impact and disturbance to the surrounding environment and highway network.

13

Once the section 106 agreement between the Council and Mr Ireland was in place, the Council granted the certificate of lawfulness dated 5 May 2016.

14

Meanwhile, the claimant, Mr Eatherley, had obtained a Commentary on Mr Ireland's proposal ("the Commentary") from a chartered civil engineer employed by the consultant engineers, Arup. In an overview of the nature of the engineering involved, the Commentary stated:

"A basement dug beneath an existing building within a terrace is one of the riskiest situations in which to construct a basement. Because the property shares its existing foundations with its neighbours and also because it provides lateral support to its neighbours, any movement of the existing house resulting from the works will directly impact on its neighbours."

The Commentary continued that construction of the proposed basement could not be considered simply as a building operation. Both the...

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    ...be attributed to siting, design and external appearance.” 31 The next decision is R (on the application of Eatherley) v Camden LBC [2016] EWHC 3108 (Admin), a decision of Cranston J. He dealt with a submission that in interpreting a planning permission in the general permitted development o......

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