The appellant had been granted two LDCs for enlargements to the property, one of which included a basement extension. In opposing the appeal, the council’s main point was that the scheme involved engineering works which, it asserted, meant it fell outside the scope of part 1, schedule 2 of the GPDO 1995. This followed receipt of a legal opinion on another development and various appeal and court cases.
The inspector was not convinced that the other cases referred to by the council were on all fours with the appeal scheme. He found nothing in the order’s references to "development" as suggesting that engineering works were excluded. The issue, he opined, was not whether the works involved an engineering operation but whether they amounted to a separate activity of substance that was not ancillary to the activity benefiting from permitted development rights.
He noted that class E grants permission for a swimming pool, whether in a basement or a garden, even if sunken into the ground. The class clearly assumed that excavation works would be necessary and these must reasonably be ancillary to the provision of a pool, he decided.
In awarding full costs, he found that the council had not addressed the differences between the application and others or the meaning of class E, which by definition involved development that on a common-sense basis would involve engineering works. He noted that the legal opinion upon which it relied had been written by a barrister on behalf of opponents of a basement extension on another dwelling in the borough. This contradicted its own legal advice and it had behaved unreasonably in causing the appeal, he held.
Inspector: Simon Hand; Written representations