Eatherley v London Borough of Camden & Anor

Permitted development rights under the Town and Country Planning (General Permitted Development) (England) Order 2015 must be interpreted as statutory permissions. A basement may involve two distinct activities: enlargement, improvement or alteration of a dwellinghouse, and substantial engineering works such as excavation and structural support. Whether the engineering works constitute a separate activity of substance, rather than merely ancillary works, is a question of fact and degree for the planning authority. A planning authority misdirects itself if it asks only whether the engineering works are necessary or part and parcel of constructing the basement. It must assess their nature and additional planning impacts.

The claimant, a neighbouring occupier, challenged Camden’s grant to the interested party of a certificate of lawful proposed development under section 192 of the Town and Country Planning Act 1990. The certificate concerned excavation of a single-storey basement beneath a terraced dwellinghouse. The proposal relied on Class A, Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.

The challenge alleged that the development included engineering operations outside the permitted development right, that the Council had applied the wrong legal test, and that the interpretation relied on frustrated the statutory purpose. The central issue was whether the Council had lawfully determined whether the engineering works were a separate activity of substance.

1. Judicial review granted. The certificate of lawful development was quashed.
2. Permissions in the GPDO are statutory permissions. Their meaning is determined by ordinary statutory interpretation, having regard to the words used, their context and any discernible statutory purpose. The approach used for interpreting planning conditions imposed by a planning authority did not govern interpretation of a permission in a statutory instrument.
3. The relevant Class A permission covered the enlargement, improvement or other alteration of a dwellinghouse. It did not necessarily cover every engineering operation required to create a basement. The proper question was whether, as a matter of fact and degree, the single process involved different activities, each of substance, so that the engineering activity was not merely ancillary to the permitted activity. The approach in West Bowers Farm Products v Essex County Council (1985) 50 P & CR 368, applied in Wycombe District Council v Secretary of State for the Environment [1995] JPL 223, supplied the applicable test.
4. For a basement beneath an existing terraced house, excavation and the provision of structural support for the house and neighbouring properties could potentially constitute a separate engineering activity of substance. The planning authority had to consider the nature of the excavation, removal of soil and structural support, together with the additional planning impacts of those works.
5. The Council had instead treated the engineering works as permissible because they were necessary, entirely part of the basement works, and not ancillary. That was a misdirection. The issue involved planning judgment, but the committee never lawfully exercised that judgment because it asked itself the wrong question. The section 106 construction management plan did not cure the error, since the relevant assessment had to be made when the certificate was determined.
6. The challenge based on frustration of the statutory purpose failed. Section 59 permitted general development orders, and Article 4 provided a mechanism for removing permitted development rights where individual planning control was considered necessary.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.