Levelling up

We understand from an article in The Spectator that the secretary of state for housing has been seeking inspiration from Renaissance Italy to deliver the levelling-up agenda. We are a little concerned that Mr Gove might have misunderstood the nature of the task before him so we offer the following to set him on the right lines. 

The determination of a recent appeal against the refusal of a certificate of lawfulness for an outbuilding on uneven ground at a house in north London (DCS Number 400-033-474) turned on the issue of levelling up. The council argued that because of the sloping nature of the ground on which it was proposed to construct the outbuilding, the development would require significant engineering works in order to create a level platform from which to construct it, and that such works were not permitted by Class E of Part 1 to Schedule 2 of the GPDO. 

The inspector recorded that in the case of Eatherley v London Borough of Camden & Ireland [2016], which involved a basement enlargement of a dwellinghouse, the court held that the excavations and underpinning involved amounted to an activity of substance separate from the construction of the basement which would follow. This judgment upheld the decision in West Bowers Farm Products v Essex County Council [1985], where the court held that the excavation of sand and gravel to create a reservoir to serve a farm constituted a separate operation for which there was no deemed planning permission under the permitted development regime. 

In Eatherley, the inspector related, the court held that the appropriate question to be asked was whether the engineering operations required were a separate activity of substance, and that the assessment was a matter of planning judgement. The inspector held that the construction of a raised base, slab or plinth on sloping ground is a normal part of the construction of a building, and the fact that there would be walls surrounding that base of up to about 0.8m or so in height did not result in it being a separate activity of substance. He was reinforced in his views by the finding of the judge in Eatherley who commented that “engineering operations for the basement are at some point different in character to those involved in the preparation of foundations for a house”. The inspector found, in the case before him, that the construction of the base, plinth or slab was part of the preparations of foundations for the building proposed, and he considered that it could be readily distinguished from basement excavations in both its character and substance. 

The inspector concluded, as a matter of planning judgement, that the development would comprise a single operation which would benefit from the deemed planning permission granted under Class E of Part 1 to Schedule 2 of the Order, and that the council’s decision was not well-founded.

You’re welcome, minister. 

There are further appeal examples relating to this topic at section 4.3134 of DCP Online.