Soil & Trouble: Time running out for the 10,000 square foot basement

In an extraordinary long-running planning case, a homeowner has been ordered to demolish one of Britain's biggest subterranean extensions after digging out 9,000 tons of earth; as the July deadline approaches, Linda Boateng sifts through the legal issues at play...

You may have read about the Gloucestershire accountant who built a 10,000 square foot leisure complex, complete with a casino, cinema, squash courts and bowling alley, only to be told that he has until July 7th to demolish it all or face legal action…

No? Well having dug out 9,000 tons of soil and constructed the ‘fun palace’ 18 feet below ground level, he says that he believed the development was permitted under planning rules, partially because it ‘couldn’t be seen by anybody’. 

Here’s Linda Boateng with a run-through of the legal issues at play and advice for those similarly perplexed by PDRs…

Forest of Dean District Council has served an enforcement notice on Mr Graham Wildin for the development of a personal leisure centre in his garden, 18 feet below ground level, without planning permission.

The notice requires the development to be demolished in its entirety by 7th July 2017. Mr Wildin applied for a Lawful Development Certificate under Section 191 Town and Country Planning Act 1990 in order to ascertain whether the development was lawful. The LDC was refused on 24th February 2017, consequently, under section 191, (2)(b) of 1990 Act, the works constitute a contravention of the requirements of the enforcement notice and are unlawful.

The following points are relevant (but not exhaustive) for anyone who wishes to or has made home improvements:

Development means “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land” (s55 1990 Act) and requires planning permission unless it is Permitted Development;

PD rights allow certain types of development to be carried out without applying for planning permission and these are set out in the Town and Country Planning (General Permitted Development) (England) Order 2015.

An extension or addition to your house is considered as permitted development however this is subject to certain restrictions mainly relating to size. It is also important to check whether PD rights are excluded altogether such as development in a Conservation Area or an Area of Outstanding Natural Beauty;

Even if PD rights are applicable, prior approval from a Local Planning Authority might be required to ensure that specific parts of the scheme are acceptable before carrying out the works. The matters for prior approval vary depending on the type of development and are set out in the relevant Parts in Schedule 2 to the GPDO 2015;

Under s171B of the 1990 Act, a development (or change of use of a building to a single dwellinghouse) might be immune from enforcement action if it is carried out more than 4 years ago (or more than 10 years ago if it relates to a material change of use) however, cases of deliberate concealment of a breach of planning control could override the statutory immunity from enforcement.

Even if your proposal appears to fall under PD rights, as Mr Wildin assumed his did, there could be a direct conflict with the LPA’s development plan, as was stated by Forest of Dean District Council for refusing the LDC. If in doubt about whether your proposal requires planning permission or not, speak to your LPA or seek professional advice first to avoid incurring professional fees in defending an enforcement case.

Linda Boateng is an Associate at Russell-Cooke

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