Contour lines

Prior approval for a rear extension to a house in Kent has been granted by an inspector despite the council’s claim that the extent of earthmoving required would require planning permission (DCS Number 400-021-280).

This is one of those areas of planning where a search for a specified threshold in policy or legislation is unlikely to prove fruitful, so you might wish to make a record of these helpful lines from the inspector. In order to implement the enlargement of the property the appellant identified that some 16.5 cubic metres of earth would need to be removed, the inspector noted. The council asserted that the proposal would require a “significant amount of excavation, engineering work to level the ground for the proposed extension” and therefore the removal of the earth would fall within the definition of development as specified in section 55(1) of the Town and Country Planning Act 1990 (the 1990 Act). Consequently, the council took the view that the works were not permitted under the GPDO and therefore the scheme would require planning permission.

The inspector recognised that the activity would involve the removal of earth, but observed that the rear garden was not raised by a significant amount, and part of the extension would be set within the existing patio. She was satisfied that the level of earth to be removed would not be of a scale that it could be characterised as a separate activity falling within the remit of an engineering operation on its own merits. Therefore, she reasoned, if the works involved in removing the earth from the garden would not be of a character that could be described as an independent engineering operation, they would as a matter of fact and degree be ancillary to the construction of the extension. In reaching this conclusion she had regard to Wycombe DC v SSE [1995] and Eatherley v Camden LBC [2016]. Whilst the facts of the case before her were different, the approach of the court confirmed that the decision-maker should have regard to the works being carried out, and whether or not they would be of a scale that would in itself require planning permission. To her mind, the works involved in the removal of earth within the rear garden would simply be akin to those involved in the preparation of foundations for the extension. Accordingly, she found that the application was for development that would be permitted under Schedule 2, Part 1, Paragraph A.4 of the GPDO.

Another appeal example (DCS Number 100-077-461) where this issue has been debated can be found at section 4.3131 of DCP Online.