Digging deep—government consults on basement developments

48501097 - a blueprint of an architect for the construction of a new residential building. symbolic photo for financing and planning of a new house.

Parliamentary concerns, together with unpopular media coverage and community feedback, have led the government to release a consultation on basement developments. Katherine Evans, planning and environment partner at TLT in Bristol, explains what the law currently says about extending down and what evidence the government is looking to accumulate.

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What is the DCLG consulting on?

The Department for Communities and Local Government (DCLG) has called for evidence on Basement Developments and the Planning System. This is not a consultation where the government makes proposals or asks specific questions about proposals, but a response to concerns that have been expressed in Parliament, the media and in local communities about the impact of basement developments.However, it is part of a process which may lead to a consultation on a set of proposals—once evidence has been gathered. The government is looking for specific examples from interested parties who have been directly or indirectly involved with basement developments with particular emphasis on two key areas:

 

  • the planning process and use of permitted development rights, and
  • the number of basement developments and the areas in which they take place

What is the background to the consultation?

The background to this call for evidence stems in part from concerns raised during parliamentary consideration of the Housing and Planning Act 2016. The government at that time committed to a review of the planning law and regulations which relate to basement developments. But the media has focussed on some high profile cases, primarily in London, where basement developments have been seen as substantially increasing floor space in a potentially disproportionate way to the existing building, together with creating a very unpleasant environment for neighbours, especially during the construction phase.

 

What is the current legal position regarding basement developments?

The current position in law is that some smaller basement developments are permitted development and do not require planning permission. The government points out that the local planning authority can influence and control basement developments currently by use of article 4 directions (pursuant to article 4 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596 and article 4 of Schedule 2 of the Town and Country Planning (General Permitted Development) (Wales) Order 1995, SI 1995/418). This would remove permitted development rights—or by the introduction of policies in local plans or specific supplementary planning documents that could be used in determining planning applications for basement development.In addition, other non-planning related legislation controls the way that development proceeds (Construction (Design and Management) Regulations 2015, SI 2015/51, Environmental Protection Act 1990 and Control of Pollution Act 1974) and the standards of construction that it must meet (Building Regulations 2010, SI 2010/2214and Buildings Act 1984). The operation of the Party Wall etc Act 1996 also provides a framework for resolving disputes with adjoining building owners.

 

What is the next stage in the consultation process?

Evidence must be submitted by 16 December 2016. Respondents are asked to reply to a series of questions including whether:

 

  • specific basement developments were considered permitted development
  • there was engagement with neighbours prior to works commencing
  • any specific planning policies may be in place to control potential impacts, and
  • improvements could be made to the existing planning framework to deal with potential impacts of basement developments

The government will then consider all the evidence submitted and has said it may be used to inform future action, including potential changes to policy, guidance and legislation, but as yet no specific details have been given as to what these changes may be.

Katherine is the head of planning at TLT. She is experienced in all aspects of planning, highways and compulsory purchase/compensation. She acts for developers, financial institutions, minerals and waste operators, public bodies, private landowners and individuals.

Interviewed by Jenny RaynerThe views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Filed Under: Planning

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