PLANNING (SUBTERRANEAN DEVELOPMENT) BILL

SECOND READING DEBATE IN HOUSE OF LORDS ON 20 NOVEMBER 2015

 

Lord Dubs

My Lords, anyone looking at their newspapers will see, at frequent intervals, articles about basement excavations. Invariably they will describe the anger of neighbours who are fearful of being subjected to noise and disturbance. If these basement excavations have not reached the parts of London where your Lordships live, there will not be long to wait at the present rate of progress—they are sweeping through from borough to borough.

In yesterday’s papers, there was an item about an application to build under a house in Primrose Hill—a pretty affluent part of London. The extension would stretch under much of the garden, and house a swimming pool, a plunge pool, two massage rooms, a sauna and a steam room. It would also feature, among other things, a Jacuzzi, a gym juice bar, cinema room, games room, bar, cigar humidor, wine store and banqueting hall. It must be tough living without these things in one’s home and I suppose that some of us are still learning to cope. My understanding is that such developments already require planning consent, so, although some of them are pretty awful and are appalling for the neighbours, my Bill is not aimed specifically at them.

My concern is directly mainly at basement excavations that do not require planning permission, leaving local authorities powerless to stop such developments. They come under what I think is called “permitted development”. If the basement excavation is within the footprint of the house and there is no light-well, it is a permitted development and the local authority is pretty well powerless to stop it. If I am wrong, I shall be delighted, but that is what local authorities have been telling people who have come to me complaining about developments in their area.

In the recent past, Private Members’ Bills have been introduced in both Houses dealing with this topic. As recently as September this year, my honourable friend Karen Buck, MP for Westminster North, put forward a Bill, as she has done on a number of occasions. A year or two earlier the noble Lord, Lord Selsdon, also put forward a comprehensive Bill. That resulted in certain undertakings from the Government but, as I understand it, so far nothing has happened, and the noble Lord will no doubt describe this in more detail when he speaks later on.

My point is that this is not a party-political matter; it has support across the political spectrum because we might all suffer, or our neighbours and friends may suffer. It may be seen as a Bill against millionaires, but that is not the intention; it is simply intended to give local authorities more powers than they have in certain circumstances. I am trying to protect those in many of the smaller houses.

There has been a positive epidemic—I use that word carefully—of basement excavations in recent years, and not just in Westminster and Kensington and Chelsea, which have attracted the most publicity. Now, they are extending to Camden, Hammersmith, Wandsworth, Lambeth and Richmond—and probably further. While walking here from my office in Millbank House, I spoke to a Member of this House. He apologised that he would not be able to take part in this debate, as he would have liked to have done so, but he confirmed that these excavations had reached Richmond.

The reason for the spread of these developments is pretty obvious. Given the rise in house prices, it is significantly cheaper to enlarge a house than to move out and buy something bigger, with stamp duty and all the other costs that that involves. So the trend is likely to extend to other parts of London and elsewhere in the country unless checked by giving local authorities a bit more power in their areas.

All building work clearly disturbs neighbours. Nobody wants to have any building work next to them, but roof extensions or rear extensions are not nearly as disturbing as digging into basements, and I base that on evidence from people who have experienced it. Many people are very upset about the present situation, and I shall quote from what people have written to me:

“I live in a small road, where houses are close together. My two neighbours opposite and I are at home all day, working. In the last few years, three houses very nearby have had basement floors dug out. Ordinary extension building, roofing etc. are short-lived. Basement digging is a truly industrial undertaking, and plunges everyone around into that world for 3-4 months, whether they like it or not”.

To my knowledge, it often takes longer than three or four months; builders start and they go away, and it goes on for a long time. I go on quoting:

“Unlike other building work, this creates a truly intolerable noise, which continues all day including Saturday mornings, (large generator, squeaking belt, lumps of earth falling into empty skip, daily skip deliveries, industrial scale material deliveries, scraping, shouting, banging, clamouring, clanging and general mayhem). This continues for 3 months or more. So far two summers and one winter have been made utterly miserable. In summer it has been impossible to be in the garden, or to have any windows open. The latest digging (next door) has obviously been the worst for me, despite windows being shut. I am rigid with tension, every activity inside my house is disrupted, including thinking: creating a catalogue of breakages, things forgotten, or abandoned in mid-stream. I am trying to ignore it all, and sometimes go out on pointless errands for an hour or so of peace, but am frequently in tears, or on the phone trying to support my elderly neighbours opposite”.

 

Another neighbour was trying to sleep in the daytime because she was in hospital every night with a sick child—she was also pregnant. She did not get any peace during the day.

Businesses can be affected. Recently, there was dramatic media coverage of the owner of a music recording studio who said that he would have to close his business if a neighbouring property has a basement excavated. So these things affect residential properties but they also affect people conducting business in the area.

The key point is this: I understand that “disturbance to neighbours” is not a reason for refusal by a local authority under present planning laws. That applies whether, in other respects, a planning application would be necessary or whether it is a permitted development and would not be. My Bill seeks to establish a new principle for local government planning: “disturbance to neighbours” should be a consideration that local authorities can take on board.

There is nothing novel in that principle. Take large infrastructure projects, which do not come under local authorities. For example, people living near the Crossrail construction spent a lot of time complaining, arguing and lobbying about the noise and disturbance that would be caused by the digging and ongoing work. The argument about disturbance is a key factor in the debate about a third runway at Heathrow and the effects of HS2. For large infrastructure developments we are prepared to say that local people can have a say.

For smaller things, such as basements—although they are not always small—in many cases local authorities do not have the power. In principle, there is nothing new in this, except that I apply it now to local authorities.

I believe that there is a need for new legislation. However, it has been put to me by the noble Lord, Lord Selsdon, who will speak later, that regulations might be sufficient. That may be the case, and I am open to persuasion.

Certainly, when I asked a Question on this subject earlier this year, the noble Lord, Lord Ahmad, said:

“My Lords, this Government consider that powers already available to local authorities are sufficient to control the planning and construction processes of basement development”.—[Hansard, 12/3/15; col. 753.]

 

I challenge any Minister to say that to people who are suffering. Tell them, “It’s okay; it’s all under control”—they will know that it is not.

The present position is sometimes misunderstood. Certainly, near me in Hammersmith, neighbours were complaining about a development and they misunderstood the position. They thought that the local authority could do something but the local authority said that it could not, for the reasons that I have said: the development was within the footprint of the building above and did not involve a light-well.

My Bill is not against all basement excavations. I argue that, in certain circumstances, there should be a presumption to refuse if certain things apply. The first of these is if the house is on a flood plain—maybe that is partly covered, but not totally. The second factor is terraced housing. If one has a free-standing house, it is quite easy because one does not disturb people so much and it is not going to damage the house next door. But with terraced housing, the concern is not just the disruption of the work but also the knock-on effect of having a basement dug and then cracks appearing in neighbouring houses. I am not sure that party wall agreements are sufficient to cover it—certainly, that is what people have told me and they suffer for years from the damage done.

As I have said, the presumption to refuse in my Bill applies if the development is on a flood plain, if it is terraced housing, if there is significant local opposition and/or if it would cause unreasonable disruption to neighbours—the last two are pretty well linked. These criteria would give local people a say in something that affects their lives. After all, the people who are not digging basements get no benefit from it, yet the people whose basements are excavated move away. They find somewhere else to live while it is going on; they do not suffer any of it. It is the people living next door who have to put up with the noise and the nuisance, and then the knock-on effect of possible damage to their building.

I have had people say to me, “We support your Bill so that others do not have to suffer as we have done”. I beg to move.

 

Lord Selsdon

My Lords, I am most grateful to the noble Lord, Lord Dubs, for his Bill because he has taken an enormous weight off my own shoulders. Four years ago I introduced a Bill in your Lordships’ House, having worked in the construction industry for some time, to look at development. We had one of the best teams that I have ever come across, from the Pyramus & Thisbe Club, which I am sure your Lordships will know well and was founded when a big building block collapsed and brought down lloyds Bank. This was effectively the origin of the club, which looked at rules and regulations relating to development.

Your Lordships will be aware that this great building here, on Thorney Island, is built on not very much—logs of wood. Downing Street is, I believe, built on faggots, and the average depth of a building in the Greater London area is approximately 12 inches. So there is a problem with foundations. The purpose of my Bill was to introduce some regulations that could be followed voluntarily. We had great confidence in the Civil Service. We said, “Let’s not move on to having a Committee stage; let’s do this all by regulation”, because there was no need for any new legislation. However, what happened within the Civil Service when we sat down to meet was that people could not attend a particular meeting or another—we had a whole range of meetings—and no one got anywhere. All it needed was regulation.

That is where we are now. I should explain that I spent many years in the construction industry. My latest experience of a subterranean development is of minding my own business in our house in London—near to which eight subterranean developments are now taking place and I am not one of them—when the wall where all my confidential parliamentary papers were stored half-collapsed and a bald head appeared through the midst of Hansard documents. It was a Romanian builder, who with a hammer drill had by mistake hammered too hard and knocked down the party wall.

The point made by the noble Lord, Lord Dubs, about the lack of comfort that comes with development is pretty serious. You have a scene with television lines being ripped up, telephones going wrong and the vibration, and no bother and no regulations. So what is needed is regulations, and what I am going to ask the Government for is very simple: I will give them again a copy of this particular Bill and of the documents from the party wall team, which is one of the best you will find in the world, and ask whether we could have another meeting. Within a week or four weeks, we could produce the regulations which would solve all those problems.

I wanted today also to speak on the asbestos Bill, because I started my time in the construction world working for a company called Universal Asbestos—because asbestos was one of the best insulation materials of all—but having listened to what was said today, I think that I have survived so far so well and feel much better.

This could be done by regulation. We are talking of the underground situation in London—I will make available, if your Lordships wish, the routes of all the rivers and where they go from. Water became a problem because the foundations were linked to beer. When the breweries were in London, they consumed an enormous amount of water, and they pumped and sucked out and kept the subterranean surfaces from being damp. One of the reasons why foundations were not deep was because of the presence of water in all those areas.

I do not need to waste your Lordships’ time. I am totally supportive of the Bill and expect the Government, within a matter of weeks, to arrange to hold the meeting we originally planned two years ago. The details are all on file—if they do not wish to look for them I can provide them—and we could meet and do something before Christmas.

 

 

Baroness Gardner of Parkes

 

My Lords, my interest in this subject is long standing. It dates back to the time when I asked the then Secreatary of State what his views were on subterranean development. His response was to ask what I was talking about. This was not surprising as he lived well outside London and, at that time, only London was impacted by the issue. Everyone now seems to have a view on basements. I certainly do and I am sorry to say that this Bill will not be helpful.

I strongly oppose Clause 1—“Presumption against subterranean development”—as it is not in the best interests of the public in general and homeowners and is the wrong way of dealing with planning applications. In addition, the part of the clause about the application being,

“reasonably necessary for the proper enjoyment of the property to which the application applies”,

is far too subjective. Why should councils not be able to deal with applications and applicants on an objective basis and under present planning procedures? Why should the applicants be subjected to intrusive inquiries about their lifestyles, and what is meant by “proper enjoyment”? At the very least, this clause should become objective.

A detailed construction management plan is essential for the granting of any basement application, and this must be submitted in full at the time of the application and before any attempt is made to commence. Like the noble Lord, Lord Dubs, I, too, know of people who have been awoken by the sound of neighbours drilling through their wall. There was no party wall agreement and they had no idea any development was proposed. The necessary agreement should be reached about waste removal by trucks, and minimal disruption to local roads and homes should be planned for. All work must be under the supervision of a suitably qualified engineer and the quietest available equipment should be used during the works. The noise nuisance element can badly affect neighbours whereas, as the noble Lord, Lord Dubs, said, the owner of the property is not usually in residence when the major excavations and noise take place because the house is uninhabitable then.

The two central London boroughs—Kensington and Chelsea, and the City of Westminster—probably receive more of these applications than other boroughs. They have implemented excellent guidelines and conditions for those wishing to build underground. I have studied the 54-page Westminster document on basement policy, which came into force on 1 November. It is comprehensive and I shall add a few more comments in a minute.

Kensington and Chelsea’s policy dates back to its acceptance in January 2015. It has been in operation for nearly a year, and there has been a considerable drop in the number of applications in that time—possibly due to a surge of applications determined to beat the deadline. This morning I spoke to an officer of its planning department, who was clear that any presumption clause limits the right of a local authority to deal with applications in the way most relevant for its community. That is an important point. Why should local authorities not have control of these applications through the normal planning process, as now? Two boroughs have already set the scene by drawing up clear and definite conditions, which is valuable. I pay credit to Dr Thompson, a resident in Kensington and Chelsea, who did a great deal to draw attention to this and to gain the support of the local amenity societies.

Kensington has issued general criteria stating that it will look favourably on a development of a single storey along with 50% of the garden only if all the other conditions are met. Given that Westminster is now following suit, Kensington is probably the leading borough on basement applications policy. But, times have changed dramatically. When the noble Lord, Lord Dubs, mentioned large Victorian houses, I should say that I lived in one and, sure enough, I could have had a huge basement. But the first thing I did when I moved into the house in the 1960s was to move out of the basement because I could manage without it. Various nice people rented it from me and were happy to have it as their full dwelling. Those houses had plenty of space. It is the terraced houses that are more in need of extension into the basements because, on the whole, a family will occupy such houses fairly fully. As children grow older, they need a bit of space away from their parents, or indeed the general household may reorganise itself. Terraced properties are important, and the presumption against subterranean development is just too sweeping.

I should like to respond to the comment by the noble Lord, Lord Dubs, about angry neighbours. That is true, and it is typical that everyone is more concerned about what is happening on their own doorstep than they are about general principles. Permitted development is covered on page 11 of the Westminster document, where there is a chart with 29 boxes, set out in five different colours, which allow you to trace which requirements are relevant to whatever application you are making. The exact list is also set out on another page. It is essential that all these details be submitted with the application. It is not a case of putting in the papers and hoping to have done what is needed—or else get away with it.

I do not often agree with my noble friend Lord Ahmad, and I crossed swords with him when he was in the department dealing with this issue, but I did agree with his statement to the noble Lord, Lord Dubs. The present planning powers are sufficient if used correctly. I have mentioned terraced housing. Local people have a say now. Dr Thompson has done a huge amount to stir up local people to take an interest, but different things can happen. For example, the area I have just moved away from is unusual, in that it is not part of a conservation area but the houses on one side of the road back on to a square of listed buildings. On the business side of the single street, as I will call it, every building was rebuilt during the 10 years I was there, and now every one of them has an extra four storeys on top—and probably beneath as well, but I do not know about that. But on the residential side, where I was, there is a little terrace of five houses. The terrace has been bought by someone who is going to redo all five houses because, apparently, the council wants everything to match, so no one will suffer any inconvenience. But no upward development is allowed on that side of the road because that would impinge upon the listed buildings in the square. Those residents object to upward development, so it is a very unfair situation. If the developer is not allowed to develop downwards, there is no way of extending the properties at all, and yet the people in the listed buildings have all been allowed to add an extra floor to their properties. The situation is very strange.

Around the corner from where I used to live is a hotel, built for the Olympics, that goes six storeys underground. It caused no bother to anyone while it was being built and when you enter that part of the hotel, you have no idea that you are underground; it looks the same as any other part. These things are complicated, but it is important that before people start their developments, the planning application is considered and party wall agreements are in place. For that, I think that the powers are sufficient.

I shall make one more comment, because I am lucky enough to be able to speak for longer than the three or four minutes we had for some recent debates. I believe there is a misprint in the Bill. Clause 4(3) states:

“The Secretary of State may be regulations, which I think should read, “may by regulations”. I look to the Minister to tell me whether that is really meant to be there, but I think it is just a typo.

As I say, I worry about presumption and I am opposed to it. The answer is to deal with these issues under the present system.

 

The Earl of Lytton

My Lords, I welcome the opportunity to discuss this Bill. I congratulate the noble Lord, Lord Dubs, on his success in the ballot and thank him for bringing the Bill forward. I declare my interest. As noble Lords know, I am a practising chartered surveyor and I am actively involved in party wall cases, including basements. I had the privilege of taking the 1996 party wall legislation through your Lordships’ House in my previous incarnation. I also chair my professional body’s specialist panel—the RICS Boundaries and Party Walls Panel—which covers this particular area. I participated in a consultative group set up by the Royal Borough of Kensinton and Chelsea to look at its policy on basements. However, my views are entirely my own and not those of any other person or body.

A high proportion of my party wall casework involves basements. In London, that almost always involves terraced or semi-detached properties. The drivers behind all of this will be well known to many of your Lordships. Certainly, in central London what can be correctly described as an epidemic is deriving from very high residential floor-space values; for example, in central London, even at basement level, these are likely to be 10 times the value of above-ground floor space in my part of West Sussex. There is a lack of remaining opportunities to build out at the back or above pre-existing roof heights because of planning constraints. I was interested to hear the noble Baroness, Lady Gardner, who has so much experience in this area, talk about the rather differential way in which some of these things are applied. Considerations such as daylighting and protection of what we might call the street scene above ground very often lead to pressures to go down as a last resort.

Of course, there is also the attraction of high and growing property values in the UK, particularly in London, to high-net-worth individuals or companies perhaps seeking a safe haven for money that might otherwise be lodged in less stable jurisdictions. But I particularly think of long-term existing residents, for whom the transactions and other costs, not least of stamp duty, of moving house in central London and a need to accommodate growing families are particularly acute.

The Bill perfectly legitimately addresses some of the most difficult areas commonly encountered to avoid them slipping through as permitted development. That is the nub of the issue. It does not say no to development but simply brings it within the conscious consideration of the local planning authority. That is an important distinction because, if the view gets out that this is anti-development per se, in terms of the Environment Agency’s flood map alone there is a large amount of blue ink all around central London, particularly south of the river.

On the geotechnical side, where there are risks of flooding, ground-water, mentioned by the noble Lord, Lord Selsdon, is an associated matter. It is connected with infiltration, natural subterranean watercourses and ground-water migration routes, to which the noble Lord, Lord Selsdon, has drawn attention in the past. Deep basements in particular can intrude into ground-water dynamics. These schemes are often high-risk, involving demanding piling and other techniques on friable, unstable or waterlogged soils. Often, in urban environments, they are in incredibly tight spaces within the envelope of buildings.

On building stability—and I am particularly thinking of the terraces where so often I have been involved with such matters—the basement may be constructed effectively under a property which forms part of a larger hole, with shared structural elements such as party walls. An exacerbating factor is that the ground floors of terraced houses have often long since been opened up to make through-living accommodation, so that the living room runs from front to rear, including the kitchen and breakfast area, in one large open family area. Of course, that means that the original design criteria of the building are compromised because of the lack of internal rigidity—the internal webs of walls that would otherwise have held the walls apart. Although there are beams and other things that take account of that, it means that you are dealing with weaker structures.

Imagine, then, a situation where basement construction is taking place next door, with the potential implications. I have spoken to many consulting engineers who have been really quite worried about the implications of this. However, the same family of consultants can readily justify the safe execution of basements, notwithstanding the demanding and constrained sites and difficult soils. I have seen this. However, it relies ever more on the diligence and knowledge of a building contractor. Once the building contractor is on-site, the project is then in a different regulatory regime. If the supervision that has been put in place under the contract is not robust, the only way it can be policed is if there is a breach of health and safety, or the local authority, through its building control functions, has it brought to its attention that something irregular is taking place.

I turn to the question of local opposition. The continued enlargement of residential buildings by excavating downwards eventually means that many modestly sized properties no longer fall into the category of “modest”. They may in relative terms, particularly in the London context, no longer be affordable. The term used is “iceberg homes”, where a sizeable proportion of the accommodation sits underground. Nobody should be arguing, and I do not argue, that basement construction per se is bad. After all, as we heard from the noble Baroness, Lady Gardner, many commercial buildings do this ab initio and have multiple basements constructed as part of the original planning. It is the problems and implications of widespread serial retrofit on existing, older technology construction that are the issue here.

I turn to amenity. Because of the popularity of basement construction and the difficulty and duration of its execution, residents in quiet streets can be subjected to construction works that go well beyond the norms of renovation, decoration and modernisation, to the point where it becomes a major construction project. I admit to being professionally involved with these as well. Excavating on tight sites through narrow frontages—sometimes necessitating loading of the excavated material and delivery of incoming materials in narrow, possibly one-way streets, with bins for loading and unloading stuff in the street itself and obstruction to access to adjoining properties and along the pavement—can be coupled with the inevitable noise, vibration, dust and dirt. A series of these projects in a street can, as I have seen, turn a quiet, leafy residential area into something akin to an industrial zone for perhaps a decade or more. That requires addressing.

Even were the Bill or provisions in it to become law or become subject to regulation, the current range of safeguards is not failsafe or comprehensive. Even policies such as those of the Royal Borough of Kensington and Chelsea can be circumvented in certain circumstances. Of course, appeals can overturn even careful wording. Many other planning authorities have less robust policies. I do not include Westminster City Council in that, nor the London Borough of Camden. The developer of a basement scheme does not now even have to go through local authority building control. It can go to some other, possibly favoured person as an approved inspector.

I have listened to a lot of tales recently of poor construction standards. Indeed, the firm I now work for has a lot of involvement with such things and so I know that construction standards are an issue. The Party Wall etc. Act 1996 has been referred to. This is often seen as the fall-back when other regulation does not work. However, it has a very narrow focus and governs the manner and the timing of the execution of specific adjacent works within tight statutory parameters, but not the wider project as a whole. Furthermore, environmental health and other functions of planning authorities are often at full stretch and they have limited ability and resources, particularly those which may be needed when prosecuting a wealthy owner of a property.

Certainly, the Bill warrants further discussion in Committee. I have some reservations; for example, I would like the local opposition provision to be subject to something a bit more specific and more robust than the rise of some ad hoc ginger group pitched against a mega-rich oligarch. I would not want to encourage that. That said, I support much of the sentiment of the Bill, if not all the detail, and certainly look forward to discussing it in Committee.

 

Lord Marlesford

 

My Lords, I support the Bill, particularly Clauses 3, 4 and 5. I now have no interest to declare but do have an experience to relate. I have for 47 years lived in a small house in Battersea. The noble Lord, Lord Dubs, was for many of those years the most efficient and excellent local Member of Parliament responsible for my welfare.

Our house is a Victorian terraced house in what is now a conservation area. On 12 December 2013, out of the blue I received a letter dated 5 December from a junior planning officer in the planning department of Wandsworth Borough Council, advising me that my neighbour, who had recently bought the adjoining house, had applied for the construction of a basement and an extension over the very small gardens that these houses have at the back. The letter told me that I had to make any comments by 26 December. That gave me 14 days, including the Christmas holidays.

A couple of days later, I had a letter from a surveyor, telling me that he represented the new owner and that he intended to start work within a month—that was, early in January 2014. That suggested to me that the council had already indicated that planning permission would be granted, long before it got in touch with me. I had never met the new owner, or heard from him. I echo the great Dr Johnson, who said that he,

“did not care to speak ill of any man behind his back”, but I had heard that he was a banker.

The council is supposed to post notices of planning applications in the street. It had omitted to do so: an omission consistent with the timescale it was trying to impose. My wife and I were really upset, especially when my neighbour’s surveyor then wrote to me saying that unless I appointed an independent surveyor to represent me, he would appoint himself in this role. Fortunately, our friend and neighbour on the other side of the developer is a charming and brilliant barrister. He leapt into action. First, we jointly appointed a wonderful planning surveyor, who held our hands from then on.

I may say that despite representations to Wandsworth council, it did absolutely nothing to help at any time. I never did discover what lay behind that extraordinary attempt to rush through the planning application.

And our own councillor—a Tory, I am ashamed to say—despite repeated applications, never found time to come and see us.

Fortunately, we were able to prevent the extension being built, which would have taken the light from the gardens, and although the inside wall of our ground floor room was cracked by the basement work next door and had to be reinforced with steel bars and redecorated, all is now well. However, we had a most unpleasant 18 months which I would have gladly paid several thousand pounds to have avoided.

I should add that during this worrying time I had a lot of advice and support from my noble friend Lord Seldon, who I recognise as one of the leading experts in this area, particularly in this House. So your Lordships can see why I want to support the Bill proposed by the noble Lord, Lord Dubs.

  

Lord Kennedy of Southwark

Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs)

 

 

My Lords, I congratulate my noble friend Lord Dubs on securing this Second Reading for his Private Member’s Bill to day. I should declare that I am an elected member of Lewisham Borough Council and serving on the planning committee. Although subterranean development has not come before the committee as of yet, as my noble friend said, it may well be on its way very soon.

This development appears to have broadened out from being a matter largely confined to parts of Westminster and Kensington and Chelsea. As we have heard today, it is now being considered in the boroughs of Camden and Hammersmith and Fulham, and has crossed the Thames to Wandsworth and Lambeth. I can offer my noble friend Lord Dubs my support for his Bill, as it seeks to offer some protection to people from what is a relatively new concept of subterranean development. I first recall this development being discussed in your Lordships’ House during the passing of the Localism Act in the last Parliament.

My noble friend’s Bill is short and to the point. It places a duty in a presumption of not granting permission for subterranean development unless it is reasonably necessary for the proper enjoyment of the property to which the application applies, where at least one of four specific conditions apply. Those four conditions are: where the property falls within the floodplain; where it is a terraced house; where there is significant local opposition; and where there is unreasonable disruption to neighbours. I will deal with each of these in turn.

Floodplains can contain unconsolidated sediment and there are many rivers running underground in London. Earlier this year, I visited the building site at Victoria Tube station. I saw first-hand and heard from the engineers there about the problems of building underground and dealing with unconsolidated sediments, as they are so close to the River Thames. These sediments are just an accumulation of sand, gravel, silt and clay. The noble Lord, Lord Selsdon, made the point in his contribution about the foundations of buildings in the London area and very close to this noble House. With his professional hat on the noble Earl, Lord Lytton, also made reference to the foundations of buildings and underground rivers, and the effects those can have on any construction.

Terraced housing is a particular problem and a worry for owners of adjoining properties, who fear that their property’s foundations could be damaged and undermined. I agree very much with the comments of the noble Lord, Lord Marlesford, on the problems he has had in his property in the Battersea area, where residents were not consulted properly, nor their views taken account of. I recall in our discussion of what became the Localism Act cases of this work being started and then, for whatever reason, the work stopped. The funds run out and people can be left with a dangerous situation, with a property excavated next to them and no proper form of redress.

Significant local opposition might be demonstrated by the submitting of a petition from local residents. The Bill would give the Secretary of State powers to make regulations to set out the circumstances in which a planning authority shall be deemed to have reasonable grounds to believe that there is significant local opposition to subterranean development. Finally, the planning authority may have reasonable grounds to believe that this development is likely to cause unreasonable interference to the use of land and its enjoyment by others. My noble friend Lord Dubs outlined the noise and disruption that people have suffered during basement excavations and how intolerable that can be. He is right that disturbance should be considered when looking at planning applications.

The noble Baroness, Lady Gardner of Parkes, made a number of important points that can be explored fully during Committee. We ought to get the balance right on procedures and regulations to make sure that residents are protected.

My noble friend’s Bill does not say that permission cannot be given. Measures can of course be brought into play to mitigate each of the points outlined. However, by changing the presumption it means that specific and detailed work will have to be done before getting over the hurdles to have permission granted.

I have on numerous occasions stood at the Dispatch Box when discussing Private Members’ Bills and suggested that it is not very helpful to the House or to the Member presenting them that all such Bills are referred to a Committee of the whole House, and that the Government should consider referring some Private Members’ Bills to a Grand Committee. We could get a lot of detailed work done in Grand Committee and bring it back for Report. This Bill would in my view do very well with a day or two in Grand Committee. I hope that the Government will finally look at that.

When the noble Baroness, Lady Williams of Trafford, responds, it would also be useful if she would comment on the point made by my noble friend Lord Dubs about the relaxing of permitted development: has that actually made the situation worse, as my noble friend outlined? I also think that the Bill could be improved by including specific protection for residents if a subterranean development is approved. It may also be worth strengthening Clause 3 on terraced housing to include specific protection for the owners of adjoining property—perhaps specific insurance that protects individuals if the development goes wrong or work stops. That is really important. I would also like the regulations to be very specific about the petition that needs to be completed to demonstrate support in the area.

The noble Lord, Lord Selsdon, says that what is needed is regulation. I very much hope that he is right. If he is and we can get it all sorted out by Christmas, everyone in this House will be absolutely delighted. I am sure that in her response, the noble Baroness will update the House on whether she thinks that that is achievable.

 

Baroness Williams of Trafford

The Parliamentary Under-Secretary of State for Communities and Local Government

My Lords, I start by thanking the noble Lord, Lord Dubs, for introducing the Bill to the House and for setting out its purposes. In response to a question from my noble friend Lady Gardner of Parkes, he confirmed that there is a slight error in the Bill, which I hope will be corrected.

I take most seriously the concerns that noble Lords have raised today. I declare an early interest in Primrose Hill, being one of its residents, but I assure the noble Lord, Lord Dubs, that I am not au fait with what has been dubbed the Death Star basement development—because I am probably not rich enough to live anywhere near it. I do not underestimate the disturbance and distress that subterranean development can cause. I know that it is a particular problem in some areas, including some London boroughs. As some noble Lords said, it is a problem that appears to be spreading out to areas such as Camden.

The issues around subterranean development can be very complex and cover many aspects of the planning and construction process. They include concern over noise and general disturbance, as well as the consistency and effectiveness of enforcement of existing regulations. The Bill before us is intended to prevent the granting of planning permission for subterranean development where certain specific conditions apply, as the noble Lord set out. However, as noble Lords, particularly my noble friend Lady Gardner, have said, we must recognise that subterranean developments can, where appropriate, provide much-needed additional family accommodation without leading to lasting visual effects from the development.

It is often when the works are in progress that the issue of concern to neighbours arises. The noble Lord, Lord Dubs, my noble friend Lady Gardner of Parkes and the noble Earl, Lord Lytton, pointed that out. Clearly, the public expect effective and responsible management of developments and swift action when things go wrong. My noble friend Lord Marlesford mentioned people drilling through his wall, so I apologise for not mentioning him before.

Existing legislation already provides for that, and local authorities have a wide range of powers under the statutory nuisance regime set out in the Environmental Protection Act 1990.  I hope any other noble Lords who have problems in this area will contact the local authorities and, should they need to refer to me, I would be very pleased to hear—or, rather, not very pleased to hear—of any particular problems arising. Used correctly, I think they can address some of the problems that we are considering today.

Local authorities can adopt local planning policies by which planning applications for basement developments will be determined, reflecting the specific priorities of the area. This would allow for consideration of the impact of the proposed development. On comments made by my noble friend Lady Gardner of Parkes, they can condition individual planning consents to restrict hours of working and limit noise and disruption. They can also publish—and they should publish—codes of conduct for responsible contractors. Local planning authorities are required to undertake a formal period of public consultation prior to deciding a planning application, which anyone can respond to, in particular those who may be directly affected by the proposal. My noble friend Lord Marlesford referred to the Christmas period—and other noble Lords raised it as an issue—by which developers sneak in planning applications, hoping that they will not be noticed.

As for the time for consultation under party wall issues, under the Party Wall etc. Act, building owners must serve notice on adjoining owners of at least one month before the work begins. Again, the owners have 14 days to reply; if a reply is not received, a dispute is deemed to have arisen, and surveyors will need to be appointed to draw up an award. The period for making comments on a planning application is not and should not be less than 21 days.

On flood risks, the National Planning Policy Framework sets out strict tests to protect people and property from flooding which all local planning authorities are expected to follow. This states that inappropriate development in areas at risk of flooding should be avoided. Planning practice guidance supporting the framework is clear that basement dwellings should be classified as highly vulnerable development in terms of flood risk; as such, they are inappropriate and should not be permitted in areas with a high probability of flooding, and allowed only exceptionally in areas with a medium probability of flooding. When nationally set permitted development rights apply, we have ensured there are powers for local authorities to be able to remove them, through the making of an Article 4 direction, with reasonable limits on compensation liability. This brings development under the local authority’s control. When planning permission is granted, local authorities can condition consents to restrict hours of working and limit noise and disruption to neighbours. In addition, they can address noise and other potential nuisance from construction sites. A number of noble Lords brought that up.

The Control of Pollution Act 1974 ensures that local authorities can enforce on matters such as equipment type—that has been brought up today—hours of working, and acceptable noise levels, in accordance with a code of conduct approved by the Secretary of State for the Environment, Food and Rural Affairs. Similarly, local authority environmental health departments are able to act, under the statutory nuisance regime set out in the Environmental Protection Act 1990, when there is excessive noise and other nuisance.

The Party Wall etc. Act 1996 applies to most basement developments. In such cases where a dispute arises, it is important that a detailed and thorough party wall agreement between a building owner and a neighbour is prepared, to ensure that all parties are clear on the detail of the work being carried out, the time and manner of executing any work and the arrangements for resolving any disputes, including compensation in some cases. The noble Lord, Lord Selsdon, asked about updated guidance. We updated our guidance on the Party Wall etc. Act in January 2015  to make it easier to use and to provide additional information on the role of surveyors and on matters to take into account in making a party wall agreement. That was the second update of the guidance. The Basement Information Centre has also published guidance on basement developments.

Once development is under way, all works need to comply with the Building Regulations 2010 and relevant health and safety at work legislation. Work on basements also needs to be carried out in accordance with the Construction (Design and Management) Regulations 2015. Buildings that become structurally unsafe while building work is being carried out can be dealt with under the provisions in the Building Act 1984, which allows local authorities to act where there are dangerous buildings.

The Health and Safety Executive’s guide for small builders on safety issues during basement work, which was published in 2012, will also help ensure excavation works are carried out safely. In addition, by carrying out safety checks at sites where works are under way, the HSE continues to ensure that any breaches of the legislation are identified and quickly acted on. Many local authorities, such as Kensington and Chelsea, which has been mentioned, produce guides or supplementary planning documents on basement development to ensure that householders and their neighbours understand the processes and consents required for basement development. This will be complemented by our work with the Basement Information Centre to augment the guidance it provides about the construction of basements to cover the concerns that have been raised about them.

Some very specific questions were asked. I will attempt to answer them. The noble Lord, Lord Dubs, asked whether basement extensions can be carried out under permitted development rights. They can; a recent court hearing found that. The General Permitted Development Order includes permitted development rights for house extensions within specific parameters. It does not explicitly include basement development, but it is not excluded. The court cases have included basement development within the GPDO’s permitted development  rights for house extensions. Where such rights apply, a local authority can consult on removing the permitted development rights through issuing an Article 4 direction.

The noble Lord commented that the Party Wall etc. Act is not sufficient to cover damage caused by basement development, for example, cracked walls. Under the Party Wall etc. Act, a building owner must pay compensation to adjoining owners for any loss or damage caused by the works, but that would be between the two parties concerned.

The noble Earl, Lord Lytton, talked about structural weaknesses. Basement developments are required to meet the relevant requirements of the Building Regulations 2010. This means that the person in control of works will have to submit plans or give a notice to building control about the development to enable the works to be inspected by the local authority building control or a private sector approved inspector. The building inspector will have to be satisfied that the basement structure complies with the relevant requirements of the regulations.

The noble Lord, Lord Kennedy, brought up a number of issues that noble Lords raised but asked for a specific comment on whether permitted development made basement development worse. Permitted development covers lower-impact development, not the mega-basements that we are talking about, such as the Death Star one in Camden. Where local authorities are concerned, they can consider removing permitted development rights through an Article 4 direction.

The noble Lord also talked about developments where the money runs out before the work is finished. Under the Party Wall etc. Act, adjoining owners can request building owners to carry out work under the Act to make available such security as agreed, for example, insurance that would ensure that all the work would be done.

 

Baroness Gardner of Parkes

On that point, it is important to have on record that it is essential that the builder and the other party must both be recorded as being part of that policy. Where the claims have arisen, the builder has just said, “No, sorry, I’ll just go into liquidation”, and you have no right to claim on the policy. People should be aware of that.

 

Baroness Williams of Trafford

My noble friend makes a valid point. With that, I hope that what I have said offers reassurance to noble Lords that where there are particular issues regarding basement developments, there are already existing provisions through which they can be addressed. I conclude by thanking the noble Lord, Lord Dubs, and all other noble Lords who have taken part in this Second Reading debate.

 

Lord Dubs

My Lords, I am grateful to all Members of the House  who contributed to this debate. I must say that I thought I had done my homework quite well but I learned a lot about some of the issues from the comments that were made—which shows how useful it is to have a Second Reading.

Perhaps I could refer to one issue that I do not know how to handle. My noble friend Lord Kennedy on the Front Bench said that he thought a Committee of the Whole House was a blunt instrument—although those were not his words—and that a Grand Committee would be better for dealing with this sort of Bill. I am not sure that I have the powers to change anything; I am merely dealing with the bit of paper I was given. I think that he is right, but I will have to deal with that outside the Chamber.

I am moderately unhappy after this discussion. First, the noble Lord, Lord Selsdon, who has done a lot of work on this, still believes, if I am quoting him correctly, that a lot of this could be achieved by regulations. I am not totally clear from what the Minister said that regulations are quite the way forward, although if it were possible then of course it might deal with some of the difficulties.

I have known the noble Baroness, Lady Gardner, for a long time. We sat on opposite sides of the chamber when we were councillors in Westminster, so I am used to having little disagreements with her. I thank the noble Earl, Lord Lytton, who sent me the Kensington and Chelsea guidelines this morning, I have had a brief chance to look at them. I agree that the guidelines are very interesting. I am grateful to the noble Baroness for having mentioned them because they are certainly helpful, and I hope that other local authorities will take note.

I understand her argument that the smaller your house, the more you need to build a basement—I think that is what she said in relation to terraced housing. That is okay as far as it goes. The trouble is that the smaller your house, the more likely you are to disturb your neighbours and have a damaging effect on them, so it works both ways. I am also grateful to the noble Baroness for spotting a printing error, a typo. I feel embarrassed about that and can only apologise unreservedly.

I listened with great interest to the speech of the noble Earl, Lord Lytton. He certainly is an expert and I wish that I had had a couple of hours’ discussion with him before this debate. What he said bears a lot of thinking about. He referred to ground-water and to trying to improve provisions for local opposition, and I agree that they need to be spelled out in more detail. He was also very supportive in what he said about the structural difficulties of terraced housing. Not very far from where I live in Hammersmith there is a basement excavation going on, and I got some of my information from neighbours who told me how much they had suffered.

I was delighted with the contribution made by the noble Lord, Lord Marlesford. I thank him for the compliment that he paid me, but that is by the way. The experience that he described is exactly—to the letter—why I put this Bill forward. I could almost call it “the Marlesford Bill” because what he said and the accurate way he described it reflects what I have been told by people in a similar position. Unfortunately, local authorities have not always proved as helpful. The Kensington and Chelsea guidelines for local authorities set down ground rules that applicants should talk to neighbours and have a discussion with them to try and get agreement. That is pretty good stuff but local authorities do not do that, so in this respect Kensington and Chelsea is certainly ahead of the game.

Turning to the Minister, I had no idea that she lived in Primrose Hill, otherwise I would have been more circumspect. I did not for a moment assume that the house was hers. However, I hope that she is not too close to it, because if this proposal goes ahead, she will suffer.

The issue that I have not resolved in my mind is this. Unless Article 4 directions are easy and not too costly, it seems that we are still in the difficulty that where some basement excavations require planning permission, with all the safeguards that local authorities have the right to apply, covering hours of work, noise levels, and so on—although I am bound to say that if one shortens the hours of work, one extends the period of weeks or months when it goes on, so it is not a total benefit. But a lot of the concerns that I have expressed are about permitted developments, where local authorities have said, as they did in Wandsworth and to my friends in Hammersmith, that there is nothing they can do. Article 4 did not come into it; if Article 4 is simple and straightforward, that may be the answer, but if it is more difficult than that, I am afraid that it will not help much.

Lastly, as regards party wall agreements, the problem is that some of cracks develop after everything has been signed off. It can happen much later, possibly through ground-water and so on. So although party wall agreements may be fine within the period they cover, people who suffer damage to their properties may go on suffering it for a great deal longer.

May I bowl a fast one at the Minister? Could she arrange for some of us, before we get to Committee, to have a meeting with some of her officials to talk about this? Would she be agreeable to that?

 

Baroness Williams of Trafford

Yes, I would be very happy to meet the noble Lord and others who may be interested in this area.

 

Lord Dubs

I am sorry—I should have warned the Minister that I was going to ask her that question. However, that would be helpful, because some issues may be better resolved if some of us could have such a meeting than if we simply put down a series of amendments in Committee, which may not be a subtle enough way of doing it. Having said that, I hope that the House will give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.