Planning (Subterranean Development) Bill [HL]

Baroness Williams of Trafford Excerpts

Friday 20th November 2015 Lords Chamber

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

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 megabasements 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.