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High Court rules on basement development and permitted development rights

12 Dec 2016

Many local planning authorities, in particular London boroughs, are having to grapple with more and more subterranean development as space becomes a premium.  On Friday 2 December, the High Court handed down the latest judgment on the subject.  

In the case of R (Eatherley) v Camden Council 2016 EWHC 3108 (Admin), the owner of a terrace house in north London had been granted a lawful development certificate to confirm that a new basement accommodation would be lawful under the Class A permitted development right.  A neighbour challenged the grant of the certificate and sought to argue that the development was too substantial to be permitted development.

The High Court agreed with the neighbour and quashed the certificate.  The Court found that the Council should have considered whether the engineering operations required as part of the development (including excavation, structural support) are a ‘separate activity of substance’.  This is a question of fact and degree for decision-makers and may mean subterranean development will be sought by planning permission rather than permitted development. 

On a practical point, applicants for basement developments may now be advised to engage the local planning authority in early discussions and provide with more evidence and information as to the extent of the engineering operations proposed. 



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