Basement excavation boom: put the spade down – for now!

The recent basement excavation boom in London is set to be impacted by a High Court case to be heard in November 2016, which will decide whether all basement excavations (in particular, one-storey extensions (sometimes allowed under Permitted Development Rights)) will need formal planning permission.

Permitted Development Rights do not encompass ‘iceberg’ basement extensions which descend multiple floors beneath residential properties to accommodate, for example, gyms, swimming pools and even night clubs. Such mammoth basement excavations require approval via the formal planning process and Local Councils can control the conduct of the works – for example, by restricting the hours during which construction takes place.

Conversely, if works are carried out using Permitted Development Rights, this means that planning permission is required; however the application process is dispensed with and permission is deemed to have been granted. The deemed planning permission may be subject to certain exceptions, limitations and conditions, as set out in Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (GPDO 2015).

Under the GPDO 2015 there is no provision relating specifically to basement developments. However, basement developments are generally considered to benefit from permitted development rights (under Part 1, class A, Schedule 2 of the GPDO 2015), as they are considered to be works for the “enlargement, improvement or other alteration of a dwelling house.” This Permitted Development Right is subject to a number of exclusions, set out in paragraph A 1 (a)-(i) – for example, where the enlarged part of the dwelling house would have more than a single storey.

Interestingly, under the Permitted Development regime, local authorities have less control over how works are conducted. Therefore, some London Councils have taken action to prevent home owners using Permitted Development Rights for basement extensions. This year, Kensington and Chelsea and the City of Westminster Councils made ‘Article 4 Directions’, so that all basement extensions in those areas have to be approved using the formal planning permission application route and are therefore subject to the local authority’s rules.

In a High Court case, scheduled to be heard in November 2016, the High Court will decide the extent to which home owners can build basement excavations without formal planning permission (i.e. under Permitted Development Rights).

The claimant in the case has issued a legal challenge against Camden Council, regarding his neighbour’s construction of a basement extension in Kentish Town, London. The case could set a precedent for the treatment of basement excavations in London.

In the legal claim, the Claimant argues that Permitted Development Rights were intended to cover additional developments, such as the construction of a conservatory, as opposed to basement developments and claims that Camden Council should not have granted a lawful development certificate allowing the proposed construction because it included substantial engineering works.

Camden Council, the Defendant, is resisting the action on the basis that the law on Permitted Development Rights authorises building and engineering operations, above and below ground and further, that this case concerned a one-storey basement extension, entirely within the boundaries of the existing house (and therefore fell within the remit of Permitted Development Rights). Camden Council has insisted it acted within the prescriptive Permitted Development rules and that it acted lawfully.

Advice from Edwin Coe

Basement extensions (particularly in Central London) are proving to be controversial. Home owners, do not dig yourself into a hole – get in touch with Edwin Coe!

We will provide an update following the outcome of the forthcoming High Court Case; however in the meantime, factors to consider if you are pondering whether or not to carry out a basement excavation include the following:

1. Legal advice: It would be prudent to obtain advice from a property or construction lawyer, prior to committing to the construction of a basement excavation (or prior to a purchase where you intend to do works following completion), to ensure the necessary planning permissions are in place and to assist you in negotiating the necessary construction agreements with your professional team.
2. Planning permission: If the basement extension does not meet the criteria set out in either the GPDO 2015 (Permitted Development Rights), or Permitted Development Rights have been removed (for example by an Article 4 Direction by the Local Council), a planning application will be required.
3. Check your Local Council’s policy: Recently London Boroughs have made Article 4 Directions or have imposed stringent conditions on basement extensions – therefore making the planning and construction process convoluted. Councils may impose planning conditions to include the requirement for specialist survey reports, site checks (which add to costs) before deciding whether to grant permission.
4. Neighbour resistance: Neighbours may find a way to resist basement works via the Party Wall procedure or by objecting to the Local Council.
5. Freeholder’s Consent: You may need to pay for the consent of freeholders who own your estate, which may be costly in premium London locations.
6. Listed Building Consent: This may be relevant.
7. Construction costs: Builders’ costs can vary depending on location.

For further information regarding this topic or any other property and construction matter, please contact Joanne McIvor – Partner, Hayley Cloherty – Associate, or any member of the Edwin Coe Property or Construction teams.

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