Planning (Subterranean Development) Bill [HL]

Earl of Lytton Excerpts

Friday 20th November 2015 Lords Chamber

[The Earl of Lytton (CB)]

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 Kensington 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 fallback 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.