Subterranean Development Bill [HL]

Earl of Lytton Excerpts

Friday 10th February 2012 Lords Chamber

[The Earl of Lytton]

My Lords, I welcome the Bill and commend the noble Lord, Lord Selsdon, on introducing it. I have some interests to declare. As noble Lords will recall, I took an allied piece of legislation, the Party Wall etc. Act 1996, through all its stages in this House. Now, as then, I am a practising chartered surveyor. My professional work includes issues to do with excavations and party walls, so I am afraid I stand before the House guilty as charged. I am also a member of the Pyramus & Thisbe Club, which was referred to by the noble Lord, Lord Selsdon, and a former chairman of both its national council and its Sussex branch. It is an organisation of professionals with a special interest in party wall and neighbour issues, notwithstanding the rather quaint name that it rejoices under. I am chairman of the professional panel of the Royal Institution of Chartered Surveyors that is concerned with neighbour issues—that is, rights of light, party walls, high hedges, boundaries and access rights. Therefore, I have some insight into that. I had the privilege of being part of the professional team that assisted the noble Lord, Lord Selsdon, in drafting the Bill and am glad to have had some input.

The drive for deep excavations is a product of high property values, high transaction costs, planning restrictions and scarce space—usually but not always affecting urban sites. In such areas, people build up, as the noble Baroness, Lady Gardner of Parkes, has said, convert roof voids, build on at the rear and, having exhausted all these options, dig down to gain extra floor space. Although these are partly regulated by the Party Wall etc. Act 1996, it does not currently provide a complete answer. Just as I explained to the House in 1996 the problems of inadequately regulated loft conversion and other activities affecting party walls, I now do so again in the context of deep excavations. The structural consequences are just as serious and the financial ones potentially huge.

There are several issues arising from deep excavations, especially in densely built-up environments. First, the public interest in the urban substrata is often not adequately addressed and important factors can be overlooked. Secondly, there are particular risks for subsoil support to neighbouring properties, as we have heard. Often, where damage occurs, there are inadequate safeguards in terms of insurance cover, warranties or security of expenses to protect the interests of innocent neighbours. Some of the damage to neighbouring property can be very severe and remediation costly. Often, the only remedy may be protracted and expensive court proceedings. These risks are not sufficiently internalised by developers in that if the contractor goes bust or the property owner carrying out the work becomes insolvent, neighbours can be left with the adjacent blight of an unfinished and possibly unsafe hole in the ground, with no recourse and no ability to enter land and remediate themselves.

Where serial basement construction is carried out in an area, with a number of successive schemes in different properties, residents and businesses can suffer prolonged periods of unreasonable inconvenience. Any development risks causing some inconvenience, and disamenity is, to some extent, a fact of urban life. Certainly, one would not want to fetter that unduly. However, it is necessary to assess the point at which it becomes unreasonable. There certainly are such circumstances.

Local authorities may not have sufficient controls. We have heard about health and safety but it may also be a case of permitted development, as was pointed out by the noble Baroness, Lady Gardner of Parkes. Building regulations approval can be outsourced to a separate commercial entity. These factors can collectively sometimes leave the wider community interest unprotected. Wider adoption of a code of practice would go a long way to help this. Although I may be accused of self-interest, I have to observe that some projects are inadequately designed and ineffectively supervised.

This should not be seen as an anti-development Bill. It is in the interests of the best use of scarce urban land that it is optimised and the conditions applied to that should not be disproportionate. Nor is it designed to control the enlargement of houses on a premise that eventually there will be no smaller and more affordable ones left. That may be a complaint but this Bill should not be used to address it. It certainly should not provide for private rights of veto or entitlement to compensation for inconvenience that in the urban context may be a simple fact of life. However, the Bill will pave the way for stiffer controls to ensure that the attendant risks to the interests of society and of neighbours and the potential for excessive risk-taking and inconvenience caused by development are addressed by the person wishing to excavate. The Bill provides for wider-ranging notification than the Party Wall etc. Act, giving neighbours better advance notice. However, I appreciate from the comment made by the noble Lord, Lord Mancroft, that it does not give them a longer period of notice. That point may need to be looked at.

The Bill will enable works to be suspended in certain instances, which is welcome. It will make more overt the rather knotty problem of the provision for security for expenses and thus, I hope, provide greater neighbour protection. I hope that this can be looked at in much more detail so that it is simplified. The Bill will also clarify liabilities. I welcome the idea of producing a code of practice to ensure better administration, and particularly the suggestion that this should be administered by competent professionals.

All these are highly commendable aims. I welcome them in broad principle and so do the majority of practitioners to whom I have spoken. The Bill is not perfect and there are some technical issues of detail and lack of clarity that need to be sorted out. We can deal with these at a later stage. The Bill complements existing party wall legislation, which is considered to work acceptably well. In fact, many of the aspirations in the Bill could be dealt with under revised party wall legislation, but I understand the reasons why the noble Lord, Lord Selsdon, has approached this as a free-standing Bill—he was right to do so.

I trust that, in answering, the Minister will accept that there is an important issue to be addressed. I sincerely hope that the aspirations behind this Bill will reach the statute book in some shape or form. If I can be of any assistance in discussions about achieving that I should be glad to do so.