Eatherley: basement construction and engineering works
R (Michael Eatherley) v London Borough of Camden [2016] EWHC 3108 (Admin) concerns a proposed basement beneath a terraced house. The judgment explains why the works needed to create the space must be considered, not just the finished room.
The court quashed a proposed lawful development certificate because the council had applied the wrong test. It did not rule that every basement automatically requires an express planning application.
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- Neutral citation
- [2016] EWHC 3108 (Admin)
- Court
- High Court, Planning Court
- Judgment date
- 2nd December 2016
- Judge
- Cranston J
- Case number
- CO/3055/2016
The proposal and the council’s approach
The proposed basement was beneath the existing footprint of a north London house, without lightwells. Camden treated it as an enlargement or alteration under Class A of Part 1 of the GPDO.
The council accepted that construction would involve engineering work to protect the stability of the house and neighbouring buildings. It concluded that those works were covered because they were necessary and formed part of the basement project.
A neighbour challenged that reasoning. Engineering evidence highlighted excavation, underpinning, structural support and the potential effects of carrying out the works.
Necessary work is not always merely ancillary
The court applied West Bowers Farm Products. One physical process may involve two activities, each substantial enough not to be merely ancillary to the other.
The correct question was therefore whether the engineering operations amounted to a separate activity of substance. Showing that they were essential to constructing the basement did not answer it.
The nature of the excavation and removal of ground, together with the structural works needed to create and support the space, required assessment. The applicant’s drawings had described the space to be created rather than those engineering works.
What the court decided—and what it left to the council
The court rejected the invitation to make the fact-and-degree assessment itself. That was for the planning authority, applying the correct legal test.
However, Camden had misdirected itself by moving from the works being integral to the project to the conclusion that they were not a separate substantial activity. That error justified quashing the certificate.
It would be inaccurate either to say that Eatherley approved this basement as permitted development or that the court conclusively ruled all its engineering work outside Class A. The successful challenge concerned the council’s approach to the decision.
The practical distinction
Assess the proposed operations as well as the finished building. A lawful-development application needs enough information to answer the relevant legal questions; a later construction management plan cannot replace an assessment which should have informed that decision. Our wider guide to basement planning permission explains how this fits with Class A, existing cellar conversions, floor lowering and Article 4 Directions.
The judgment also considered Camden’s then-proposed Article 4 restriction and historical national guidance. Neither should be treated as a statement of today’s restrictions on a particular property.
Read the Eatherley judgment
The complete judgment is available to Gold Members.
Eatherley Case Law Page Updated: 12th September 2026