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Basement Excavations: High Court Case Sets New Planning Precedent

Karen Bright's picture
Published: 07/04/17 - Country: United Kingdom

The recent high court case of Eatherley-v-London Borough of Camden and Another at the end of 2016 has made changes about whether planning permission is required for residential basement developments.  Prior to this case it was usual, in certain circumstances, for a developer to rely on Permitted Development Rights* (“PDR”) rather than having to make an application for planning permission.  To rely on PDR the development works have to fall within the classes of development described in the General Permitted Development Order (“GPDO”) and the development must be within the curtilage of a dwelling house.

There has recently been a lot of bad press about significant basement excavations in London and this may be a reason why there is now more litigation on this issue. The judge in the above case decided that in the context of an original “two up two down” terraced house in suburban London, the new development of a basement (where previously there was none) could amount to two activities, each of substance:

  • The enlargement, improvement and alteration of a dwelling house
  • An engineering aspect of excavating a space and supporting the house and its neighbours

In the present case the court found that the engineering operation was necessary to achieve the developer’s aim, and was indivisible from it, there was a “separate activity of substance” and therefore express planning permission would be required from the local planning authority.

In light of the above it appears that it is a matter of fact and dependent on the degree of the works and, whilst PDR has the effect of granting planning permission for the enlargement, improvement and alteration of a dwelling house, it does not provide permission for any engineering aspect.

If you are considering carrying out excavation works to create a basement, you should ensure that your architect, surveyor and builders are fully up to date with this recent high court decision. 

* (under Class A, Part 1, Schedule 2 to the GPDO 2015)

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Karen Bright's picture

Karen’s general litigation caseload sees her instructed regularly in matters that cover the range of the court hierarchy, from County Courts, the High Court and the Court of Appeal. In terms of subject-matter, these disputes have involved terms and conditions, the standard of works and services provided, disputes between directors and shareholders, contentious probate, ownership of goods, nuisance, professional negligence and contractual disputes.

Karen has had conduct of two matters that went before the Court of Appeal. One related to tree root nuisance, and the other to the setting aside of a freezing order.

She has particular expertise in conducting Landlord and Tenant litigation in the Leasehold Valuation Tribunal and County Courts. This includes acting for both landlords and tenants in issues such as the forfeiture of leases, injunctions, nuisance, recovery of service charges and rent, and possession work.

In the insolvency arena, Karen’s expertise applies to both personal and corporate insolvency, often acting for the Liquidator or Trustee in Bankruptcy. Her work in this field includes asset tracing, applications to set aside transactions at undervalue, advice on preferential payments, the compulsory winding up of companies and the issuing and defending of bankruptcy petitions.

Karen trained at Machins Solicitors before working at Wedlake Saint (now part of Penningtons LLP) before joining Bishop and Sewell LLP.

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