QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF RONALD KENT |
Claimant |
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THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA |
Defendant |
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JORGE MANON BERTHA MORALES |
Interested Parties |
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Isabella Tafur (instructed by Tri-Borough Legal Services) for the Defendant
The Interested Parties neither appearing nor being represented
Hearing date: 1 November 2016
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Crown Copyright ©
Mr Justice Hickinbottom :
Introduction
"No 26 has previously been the subject of substantial extension at existing basement level on two occasions…. These historic basement extensions comprise 'basement' development under the [Council's] basement policy definitions because they were built below the prevailing ground level of No 26 at the street front and garden rear."
The Relevant Policy
"The Policy applies to all basement proposals: extensions, and new developments, across all land uses. 'Basement' means one or more floor levels substantially below the prevailing level of the back gardens. Lower ground floors are not regarded as basements in this context. A basement will not be allowed where a property already has an existing basement."
"It is acknowledged that the definition of basement needs more clarity and text will be altered as appropriate."
"Comment
The distinction between lower ground floors and basements is not made clear. At what stage does a lower ground floor become a basement? Both usually involve the entire bottom floor being situated below ground level, so that the problems that arise when further excavation takes place are similar for both.
Accordingly, the policy should treat existing lower ground floors as basements, and prohibit excavation beneath floors which are below ground, whether or not they might be considered as basements or lower ground floors.
Council's response
It is acknowledged that the definition of basement needs more clarity and text will be altered as appropriate.
The suggestion would put a stop to most basement proposals in the Borough. The policy is not intended to stop basement development. The proposed policy would allow people to extend their homes and help minimise their impacts."
"The Council will require all basement development to:
(a) not exceed a maximum of 50 per cent of each garden or open part of the site…;
(b) not comprise more than one storey…;
(c) not add further basement floors where there is an extant or implemented planning permission for a basement or one built through the exercise of permitted development rights;…".
"This policy applies to all new basement development. For the purposes of this policy, basement development is the construction or extension of one or more storeys of accommodation below the prevailing ground level of a site or property."
"34.3.47 Basements are a useful way to add accommodation to homes and commercial buildings. While roof extensions and rear extensions add visibly to the amount of built development, basements can be built with much less long term visual impact – provided appropriate requirements are followed. This policy sets out these requirements.
34.3.48 Basement development in recent years has been the subject of concern from residents. Basements have given rise to issues about noise and disturbance during construction, the management of traffic, plant and equipment, and concerns about the structural stability of buildings. These concerns have been heightened by the growth in the number of planning applications for basements in the Royal Borough…. The vast majority of these are extensions under existing dwellings and gardens within established residential areas.
34.3.49 In the Royal Borough, the construction of new basements has an impact on the quality of life, traffic management and the living conditions of nearby residents and is a material planning consideration. This is because the borough is very densely developed and populated. It has the second highest population density and the highest household density per square km in England and Wales. Tight knit streets of terraced and semi-detached houses can have several basement developments under way at any one time. The excavation process can create noise and disturbance and the removal of spoil can involve a large number of vehicle movements.
34.3.50 A basement development next door has an immediacy which can have a serious impact on the quality of life, while the effect of multiple excavations in many streets can be the equivalent of having a permanent inappropriate use in a residential area. There are also concerns over the structural stability of adjacent property, character of rear gardens, sustainable drainage and the impact on carbon emissions. Planning deals with the use of land and it is expedient to deal with these issues proactively and address the long term harm to residents' living conditions rather than rely only on mitigation. For all these reasons the Council considers that careful control is required over the scale, form and extent of basements.
34.3.51 The policy therefore restricts the extent of basement excavation to no more than under half the garden or open part of the site and limits the depth of excavation to a single storey in most cases….
34.3.52 'Garden' or 'open part of the site' is the private open area to the front, rear or side of the property. A 'single storey' is one that cannot be subdivided in the future to create additional floors. It is generally about 3 to 4 metres floor to ceiling height but a small extra allowance for proposals with a swimming pool may be permitted.
34.3.53 Restricting the size of basements will help protect residential living conditions in the borough by limiting the extent and duration of construction and by reducing the volume of soil to be excavated. Large basement construction in residential neighbourhoods can affect the health and wellbeing of residents with issues such as noise, vibration and heavy vehicles experienced for a prolonged period. A limit on the size of basements will reduce this impact.
…
34.3.58 Where a basement has already been implemented following the grant of planning permission or through the exercise of permitted development rights, the policy does not allow further basement floors or basement extensions that would exceed 50 per cent of the garden or open part of the site. This is to ensure consistency of approach."
"It was said that the term 'basement' was not adequately defined in the Policy at 34.3.46. However, I think that it is a common sense and short definition; that it is clear to everyone what is meant; and that it is capable of consistent interpretation. The Council told me that it has not had a problem with that definition over the last 10 years (although its current SPD's title is 'subterranean' development). Any disputes will be rare and are unlikely to be resolved by a longer or more complicated definition (which itself could create problems of interpretation). Therefore, I conclude that the definition is sound."
"70. Given my findings above on CL7(a) and (b), it logically follows that additional basement floors which might follow on after an extant or implemented permission or after the implementation of permitted development rights should be prevented. Otherwise CL7(b) would not be effective or reasonable or fair. For the same reasons, this criterion should also be subject to the recommended monitoring and review modifications in order to be sound.
71. The Council said that this would not apply where a property already had an existing basement before the need for planning permission came into effect with the 1947 Planning Act. The Council said this would be 'fair', which I take also to mean 'reasonable' and 'proportionate', and that it would be consistent with national planning legislation in Development Orders when restrictions on development rights are introduced. I agree. Unfortunately, the policy at 34.3.58 does not say this and so is not sound. Modification MM6 rectifies this unsoundness. I have slightly altered the Council's wording to make clear that both originally constructed and later added basements must have taken place before 1 July 1948.
72. I conclude that with the above modification CL7(c) is justified, effective and consistent with national policy."
In other words, Policy CL7(c) was needed to prevent cumulative applications for basement development being used to overcome the restriction of such development to a single storey. Without Policy CL7(c), applicants could repeatedly apply for and secure permission for single storey basement developments, one below the other, which would be contrary to the policy intention and in substantive frustration of Policy CL7(b).
"Where a basement has already been implemented following the grant of planning permission or through the exercise of permitted development rights, the policy does not allow further basement floors or basement extensions that would exceed 50 per cent of the garden or open part of the site. This provision would not apply to a basement which forms part of the original property or to a later addition which were constructed prior to 1 July 1948. This is to ensure consistency of approach."
The Grounds of Challenge
Ground 1: The Council relied upon an erroneous construction of Policy CL7.
Ground 2: The Council failed properly to have regard to preserving or enhancing the character and appearance of the Norland and Ladbroke Conservation Areas. As discrete sub-grounds, it is said that the Council relied upon two material perverse findings of fact.
Ground 1: Policy CL7
i) Section 70(2) of the Town and Country Planning Act 1990 provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of "the development plan", as well as "any other material consideration". "The development plan" sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 to include adopted local plans.
ii) Section 38(6) of the 2004 Act provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, but that presumption is rebuttable by other material considerations.
iii) In order to have proper regard to a policy, the decision-maker must have interpreted it properly. The true interpretation of policy is a matter of law for the court to determine, policy statements being "interpreted objectively in accordance with the language used, read as always in its proper context" (Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 ("Tesco Stores") at [19] per Lord Reed).
i) Miss Thomas and Miss Tafur agreed – in my view, rightly – that, in determining and applying the true construction of Policy CL7, the terms used from time-to-time to describe a particular storey of a building are not likely to be helpful: and so the fact that the Interested Parties refer to the lowest floor in their house as "the lower ground floor", or that some of the earlier planning application documents refer to it as "basement", does not assist.ii) It is uncontroversial that the proposed development to the Property is "basement development" as defined in paragraph 34.3.46 of the supporting text to Policy CL7; because, on any view, it would involve the construction of a storey below prevailing ground level. Policy CL7 therefore applies.
iii) It is also common ground that the 1967 and 1990s works extended the lower ground floor, with planning permission or under permitted development rights.
iv) Furthermore, it is clear that the construction of a basement at the Property, in line with the proposal, will cause "material harm to the living conditions of neighbouring properties": so much is noted in paragraph 6.24 of the Officer's Report.
i) Had the draftsman of Policy CL7(c) intended to convey that which Miss Thomas contends, he could easily have used the term "basement development". He conspicuously did not.ii) The use of the word "further" before "basement floors" suggests that, when "basement" is used later in that provision, it too is referring to a basement floor or storey. The use of the indefinite article ("… a basement…"), and the reference to "… one built through the exercise of permitted development rights…" (which is a reference back to "a basement"), also suggest that the reference is to a basement floor, not basement development including an extension to a basement.
iii) Although in my view the wording of the policy is tolerably clear on its face, the meaning of Policy CL7(c) becomes abundantly clear when it is considered in context. As I have explained, Policy CL7(b) was the dominant policy, i.e. the prohibition of any new basement development that comprised more than one storey. The rationale for that policy was considered by the Council and the Examiner, and is set out in the policy itself (see paragraph 17 above): it is designed to limit the adverse effects caused by the excavation and construction of basements. Its purpose is not to prevent dwellings having more than one basement storey; but to restrict nuisance to neighbours by proscribing the excavation and construction of more than one such storey. As explained in paragraph 22 above, the overt primary purpose of Policy CL7(c) is to prevent successive applications for cumulative basement storeys, which would frustrate the dominant policy in Policy CL7(b). The Examiner made that clear, and confirmed that it was a sound policy. The focus of Policy CL7(c) on floors (i.e. storeys) therefore furthers the general policy aim.
iv) Miss Thomas points out that, in paragraph 29 of his Report, the Examiner expressly found that "the term 'basement' was [soundly] defined in the Policy at 34.3.46" (see paragraph 20 above). However, I do not see anything in that paragraph of his Report that is inconsistent with the construction which I favour. He does not suggest that he is proceeding on the basis that the definition of "basement" as used in Policy CL7(c) (as opposed to "basement development" as used in paragraph 34.3.46) includes extensions. Indeed, in paragraphs 70-72 of his Report, the Examiner appears to have construed Policy CL7(c) in the way that I favour (see paragraph 22 above). In any event, as I have indicated, the meaning of the policy is ultimately a matter for the court.
"The proposed basement would be constructed below the existing lower ground floor level, and would be the first subterranean addition to the property."
As the Planning Officer herself has accepted (in her email of 2 February 2016, referred to in paragraph 32 above), the use of the term "subterranean" is a hangover from the somewhat out-of-date SPD and was in this context not particularly helpful; but "lower ground floor level" as used here is clearly a reference to the particular storey of the house (and not, e.g., the level at which the floor of that storey lies). Whilst not as full or clear as it might be, this is an indication that the Planning Officer was, at the time of her Report, addressing the right question.
"13. In exercising my planning judgment I concluded that the previous extensions to the rear of the property, including the existing conservatory and closet wing, did not constitute the implementation of a planning permission for a basement, or the building of a basement through the exercise of permitted development rights. The existing conservatory is a rear extension to the lowest level of the property at the original floor level. I could not construe the reconstruction of the closet wing nor the construction of the conservatory (either separately or together) as the building of basement. I recorded in the report that the proposed basement development was the first subterranean development at the property, by which I meant that no additional floor had previously been added beneath the original lowest floor level of the property. Therefore, I concluded that the proposed basement development did not conflict with Policy CL7(c). In spite of the representations made by the Claimant, I remain of the view that the previous works to the property are properly characterised as rear extensions, and that they did not constitute to the building or implementation of a basement.
14. The question in this case is whether the previous works to the property resulted in the implementation or building of a basement. I do not consider those works to have constituted the implementation or building of a basement…".
"I remain satisfied that the original lowest floor level of the property has not been lowered in order to facilitate the erection of the rear closet wing."
Ground 2: Conservation Areas
Conclusion