Subterranean Development Bill [HL]

Lord McKenzie of Luton Excerpts

Friday 10th February 2012 Lords Chamber

[Lord McKenzie of Luton]

My Lords, this has been an exceptionally well informed Second Reading debate on a Bill which seeks to address an issue of increasing significance, especially but not exclusively for parts of London. The noble Lord, Lord Selsdon, is to be congratulated on bringing it forward and on doing so in a characteristically entertaining and informative presentation to us. He has clearly been supported in detail by a number of noble Lords with expertise, including the noble Earl, Lord Lytton, not to mention Pyramus & Thisbe. A number of personal experiences have been expressed in the debate and I think that they add to the importance and significance of the subject.

For me, the extent to which subterranean development creates difficulties began to emerge during our consideration of the then Localism Bill, so in part we have some sense of what the Minister might say in response to today’s Second Reading. We should also be grateful for a very helpful briefing from the Library, which included the record of the recent debate in the other place referred to by the noble Lord, Lord Northbrook. In her contribution, my honourable friend Karen Buck gave some data on the scale of subterranean development in a part of London that are worth repeating. She said:

“The St John’s Wood Society has identified no fewer than 86 basement applications in that corner of NW8 between October 2010 and September 2011, plus 10 repeat excavations; Hamilton Terrace alone has 13 applications”.—[Official Report, Commons, 8/11/11; col. 65WH.]

The problems with subterranean development have been well aired in today’s debate. Such developments, as we know, are particularly driven by high property values—hence the focus on parts of London, particularly inner-city London. Generally the problem is not only the end result of expanded accommodation situated underground, even though the footprint may extend way beyond the footprint of the house itself, although of course that can impact on the watercourses and other substrata facilities. Often the key problem is the process of development: the vast excavation works; the heavy trailer traffic; damage to party walls; and the sustained and prolonged noise and pollution. We have seen neighbourhoods blighted by a whole succession of such developments.

An area which has been touched on by some noble Lords and which is of particular concern arises in connection with health and safety, and I am pleased to see the provision in the second part of the noble Lord’s Bill. The data have already been given but our briefing pack includes the information that recent HSE inspections showed that a third of basement construction sites were found to be unsafe, and more than half of the prohibition notices served dealt with the risks of workers falling from height either into unfenced excavations or through unprotected floor openings. As we have heard, there have been two fatalities during the past 12 months resulting from basement construction projects. This is, frankly, unacceptable.

From my brief discussions with the HSE during the passage of the then Localism Bill, it would seem that the legislation in this respect is considered to be fit for purpose, as are the 2007 CDM regulations. It is their application that needs attention. Of course, responsibility sits not just with the contractor but with the client. Sadly, I am bound to say, all too often we hear from Ministers that health and safety is all about unnecessary red tape. It would help if we heard a little more about the need for rigorous enforcement and compliance.

The Bill before us contains a number of very reasonable propositions but some, in our view, are not. Requiring consultation with the Secretary of State for the deeper proposed developments seems to run contrary to the localism agenda. We are also not clear about the purpose of requiring HMRC to determine the current value—presumably pre-subterranean development—of the property once approval for the development has been granted. I am not sure whether the noble Lord is proposing that we tax the uplift that arises. That is an interesting proposition.

We have the benefit of the Government’s response to a variety of amendments to the then Localism Bill on subterranean development, and these amendments are now very much reflected in the Bill before us. The tenor of the response was that additional legislation is unnecessary. I do not believe the Government said that there is no role for government in it but that what is there is broadly fit for purpose. I understood that the proposition was that, one way or another, the existing provisions are sufficient. If this remains the Government’s position, it would be good to hear from the Minister today why they are not more forcefully or routinely applied.

Why, in the Minister’s view, is more use not made of Article 4 directions in relation to permitted development rights, construction method statements, requests for impact statements—for example, on the local water table—wider consultation requirements with neighbouring properties, and the issuance of guidance? What assessment have the Government made of the extent to which these opportunities are taken up? To what extent is it considered that the willingness of local planning authorities to constrain some of the subterranean development is related to the involvement of those with deep pockets, as well as deep basements? Finally, as we await the NPPF, how do the Government consider the presumption in favour of development plays out in these circumstances?

The Bill has good intent. It may not be the best way forward in all respects but its examination may help to identify improvements, such as building regulation revision, that can be made to how things operate today. As the noble Lord, Lord Jenkin, said, this is an issue for today, despite the very interesting historical references that we have heard.