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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lisle-Mainwaring & Anor v Royal Borough of Kensington and Chelsea  EWHC 2105 (Admin) (23 July 2015)
Cite as:  EWHC 2105 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ZIPPORAH LISLE-MAINWARING
FORCE FOUNDATIONS (BASEMENT FORCE) LIMITED
|- and -
|THE MAYOR AND BURGESSES OF THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA
Timothy Straker QC and Dilpreet K Dhanoa (instructed by the Royal Borough of Kensington and Chelsea Legal Services Department) for the Defendant
Hearing dates: 7 & 8 July 2015
Crown Copyright ©
Mrs Justice Lang:
Summary of the Defendant's planning policies
i) extensions over a specified size to achieve Code for Sustainable Homes/BREEAM standards (at a); and
ii) an assessment to demonstrate that the entire dwelling where subterranean extensions are proposed meets EcoHomesVeryGood (at design and post construction) with 40% of the credits achieved under the Energy, Water or Materials sections or comparable when BREEAM for refurbishment is published (at c).
"The Council will require new buildings, extensions and modifications to existing buildings to be of the highest architectural and urban design quality, taking opportunities to improve the quality and character of buildings and the area and the way it functions. To deliver this the Council will, in relation to:"
The policy then set out a range of requirements.
i) The proposal does not involve excavation under a listed building;
ii) The stability of the existing or neighbouring buildings is safeguarded;
iii) There is no loss of trees of townscape or amenity value;
iv) Adequate soil depth and material is provided to ensure sustainable growth.
"This SPD provides further guidance and builds upon the criteria used to determine planning applications for subterranean development, as set out in Unitary Development Plan (UDP) Policy CD32, as saved by the Secretary of State, which "resists subterranean development where:
a. the amenity of adjoining properties would be adversely affected; or
b. there would be a material loss of open space; or
c. the structural stability of adjoining or adjacent listed buildings or unlisted building within conservation areas might be put at risk; or
d. a satisfactory scheme of landscaping including adequate soil depth has not been provided; or
e. there would be a loss of trees of townscape or amenity value; …"
i) Construction and structural stability must incorporate the advice of a chartered civil or structural engineer.
ii) Proposals for development under listed buildings or directly attached to existing basements, cellars or vaults of listed buildings will normally be resisted, though proposals for development under the gardens of listed buildings may be considered.
iii) Visible signs of development should be well designed and discreet. The Defendant will discourage light wells and railings that are visible from the street if not a characteristic feature of the street. Restrictions on size of light wells.
iv) All development used as sleeping accommodation must have natural light and ventilation.
v) Basement storeys should be a minimum of 2.4m high and accord with minimum room sizes specified.
vi) Restrictions on the grant of planning permission in flood risk areas.
vii) Sustainable urban drainage is required.
viii) No mature trees should be removed or damaged, especially those with Tree Preservation Orders, in Conservation areas, or within the curtilage of a listed building.
ix) To protect the green and leafy appearance of the Borough, the Defendant will require:a) 1m of permeable soil above the top cover of the basement;b) the basement should extend to no more than 85% coverage of the garden space (between the boundary walls and existing building) with the remainder of the space used for drainage, planting and tree pits.
x) Conditions will be attached to the grant of planning permission to minimise noise and nuisance for neighbours and pedestrians, traffic flow and parking.
The Claimants' grounds
i) the Defendant and the Inspector failed to take account of a material consideration, namely the permitted development rights for basement development, and the risk of greater reliance on them if the BPP were adopted, without the benefit of any planning control over construction noise and loss of amenity;
ii) the Defendant and the Inspector did not consider and/or assess the "reasonable alternative" of a "case by case" approach put forward by the Second Claimant, and so the Defendant failed to carry out an adequate environmental assessment, as required under reg. 5 of the Environmental Assessment of Plans and Programmes Regulations 2004 ("SEA Regulations 2004");
iii) in rejecting the Second Claimant's reasonable alternative, the Defendant belatedly relied upon a new objective of "bearing down on the volume of excavation" which was a "false objective", as the Defendant's previously stated objective was to ensure that basement development was of the highest quality; and
iv) the "false objective" was contrary to section 39 PCPA 2004.
i) the Claimants and others were deprived of the opportunity to be consulted on the "false objective" of "bearing down on the volume of excavation", and so the consultation process was flawed;
ii) the Inspector did not give adequate reasons in his report, as required by section 20 PCPA 2004, to indicate his conclusions on the points raised by the Claimants concerning the effect of the BPP on permitted development rights and the "reasonable alternative" of a 'case by case' approach.
The scope of a challenge under section 113 of the Planning and Compulsory Purchase Act 2004
"(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with."
"… a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document."
"(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement."
Adoption of development plan documents under the Planning and Compulsory Purchase Act 2004
"(a) carry out an appraisal of the sustainability of the proposals in each development plan document;
(b) prepare a report of the findings of the appraisal."
i) satisfies the requirements of sections 19, 24(1), any regulations under section 17(7) and section 36 PCPA 2004, relating to the preparation of development plan documents;
ii) is "sound"; and
iii) whether the local planning authority complied with any duty imposed on it by section 33A PCPA 2004
Ground 1: Permitted Development Rights
The General Permitted Development Order
"10. Basements built under permitted development rights are restricted and in a conservation area are confined to the building footprint. A basement could only be constructed under the entire footprint if it has a back garden that is at least 7m or more. The creation of lightwells is not considered to fall within Class A as it is not 'enlargement, improvement or alteration' of a dwellinghouse but an engineering operation requiring planning permission (I should add this I am not attempting here to restate the General Permitted Development Order, it is to that one must look for precision).
11. Consequently, what is possible under permitted development rights is a small windowless basement restricted to the footprint of the dwellinghouse. For properties with a small garden of less than 7m it may not be possible to construct a permitted development basement at all, or only under part of the footprint."
i) whether there are restrictions on the overall size of a basement development, and number of storeys, beyond the restrictions expressly imposed by the GPDO. For example, the Defendant contends that a large or multiple storey extension for non-dwellinghouse purposes, such as offices or a swimming pool and gym, is liable to go beyond "the enlargement, improvement or other alteration of a dwellinghouse";
ii) whether and to what extent lightwells fall outside permitted development.
"…should be limited to situations where this is necessary to protect local amenity or the wellbeing of the area. The potential harm that the direction is intended to address should be clearly identified. There should be a particularly strong justification for the withdrawal of permitted development rights relating to a wide area (e.g. those covering the entire area of a local planning authority ….)"
Were the permitted development rights taken into account?
"4.4 It is difficult to ascertain exactly how much basement development is being carried out in the Borough because some does not require planning permission and there is no requirement for an owner to apply for a certificate of lawful proposed development. However, in 2011, we received notification of a further 46 basement schemes which did not require planning permission and were not the subject of certificates of lawful development."
The Council is considering removing permitted development rights from those basements that can currently be built without the need to apply for planning permission, This will be done through an 'Article 4 Direction'.
This is not to stop these basements taking place. They would be very likely to meet the criteria of the proposed policy set out above. Instead the purpose is to allow matters of construction impact – set out under procedure above – to be controlled. It could be done across the Borough, or it could be more specifically targeted in, for example, areas where streets are narrow or construction is otherwise constrained."
"5.0 Permitted Development
5.1 The Town and Country Planning (General Permitted Development) Order 2008 (GPDO) sets out certain categories of development that do not require planning permission. Enlargements of a certain scale to a single dwelling are permitted development. As basements are enlargements, these are therefore permitted. In essence a 'single storey' basement directly underneath the dwelling, which projects no more than 3 metres into the rear garden, does not require planning permission, and as such is exempt from the controls that the planning system can offer.
5.2 Bringing smaller basement extensions within the remit of the planning system would enable the Council to control the implementation stage in terms of construction method and construction traffic, and receive information relating to the structural impacts on the adjoining properties, for the neighbours to then take forward in their party wall agreements. It would also allow other aspects of the project to be assessed such as the visual impact of roof lights, whether land which is contaminated is effectively considered and to require sustainable urban drainage and carbon reduction measures to be implemented.
5.3 A local authority may make a direction under Article 4 of the GPDO to remove permitted development rights, thus bringing a category of development back under planning control. Where an application made necessary by the Article 4 direction is refused, compensation is normally payable, but the publication of the Town and Country Planning (Compensation) (England) Regulations 2012 has removed that burden as regards extensions, alterations and improvements to dwelling houses, subject to certain requirements.
5.4 Given the considerable benefits associated with bringing all but the most minor basement extensions under the remit of the planning system, the Council is considering making the use of Article Directions either across the Borough, or more specifically targeted on, for example, areas where streets are narrow or where construction is otherwise constrained. However, this approach is not without its costs as no planning application fee is payable to the local planning authority for an application made necessary by an Article 4 Direction. This cost, if across the borough, has been estimated to be in the region of £65,000 pa, though this could rise significantly were the number of eligible applications to increase. This cost will be ongoing.
5.5 A formal procedure must be undertaken were the Council to decide to implement Article 4 Direction. The Council would have to consult those affected for at least six weeks before deciding whether to confirm the Article 4 Direction or not. In order to avoid the payment of compensation the Council would then need to give at least twelve months notice of its plans to make the direction."
i) some limited basement development could take place under permitted development rights;
ii) planning permission was not required for such development and so it would fall outside the scope of the proposed BPP;
iii) as it was outside the remit of the planning system, it had the disadvantage that the Defendant could not control construction method and traffic, and assess other aspects of the development.
"1.8 Article 4 Direction: There are separate procedures relating to the introduction of an Article 4 direction. Should the Council decide to progress with an Article 4 direction procedures will require further consultation in due course."
"It is against this background that we note the statement at paragraph 34.3.46 of the reasoned justification for the proposed new policy, that "This policy applies to all new basement development".
As a matter of law, the emerging policy cannot remove existing permitted development rights. The statement at para 34.3.46 therefore cannot be correct, unless RBKC intends to make an Article 4 direction removing all permitted development rights over basements in the Borough.
Given the significantly increased value of properties which have had basement extensions, such a decision would have profound implications in terms of RBKC's liability to pay compensation, and we are unaware of anything to show that RBKC has budgeted for such liability.
In view of the above, Mrs Lisle-Mainwaring has sought the advice of Leading Counsel, Mr Paul Brown QC. We attach a copy of Mr Brown's written Opinion. We draw your particular attention to paragraph 14 and 18, where Leading Counsel concludes that the failure by RBKC to properly take into account permitted development rights potentially renders the emerging policy unsound and invalid."
"38. The 2004 Act at s38(6) says that "regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts". Permitted development basements are a general planning permission granted not by the Council but by Parliament. Because they have already been "determined" by Parliament this Policy does not legally apply to them. So the statement at paragraph 34.3.46 that the Policy "applies to all new basement development" is clear, effective and sound."
"[t]he Council will review the effectiveness of the policy if there is a doubling in the number of basements under permitted development when compared to the 12 months before the adoption of CL7."
This review mechanism is a safeguard to ensure that the effectiveness of the policy will be reviewed if there is a significant increase in the construction of basements using permitted development rights. The Defendant's annual monitoring reports, which include the monitoring of permitted development, were provided to the Inspector. During the consultation in July – September 2013, monitored data on permitted development basements was included in a document entitled 'Basement Development Data' (July 2013).
"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"With the introduction of Policy CL7: Basements and its stringent planning requirements, there would be an incentive for some owners to construct basements using their permitted development rights rather than applying for planning permission. Such development would not be caught by any of the requirements of Policy CL7 which have been carefully designed to mitigate harmful construction and other impacts on residents and the residential character of the Borough."
Ground 2: The Environmental Assessment
The statutory framework
"The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment."
"(b) 'environmental assessment' shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4 to 9;
(c) 'environmental report' shall mean the part of the plan or programme documentation containing the information required in Article 5 and Annex I;"
"Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I."
"(2) The report shall identify, describe and evaluate the likely significant effects on the environment of
a) implementing the plan or programme; and
b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme."
"An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information."
The competing submissions
"The Council will require all basements to be designed, constructed and completed to the highest standard and quality."
"4.4 The Council's evidence has demonstrated that the existing approach has not been as effective as it should be in managing the impacts on residents' living conditions, character and appearance of gardens with concerns about drainage and trees. It would be unreasonable for the Council to draw back from this policy framework and take a 'case by case' approach.
4.5 Given that one of the prime objectives of the policy is to bear down on the volume of excavation in order to curtail the individual and cumulative effect of basements on living conditions. A 'case by case' approach with no maximum limits would fail against these objectives." (underlining added)
The Defendant's policy objective/s
Many residents have expressed concern about basements, very largely during the construction phase, and in relation to the impacts on adjacent properties.
Alan Baxter Associates were commissioned to provide up to date evidence on a range of basement matters. The draft policy in this document is based on their report.
A questionnaire was circulated to gather residents' views of basements.
The new policy does not propose to 'ban basements'.
It proposes to maintain the current position in relation to:
- listed buildings, where basements are permitted under the gardens… but not under the building itself;
- sustainable urban drainage measures being required;
- light wells etc needing to be discreetly located; and
- measures to limit carbon emissions being required.
It proposes to limit basements to:
- a single storey ..This is on the basis that the larger the basement the greater the construction impact;
- under gardens to maintain natural drainage, for basements never to exceed 75% of a garden, and could be significantly less than that, depending on the surface water conditions on the site…
It proposes to give more weight to construction impact issues … including:
- construction traffic;
- construction methods;
- hours that building work can be carried out; and
- how to safeguard the structural stability of neighbouring buildings…
It is proposed that applicants will be required to provide information at the time the application is submitted (rather than related to a condition at the end of the process). On top of the existing requirements relating to Flood Risk and Carbon assessments, this will include assessments of:
- construction traffic
- how issues of noise, dust and vibration will be controlled during construction
- how to safeguard the structural stability of neighbouring buildings…"
"What has informed the review
1.13 Both consultations indicate that there is concern from a number of residents and amenity groups that the implementation of basement developments is having an unacceptable impact upon the living conditions of those living nearby. Of the 1350 neighbours who responded to the survey between 50% and 60% were concerned about the impact of construction noise, vibration and dust. 53% were concerned about construction traffic and a little over half noted an impact on their own property. Further detail was provided by additional surveys completed by a number of residents' associations."
"Basement development and the planning regime
1.22 Planning is primarily designed to assess the final physical form and use of a proposed development. Construction is not normally regarded as a planning matter, but where basements are under construction in a residential street, the extent and duration of construction can have a major long term effect on residential living conditions."
"34.3.57. Basements pose particular problems not raised by above ground extensions and developments….There are also concerns in relation to drainage and flooding and the considerable impacts that the construction process can have upon neighbours. Neighbours may also have concerns about the impact on the structural stability of properties in the vicinity…."
"34.3.58. For all these reasons, there is a need for a bespoke basement policy…"
"34.3.61. Given the duration of building works for the construction of basements, the tight urban grain and the constrained nature of many of the Borough's roads, the impact of the construction phase of a deep basement can be tantamount to being a 'bad neighbour' use. Basements beneath existing buildings or their gardens, or in small scale developments, will therefore be limited to a single storey which is not of a depth that may be suitable for further horizontal subdivision in the future. Deeper basement extensions may be acceptable on larger sites which are less constrained where impacts can be successfully mitigated. In addition, in order to reflect the particular impact that the construction phase of a basement dig can have, the Council will normally limit the construction of proposals which include a significant element of basement development to weekdays only. "
"34.3.74 Construction traffic can cause nuisance and disturbance for neighbours and others in the vicinity. The applicant must demonstrate that an appropriate approach has been taken to reduce this impact to acceptable levels, taking the cumulative impacts of other development proposals into account…"
"34.3.75 The methods used in construction can have a significant bearing on the quality of life of residents and businesses in the vicinity, in terms of issues such as noise, air quality, dust and vibration. The applicant must demonstrate that an appropriate approach will be taken, taking the cumulative impacts of other development proposals into account.
34.3.76 The structural implications of the construction of basements below existing buildings …. are of particular importance to local residents….."
Basement development must be of the highest quality. The Council will require Basement development to adhere to the following requirements: .."
i) restrictions on the extent of basement development, such as no more than 75% of each garden and no more than one storey;
ii) a bar on damage to trees or substantial harm to heritage assets;
iii) restrictions on design and construction;
iv) requirements to demonstrate that the adverse impact of construction traffic and activity on neighbours would be minimised.
"2.5 The preferred policy and various options are likely to have a positive relationship with the majority of the SA objectives, in particular with SA Objectives 1,5,6,7,9,10,11 and 16. This is as expected given that the stated purpose of the policy is for "basements and associated development to be of the highest design quality, to protect and take opportunities to improve the character and quality of buildings, townscape and gardens and the way the area functions, individually, cumulatively and in the longer term, to improve water management and to minimise the construction impacts on the neighbourhood." The alternative options are also considered to have a positive relationship with the SA Objectives.
2.6 The principal negative relationship that is likely to occur relates to that with SA Objective 9a, as policies to control the nature of basements may, in some circumstances, discourage the development on previously developed land. It is the Council's view that other ambitions should outweigh this objective.
2.7 The Council does recognise that a policy which may reduce the scale of basement extensions permitted may have a negative impact on SA Objective 3 (Fostering Economic Growth). The construction industry is seen as one of the key drivers for growth, and as such proposals which may suppress development could potentially have a slight negative impact.
2.8 Similarly, a policy which resists the creation of new residential units below ground could conflict with the objectives of SA Objective 13 (Housing needs)."
i) Paragraphs 34.3.48 – 34.3.49: basement development has increased and it is the subject of concern from residents about noise and disturbance, multiple vehicle movements; structural stability of nearby buildings.
ii) Paragraph 34.3.50: basement development next door can have a serious impact on the quality of life and multiple excavations can be the equivalent of a permanent inappropriate use; the Council considers that careful control is required over the scale, form and extent of basements.
iii) Paragraph 34.3.53: restricting the size of basements and reducing the volume of soil to be excavated will help protect residential living conditions by limiting the extent and duration of construction noise, vibration etc and reduce use of heavy vehicles.
iv) Paragraph 34.3.67: the developer must demonstrate that construction traffic, parking suspensions, noise, dust and vibration of construction will be kept to acceptable levels, having regard to the cumulative impact of other development.
i) generally, a cap on the extent of basement development under the garden, leaving the unaffected part in a single area. The cap was initially 75% in 2012 reduced to 50% in the final version;
ii) generally, only one storey will be permitted;
iii) no loss, damage or long term threat to trees of townscape or amenity value;
iv) safeguarding of heritage assets;
v) restrictions (albeit modified) on the introduction of light wells and railings;
vi) take opportunities to improve the character or appearance of the building, garden or wider area with external elements being sensitively designed and discreetly sited;
vii) sustainable drainage schemes;
viii) a minimum of 1 metre of soil above a basement beneath a garden;
ix) ensure that traffic and construction activity do not cause unacceptable harm to road safety, congestion, nor place unreasonable inconvenience on the day to day life of those living and working nearby;
x) ensure that construction impacts such as noise, vibration and dust are kept to acceptable levels;
xi) designed to safeguard structural stability;
xii) reliance on the policy requirements in Policy CE2 (Flooding).
"39. The Policy (CL7) restricts basement developments to not exceeding a maximum of 50% of each garden or open part of the site (criterion a.); to not having more than one storey (criterion b.); and not to add further floors where there is an extant or implemented permission or one built through permitted development rights (criterion c.).
40. None of these restrictions are to achieve basements "of the highest standard and quality" as it states in the preamble to CL7. They are, in fact, requirements to mitigate perceived adverse impacts of such development. Therefore, in order to be clear and thus effective I agree with the Council's modification (MM2) to delete the CL7 preamble and to simply state that what follows in the various criteria are the Policy's requirements."
"A bespoke basement policy must be consistent with the presumption in favour of sustainable development which the draft CL7 and supporting text is not. These are very clearly preoccupied with the perceived need to address a single source of complaint by some neighbours of some residential schemes and to do so through the planning system.
The solution is not to reduce by arbitrary criteria the number of basements Borough-wide or their complexity, but to approve only those which are demonstrably well designed by those who are competent to deliver a structurally sound and well designed basement and to ensure that they are implemented in a considerate way…" (emphasis added)
i) 1. To conserve and enhance the natural environment and biodiversity.
ii) 3. To support a diverse and vibrant local economy to foster sustainable economic growth.
iii) 5. To minimise effects on climate change through reduction in emissions, energy efficiency and use of renewables and adopt measures to adapt to climate change.
iv) 6. To reduce the risk of flooding to current and future residents.
v) 9. To reduce pollution of air, water and land.
vi) 9a. To prioritise development on previously developed land
vii) 10. To promote traffic reduction … to reduce energy consumption and emissions from vehicular traffic.
viii) 13. To aim that the housing needs of the Royal Borough's residents are met.
ix) 14. To encourage energy efficiency through building design; maximise the re-use of buildings and the recycling of building materials.
x) 16. To reinforce local distinctiveness, local environmental quality and amenity through the conservation and enhancement of cultural heritage.
"The Council considers that the negative impact on SA Objectives 3, 9A and 13 are unlikely to be significant and to be outweighed by the considerable benefits to the other SA objectives associated with the successful implementation of the policy."
"4.60 In terms of the SEA/SA the policies [i.e. the "preferred policy" and the "business as usual scenario"] are considered to have a positive effect on the majority of the Council's Sustainability Appraisal Objectives. Any conflicts with the SA objectives are only slight and are outweighed by the considerable benefits associated with the policy."
"19. It was said that the economic impact of the Policy's proposals had not been properly considered. The role of SA is to promote sustainable development by assessing the extent to which the emerging plan will help to achieve relevant environmental, economic and social objectives (PPG 1D 11-001). A SA should consider the plan's wider economic and social effects in addition to its potential environmental impacts (PPG 1D 11-007), focussing on those which are likely to be significant (PPG ID 11-009). It does not need to be done in any more detail, or using more resources, than is considered to be appropriate for the content and level of detail in the Local Plan (PPG ID 11-009).
20. Objective 3 of the SA is "to support a diverse and vibrant local economy to foster sustainable economic growth", and this was assessed. The SA noted that the Policy could potentially have a negative impact on this outcome, but that this was likely to be small because extensions under the Policy would add significantly to the value of properties, thereby offsetting any slight negative impact on the economy during the construction stage (paragraph 4.7). It also noted that unsuitable extensions could harm the attractive built form of the Borough and so in turn could have a negative impact on the economy (paragraph 4.16). The SA considered that the benefits associated with restricting basement development or influencing how they are built outweighed any negative impact (paragraph 5.2).
21. The economic assessment was appropriate for this development management policy which affects only one particular type of development, and it focussed on the significant factors. It was proportionate, adequate and relevant (NPPF 158). To have attempted to quantify the economic effects in more detail using monetary amounts (perhaps as a cost/benefit analysis) would not have been appropriate or proportionate, and would have taken more resources than would be justified to assess a policy of this type. It would not necessarily have brought any more clarity to the SA process as its figures would have been open to interpretation and vigorous dispute."
"Some said that basement development could be dealt with either through existing policies or other legislation, and so the Policy was unnecessary. I do not agree that other existing planning policies adequately deal with the subject for the reasons above. On other legislation, most of the tools available to the Council or to others are reactive or retrospective in their application. For instance, environmental health and highway remedies only apply once a problem has been identified and require evidence and legal action. Their resolution can be time-consuming and costly, as can disagreements and disputes under the Party Wall etc Act 1986.
"37. I conclude that there are good and compelling justifications for a positive planned approach for basement developments in the Borough which do not rely upon out-of-date existing planning policies or retrospective legal resolution. Government policy in the NPPF requires the Council to decide upon its approach to sustainable development by providing clear guidance to applicants and developers about what is likely to be permitted. An up-to-date comprehensive policy will enable necessary sustainable basement developments to be constructed in an appropriate manner from the outset."
The assessment of reasonable alternatives
"i. The authority's focus will be on the substantive plan, which will seek to attain particular policy objectives. The EIA Directive ensures that any particular project is subjected to an appropriate environmental assessment. The SEA Directive ensures that potentially environmentally-preferable options that, will, or may attain those policy objectives are not discarded as a result of earlier strategic decisions in respect of plans of which the development forms part. It does so by imposing process obligations upon the authority prior to the adoption of a particular plan.
ii. The focus of the SEA process is therefore upon a particular plan – i.e. the authority's preferred plan – although that may have various options within it. A plan will be "preferred" because, in the judgment of the authority, it best meets the objectives it seeks to attain. In the sorts of plan falling within the scope of the SEA Directive, the objectives will be policy-based and almost certainly multi-stranded, reflecting different policies that are sought to be pursued. Those policies may well not all pull in the same direction. The choice of objectives, and the weight to be given to each, are essentially a matter for the authority subject to (a) a particular factor being afforded enhanced weight by statute or policy, and (b) challenge on conventional public law grounds.
iii. In addition to the preferred plan, "reasonable alternatives" have to be identified, described and evaluated in the SEA Report; because, without this, there cannot be a proper environmental evaluation of the preferred plan.
iv. "Reasonable alternatives" does not include all possible alternatives: the use of the word "reasonable" clearly and necessarily imports an evaluative judgment as to which alternatives should be included. That evaluation is a matter primarily for the decision-making authority, subject to challenge only on conventional public law grounds.
v. Article 5(1) refers to "reasonable alternatives taking into account the objectives … of the plan or programme …". "Reasonableness" in this context is informed by the objectives sought to be achieved. An option which does not achieve the objectives, even if it can properly be called an "alternative" to the preferred plan, is not a "reasonable alternative". An option which will, or sensibly may, achieve the objectives is a "reasonable alternative"…
vi. The question of whether an option will achieve the objectives is also essentially a matter for the evaluative judgment of the authority, subject of course to challenge on conventional public law grounds. If the authority rationally determines that a particular option will not meet the objectives, that option is not a reasonable alternative and it does not have to be included in the SEA Report or process."
"42. I accept Mr Edwards' submission that the identification of reasonable alternatives is a matter of evaluative assessment for the local planning authority, subject to review by the court on normal public law principles, including Wednesbury unreasonableness."
"75 … Departmental Policy PPS12, which was in force at the time of the decisions, states of the requirement to evaluate reasonable alternatives, that "there is no point in inventing an alternative if it is not realistic". That and the phrase "obvious non-starters" used by Ouseley J in Heard's case (at ) [Heard v Broadland DC  EWHC 344 (Admin)] for proposals which do not warrant even an outline reason for being disregarded shows that the threshold is low."
i) not to amend the existing policy;
ii) resist the creation of basements within the curtilage of a listed building;
iii) resist all basement development within a conservation area;
iv) resist demolition which is carried out to assist in the implementation of a basement development;
v) set a limit of, for example 50%, as to the extent of development beneath a garden which will be permitted, in terms of visual impact/opportunity for tree planting in the future.
"Does the final Sustainability Appraisal … deal adequately with all the reasonable alternatives in assessing a policy for this type of development? Was there consideration of an impact assessment led policy approach alternative?
Note: paragraph 4.2 of the final SA says: "Alternative policy options were specifically considered in the December 2012 SA/SEA. As these were dismissed at that time, it is not considered appropriate to address them again in this document." However, legally the final SA must clearly set out the reasons for the selection of the Plan's proposals and the outline reasons why the other reasonable alternatives were not chosen during preparation. These choices may not have been made within the SA process (e.g. at a committee) but the final SA should set out those reasons. It should also state whether these reasons are still valid at submission. If this has not been done, I will consider asking the Council to prepare a correcting addition to the final SA. These legal principles have been set out in various court cases, e.g. see Heard v Broadland District Council & Ors  EWHC 344 (Admin)."
"As noted the final SA … refers to the consideration of alternatives in the December 2012 SEA/SA … The Council has also set out the options considered in section 6 of the Policy Formulation Report… However, the Council is working on producing an addition to the final SA to include the reasons for the selection of the Plan's proposals and the outline reasons why the other reasonable alternatives were not chosen during preparation. This will be sent to the Inspector and published on the examination website by the 12th September 2014."
"4. Rejected "unreasonable" options
4.1 When formulating policy a Council is required to carry out a SA/SEA to assess "reasonable alternatives" (Environmental Assessment of Plan and Programme Regulations 2004 (Reg 12 (2) (b)) and planning practice guidance (ID 11-018). As such the Council has chosen not carry out SA/SEA for two "unreasonable" options which have been suggested as part of the consultation process. The following paragraphs outline why the Council considers these alternatives not to be "reasonable".
The Council should introduce a policy which allows each development to be assessed on a case by case approach, on its own merits. No maximum limits for development should be specified
4.2 This option was considered "unreasonable" by the Council for the following reasons:
4.3 The Council's existing policy framework regarding basement applications includes Policy CL2 g of the adopted Core Strategy 2010. In addition the Council has a Subterranean Development SPD (BAS 93) adopted in May 2009 which provides guidance and is a material planning consideration in determining planning applications for basements. As set out in section 9.2.1 of the SPD the Council has applied a maximum limit of 85% on the extent of basements underneath gardens since its adoption in 2009.
4.4 The Council's evidence has demonstrated that the existing approach has not been as effective as it should be in managing the impacts on residents' living conditions, character and appearance of gardens with concerns about drainage and trees. It would be unreasonable for the Council to draw back from this policy framework and take a 'case by case' approach.
4.5 Given that one of the prime objectives of the policy is to bear down on the volume of excavation in order to curtail the individual and cumulative effect of basements on living conditions. A 'case by case' approach with no maximum limits would fail against these objectives.
4.6 A 'case by case' approach as proposed would fail to give clarity on decision-making to everyone concerned including applicants, planning officers, residents and Councillors.
4.7 Such an approach would lead to an inconsistency in decision making which would not be as transparent it should be. There would be long negotiation in every case with potentially conflicting consultant reports submitted to the Council and unsatisfactory outcomes for all. This would potentially lead to a greater number of appeals.
4.8 The case by case approach would fail to comply with the NPPF with regard to local planning policy formulation. In particular –
• Para 15 of the NPPF which states "Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally."; and,
• Para 154 of the NPPF which states "Local Plans should be aspirational but realistic. They should address the spatial implications of economic, social and environmental change. Local Plans should set out the opportunities for development and clear policies on what will or will not be permitted and where. Only policies that provide a clear indication of how a decision maker should react to a development proposal should be included in the plan."
4.9 The Council responded to this suggestion of a 'case by case' approach in BAS 06/02 (Council's response to para 5.), Council's Response to Basement Force. In this document the Council stated that,
"The criteria stated above would leave all aspects of the policy open to interpretation offering no certainty to applicants or the planning officers. Para 154 of the NPPF refers "Only policies that provide a clear indication of how a decision maker should react to a development proposal should be included in the plan".
The criteria above seeks to promote 'acceptable' development in most cases. Objective CO5 of the Core Strategy states "Our strategic objective to renew the legacy is not simply to ensure no diminution in the excellence we have inherited, but to pass to the next generation a Borough that is better than today, of the highest quality and inclusive for all. This will be achieved by taking great care to maintain, conserve and enhance the glorious built heritage we have inherited and to ensure that where new development takes place it enhances the Borough." Clearly as proposed the policy is neither compliant with the NPPF nor the relevant Core Strategy objective."
4.10 Clearly for all the above reasons the 'case by case' option with no limits would be wholly unreasonable not least because it would be taking a significant step back from the existing local policy framework. It would have the opposite to the desired aims of formulating the policy i.e. mitigating the harmful impacts of basements.
That the Council should resist any basement which does not lie entirely beneath the footprint of the property.
4.11 The evidence presented by the Council shows that a carefully designed basement, following considered parameters, will not necessarily cause harm. As such a policy restricting basements to the footprint of properties would run counter to the intention of the NPPF and as such would be inappropriate."
"83. Paragraph 4.5 of the Council's reasons for rejecting "unreasonable" options states "Given that one of the prime objectives of the policy is to bear down on the volume of excavation in order to curtail the individual and cumulative effect of basements on living conditions. A "case by case" approach with no maximum limits would fail against these objectives." That may be so but:-
a. The phrase "bear down on" is not clear but is taken to mean reduce the volume of excavation but the Council's own actions have led to a sharp rise in applications (those who fear that next year they will not be able to get permission are seeking to obtain consent now),
b. That the volume of excavation is the cause of impact on amenity is not proven and is contested by Basement Force and others. What makes the difference is a well ordered site and good management of traffic. If the size of the project is the issue, this is often determined by the scale and complexity of the above ground development rather than the basement element.
c. The policy blights all parts of the Borough and all types of basement construction (including commercial sites) with the same restrictive requirements.
d. There is no support in the NPPF or elsewhere in national policy or in the London Plan for the stated "prime objective" of the policy, around which and in pursuit of which all assessments (as to its ability to contribute to sustainable development for example) are subservient.
84. Reading the Council's reasoning as a whole, it is clear that instead of driving up standards in the delivery of sustainable development they are seeking a swift and efficient way of turning away development proposals. This is the antithesis of sustainable development.
85. The fact that the approach of Basement Force and others was not considered in the SA/SEA process is a fundamental flaw in the Council's approach in this matter, and undermines the legal basis for its proposed policy…"
86. For all these reasons,
a. The approach to drafting a Core Strategy policy governing basement development which is proposed by Basement Force and others is plainly a "reasonable alternative" and should have been assessed in the SA/SEA process…."
10. The final Sustainability Appraisal (SA) at BAS21 says: "Alternative policy options were specifically considered in the December 2012 SA/SEA. As these were dismissed at the time, it is not considered appropriate to address them again in this document." However, legally the final SA must clearly set out the reasons for the selection of the Policy's proposals and the outline reasons why the other reasonable alternatives were not chosen during preparation. These choices may not have been made within the SA process, but the final SA should set them out with reasons. It should also state whether all these reasons are still valid at submission.
11. Prior to the hearings the Council published a 'Correcting Addition' to the SA (BAS 21/01) which set out the alternatives considered in the previous SAs and confirmed that the reasons for not choosing them were still valid. This was further revised during the hearings (Revision A) to more clearly set out the Council's reasons for not carrying out SA on two options which were not considered to be "reasonable alternatives".3 One of these options was a policy where each development is assessed on a case by case approach, on its own merits with no maximum limits. Some representors said that this option was, in fact, a reasonable alternative and that the Council's explanation of why it was not had been stated too late in the local plan preparation process.
12. The Council said that this was not a reasonable alternative because: existing policies already include defined limits to such development and the evidence was that these were not preventing unacceptable impacts; it would fail to give clarity as to what was permissible; it would give rise to inconsistencies; it would not be transparent as to how decisions had been reached; and it would fail to deal with the objectives of the policy, particularly in dealing with adverse construction impacts.
13. The NPPF requires Local Plans to set out "clear policies on what will or will not be permitted and where. Only policies that provide a clear indication of how a decision maker should react to a development proposal should be included in the plan" (paragraph 154). I agree with the Council that a policy based on a case by case on its own merits, with no maximum limits, would not give a clear indication of what would be permitted or how a decision maker should react to a proposal.
14. Alternatives must be realistic and deliverable (PPG ID 11-018). As I say later, I agree with the Council about the unacceptable impacts of basement development under present policy criteria. I also agree that it would be unrealistic to expect a more relaxed policy to reduce those impacts, and that such a policy would not deliver the SA objectives sought by the Council in preparing a revised policy.
15. I therefore conclude that this type of criteria policy is not a reasonable alternative, and so the Council was not obliged under Article 5 of Directive 2001/42/EC and Regulation 12(2)(b) of the Environmental Assessment Regulations to subject it to a sustainability appraisal in its environmental report. To my mind this conclusion is clear and is considerably above the low threshold required before an alternative can be disregarded4.
16. The other option in this category was of only permitting basements which lie entirely beneath the footprint of a property, and I agree with the Council that this also is not a reasonable alternative for the reasons it gave.
17. Both of these options were only clearly explained by the Council at a relatively late stage in the Policy's preparation, just prior to the submission of the Policy for examination. SA is an iterative process – it is not a single document – which has to take place before a plan's adoption. Deficiencies, as here, can be identified during that process, even as late as the examination stage, and corrected using the proper procedures. I mentioned at the hearings the Cogent court case5 concerning a SA correction, initiated by one of my colleagues during an examination, which upheld this principle.
18. One of the tests in the Cogent court case was whether a correction to a SA was an exercise to justify a pre-determined strategy. I do not believe that to be the situation here. As I have said, I accept that both options are not reasonable alternatives, and so they should not be included in the SA and thus they do not affect the Policy's SA outcome. The Council were late in saying this, but it has now been stated. This is not a "bolt-on" to justify an already chosen preference. The SA has been corrected; it has been the subject of appropriate public consultation; and I have considered the responses – none of which have caused me to alter my views. Overall, I conclude that SA, with the Correcting Addition, has been properly and correctly carried out."
3 "Environmental Assessment of Plan and Programme Regulations 2004, Reg 12(2)(b) and PPG ID 11-018.
4 Chalfont St Peter Parish Council and Chiltern District Council and Holy Cross Sisters Trustees Inc  EWCA Civ 1393.
5 Cogent Land LLP v Rochford District Council & Anr  EWHC 2542 (Admin)."
The Council will require all basement development to:
a) not exceed a maximum of 50% of each garden or open part of the site. The unaffected garden must be in a single area and where relevant should form a continuous area with other neighbouring gardens. Exceptions may be made on large sites;
b) not comprise more than one storey. Exceptions may be made on large sites;
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;
d) not cause loss, damage or long term threat to trees of townscape or amenity value;
e) comply with the tests in national policy as they relate to the assessment of harm to the significance of heritage assets;
f) not involve excavation underneath a listed building (including vaults);
g) not introduce light wells and railing to the front or side of the property where they would seriously harm the character and appearance of the locality, particularly where they are not an established and positive feature of the local streetscape;
h) maintain and take opportunities to improve the character or appearance of the building, garden or wider are, with external elements such as light wells, roof lights, plant and means of escape being sensitively designed and discreetly sited; in the case of light wells and roof lights, also limit the impact of light pollution;
i) include a sustainable drainage system (SuDS), to be retained thereafter;
j) include a minimum of one metre of soil above any part of the basement beneath a garden;
k) ensure that traffic and construction activity do not cause unacceptable harm to pedestrian, cycle, vehicular and road safety; adversely affect bus or other transport operations (e.g. cycle hire), significantly increase traffic congestion, nor place unreasonable inconvenience on the day to day life of those living, working and visiting nearby;
l) ensure that construction impacts such as noise, vibration and dust are kept to acceptable levels for the duration of the works;
m) be designed to safeguard the structural stability of the existing building, nearby buildings and other infrastructure including London Underground tunnels and the highway;
n) be protected from sewer flooding through the installation of a suitable pumped device.
A specific policy requirement for basements is also contained in Policy CE2, Flooding."
Note 1 The 1995 Order was replaced by the 2015 Order with effect from 15 April 2015. [Back] Note 2 “Under Schedule 2, Part 1, Class A of the [GPDO 1995] single storey basement extensions that project no more than 3 metres into the rear garden of a single family dwelling are usually considered to be permitted development.” [Back] Note 3 “An applicant can apply for a Certificate of Lawful Proposed Development from the Council, which confirms that planning permission is not required for the proposed works.” [Back] Note 4 Directive on the assessment of the effects of certain plans and programmes on the environment. [Back]
Note 1 The 1995 Order was replaced by the 2015 Order with effect from 15 April 2015. [Back]
Note 2 “Under Schedule 2, Part 1, Class A of the [GPDO 1995] single storey basement extensions that project no more than 3 metres into the rear garden of a single family dwelling are usually considered to be permitted development.” [Back]
Note 3 “An applicant can apply for a Certificate of Lawful Proposed Development from the Council, which confirms that planning permission is not required for the proposed works.” [Back]
Note 4 Directive on the assessment of the effects of certain plans and programmes on the environment. [Back]