Subterranean Development Bill [HL]

Baroness Hanham Excerpts

Friday 10th February 2012 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)]

My Lords, I would like to start by adding my appreciation to my noble friend Lord Selsdon for introducing this Bill to the House. His commitment to this difficult issue is to be applauded. I am pleased to have the opportunity to respond to the debate today and to assure noble Lords that I have listened very carefully to the views that they have expressed.

I fully understand that the issue of subterranean development is one which excites anyone who is affected by it. It involves many aspects of planning and regulatory controls, particularly during the construction process. Those include, of course, noise and general disturbance, as well as issues about the consistency and effectiveness of enforcement. All those issues have been raised this morning. Noble Lords will be aware—indeed, their attention has been drawn to it—that for some years I sat on the planning committee of the Royal Borough of Kensington and Chelsea. At that time, I was often taken aback by the scale of the new basement developments that were being proposed. They were frequently to be used as additional accommodation, but much more often for swimming pools, gyms and home cinemas, involving extensive excavation. I know that it is those types of basement extensions that are of great concern but most of them will, of course, require planning permission.

The noble Baroness, Lady Gardner, drew attention to the fact that the Royal Borough of Kensington and Chelsea has its own guidance. Indeed, we just heard that Hammersmith and Fulham also have theirs. It is a requirement, at least from the Royal Borough of Kensington and Chelsea, that when planning permission is required the application is accompanied by a series of reports from engineers and hydrologists to ensure that the excavations can be safely carried out. It can be done and is already being done. I take the concerns most seriously and do not underestimate the disturbance and distress that subterranean development can cause. I know that this is a particular problem in the four central London boroughs—Hammersmith and Fulham, Westminster, Kensington and Chelsea, and Camden, where this type of development is most prevalent, but I full accept that this is a creeping problem and is bound to appear elsewhere.

Noble Lords will recall that during our consideration of the Localism Bill, I committed to explore with representatives of those affected in these boroughs how we could make the provisions that already exist work better. I am very grateful to those noble Lords, including the noble Earl, Lord Lytton, and residents societies who have worked with me on this and, of course, the noble Lord, Lord Selsdon. We have met on a number of occasions to consider their concerns and possible solutions, and my officials have been following up on commitments that we have made. Just last week I had a very productive meeting with Members of Parliament of the boroughs in London that are most adversely affected. The Member representing North Kensington, Karen Buck, and Mark Field generated a debate in the other place. They were accompanied by residents who had personal experience to share and solutions to propose. Such discussions will continue as we strive to ensure that all those with the power to act do so in the best interests of those experiencing the greatest problems. As part of this work, I intend soon to convene a meeting with the London boroughs most affected to see whether we can find a blueprint for a common code of practice and how they can support each other in this and in disseminating good practice.

It is also true that local plans and neighbourhood planning will be able to deal with this issue. It is extremely important that this matter is taken up in that regard. I would like to take this opportunity to pay particular tribute to the local residents groups. They have worked tirelessly across neighbourhoods to ginger-up support from developers and local authorities to try to prod them to establish considerate development. I was interested to hear from the noble Lord, Lord Rodgers, that Highgate has now joined in. I shall make a note of that.

Residents associations are perfectly realistic in recognising that subterranean development will happen, and that in most cases, when basement work is complete, there are no visual impacts. But, as noble Lords said, their concern is that there may be many months during the construction period when neighbours can be left at risk of noise, disturbance, and potential damage to their properties, and they are frustrated by their impotence to deal with it. We recognise that neighbours and local residents are right to expect effective and responsible management of development and swift action when things do not go the way they should. Legislation already provides for most of the solutions to these problems if it can be, and is, used in the right way.

The Bill’s provisions for a new consenting process for subterranean developments in many ways replicates the requirements of the existing planning system. When permission is required, proposed development can be assessed against locally agreed planning policies that should reflect the priorities of the area. Importantly, conditions can be applied by the council regarding the control of the development. Where permitted development rights are considered to apply, the local authority can, by making an Article 4 direction, as has been already suggested, ensure that they can also bring such development under their control. I hear what my noble friend Lord True says, and I have heard it said, that Article 4 is not always an easy thing to do, or the possibilities of compensation arising from it. The Article 4 directions have been made much easier in recent times for local councils to apply and for the restriction on the compensation that can be sought.

The Bill sets out the information which a developer must submit as part of the new consenting process. I am pleased to reassure this House that developers can already be required to submit much of this information as part of the planning application process. Similarly the Bill replicates the existing requirements to consult neighbours and other interested parties. The provisions in the Bill for consultation between the parties and the resolution of disputes serve the same purpose as the Party Wall etc. Act, which already applies to most subterranean development work, and the new requirements under the Localism Act for any developers to consult neighbours in the local community before undertaking work. That should ensure that a permitted development does not come as a surprise to the adjoining neighbours. It is recognised that a detailed and strong party wall agreement between the building owner and neighbours is an essential measure. That should 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. I hope that the noble Earl, Lord Lytton, will agree with me. If he does not, we need to look at it. Compensation is something that can be negotiated. It is equally important that such agreements are complied with and that those in breach can be held accountable.

I am pleased to have the opportunity to discuss with the Royal Institute of Chartered Surveyors its experience of party-wall agreements. The noble Earl, Lord Caithness, has already done so and the noble Earl, Lord Lytton, has clearly been involved in what we have been talking about. I can say to them both that we will certainly explore further the issues of bonds and insurance, although I fear that this will need primary legislation and time may not be available. We need to see whether there is a clever way of dealing with this.

I hope that I have indicated that rather than creating new powers, we need to see that the existing ones can be strengthened or made better known. For example, the role of building control in inspecting the development to ensure that it complies with the performance standards set out in the Building Regulations is really important. Similarly the environmental health departments should be ready to act under the statutory nuisance regime set out in the Environmental Protection Act 1990, when there is excess noise, dust and other nuisance. The Control of Pollution Act 1974 also allows councils to enforce on matters like equipment, hours of working and noise levels, in accordance with a code of conduct approved by the Secretary of State for the Environment, Food and Rural Affairs. Finally, the safety of a building can be ensured by authorities under the provisions in the Building Act 1984 which allows local authorities to take action in respect of a dangerous structure.

These provisions are designed to provide protection against the adverse impacts of development, including subterranean development. However, they will be useless if local residents do not know about developments, or how to access help from appropriate sources. It is therefore essential that we find a way not only to disseminate the information but to have it easily available with good contact details. Nobody wants to be fishing around, and be passed from pillar to post, when they believe that enforcement action is required.

It is clear that there are regulations and legislation that local authorities can enforce. There is legal if not totally adequate redress under the party wall Acts, and it is essential to impress on those who represent the interests of landowners that they must act responsibly. Local provisions and protocols must ensure that those who carry out subterranean development, whether they do so with or without planning permission, are aware of their responsibilities to the local community, and of the consequences of failing to take these responsibilities seriously. I have heard noble Lords say this morning that in many cases this is not wholly effective, and we will need to look further into it. Development from which some people take benefit must not unreasonably affect others.

As the noble Lord, Lord McKenzie, said, it is consistent with the theme of localism that local authorities should produce their own guidance and should offer other services to cascade information to ensure that developers and neighbours are alerted to the controls that exist and to the means by which they can be accessed. I have already spoken of some of the work that we in central government are doing to try to ensure that the existing laws and regulations are recognised. We are also looking to see how guidance from organisations such as the Royal Institute of Chartered Surveyors may be harnessed and disseminated. This will be complemented by our work with other organisations that have an interest in the construction of basements, to cover the concerns that have been raised. We will also review the party wall Acts to see if they need to be strengthened, and the guidance that the department issues.

I hope I have made it clear that further legislative measures are unnecessary. However, we must find a way to ensure that all the issues that have been raised in the Bill are taken into account, to see where legislation may need to be updated. Building Regulations are going through scrutiny at the moment. The Royal Institute of Chartered Surveyors may want to respond to the consultation.

I end by thanking my noble friend Lord Selsdon for introducing the Bill, and noble Lords who took part in the debate. I hope that the discussion today will serve to highlight both the problem and possible solutions. I appreciate that there will be a Committee on the Bill. At present, the Government will not be able to support the Bill into legislation, but we are committed to continuing to help local authorities and residents find an acceptable way of going forward.