‘Underground, overground, wombling free…’


Author: Aditi Sawjani


“It ain’t quite heaven but it’s the closest I’ve been” (as sung in “Underground” from the West End musical Memphis) would be an accurate description of some of the luxury underground basement extensions seen around London’s wealthiest streets.

With prime London land a scarce commodity, and restrictions on building heights, the super-wealthy are now building downwards to create swimming pools, cinema rooms, saunas and wine cellars, some as much as five floors deep. But homeowners wanting to bypass formal planning permission to build basement extensions have been dealt a blow in the High Court.

Mr Eatherley, a resident of Kentish Town in north London, brought a judicial review against his neighbour in a small street of Victorian cottages. He challenged the decision by Camden Council to allow his neighbour to extend using “permitted development rights” rather than going through the formal planning process.

Permitted development rights allow one-storey basements but, unlike formal planning agreements, are not subject to controls on the hours building work can take place. This can prove unpopular with neighbours.

Camden Council had stated that, so long as the engineering operations were “necessary” for the basement development to occur, they automatically fell within the scope of Class A.

Did they dig that? In short, no. The High Court held that Camden Council had “misdirected itself” over whether the engineering works were part of the overall development or whether they were a separate activity. They found that the Council’s approach was inconsistent with case law and concluded that a basement development is not authorised under Class A permitted development rights in certain circumstances. This is because the engineering operations required before building the basement (excavation and structural support) amount to a “separate activity of substance”.

The result of this case means that applications for basement extensions going forward will be subject to approval, thus making it more difficult for those wishing to dig down to do so.

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‘Underground, overground, wombling free…’ The Wombling Song – the Wombles

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Aditi Sawjani, Associate, Fladgate LLP (asawjani@fladgate.com)

 

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