Basement Developments

Robert Neill Excerpts

Tuesday 8th November 2011 Westminster Hall

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

It is a pleasure to see you in the Chair, Mr Sheridan. I congratulate the hon. Member for Westminster North (Ms Buck) on securing the debate and I acknowledge the very constructive interventions and support that she has had from my hon. Friend the Member for Cities of London and Westminster (Mark Field).

This is an important debate about planning and basement development. It raises important issues, not for the first time in relation to planning, about balancing sustainable development with individual rights, and I will happily do my best to respond. The issues have been well set out by the hon. Lady. She is particularly concerned about problems arising from home owners’ wishes to increase the size and value of their home by extending the property through the excavation of new basement rooms. I recognise that there can be a problem with such development. It tends to occur in a fairly limited geographical area, predominantly in parts of central London, as we have heard. I am also aware that the cause for concern is often not the completed basement, but the disruption that can be caused during the construction phase. That is precisely what was graphically described by the hon. Lady.

This is quite a complex issue, because it covers many aspects of both the planning process and the construction process, including concerns about noise and general disturbance and issues about the consistency and effectiveness of enforcement. There is not necessarily, therefore, a single silver bullet that can deal with the problem, but there are existing powers and good practice available to tackle it, and I will endeavour to set those out.

It is important to bear it in mind that the planning system is designed to consider the impact of a development once complete, and of course it is often the case that subterranean developments, once complete, have little visual impact. The system is essentially about land use and visual impacts. What we are talking about today is generally an extension to an existing acceptable land use—a dwelling house. In the end, its visible impact will be limited, but I do understand that that does not help the people experiencing the disturbance during its construction. However, although there are some limitations, people often regard the planning system as the most reliable route for alerting a local community that a development is proposed—we are all familiar with the requirement to put up notices and so on—which can then act as a trigger for wider engagement on how any development will take place.

It might be helpful if I describe how the planning system deals with subterranean developments and the controls available. A planning application is likely to be necessary for a substantial new and deep basement, but as I think the hon. Lady conceded, that will depend on the size of the existing property. It generally depends on the size of the extension in relation to the original size of the house, as is well known. None the less, where permitted development rights grant planning permission without the need for an application, a local planning authority can consult on using the powers available to it to ensure that the proposals are brought back under its control through the planning process. In other words, it is possible to issue an article 4 direction—that is article 4 of the Town and Country Planning (General Permitted Development) Order 1995—which removes the permitted development rights in relation to the proposed development. In those circumstances, an application must be made in the normal way.

Local authorities are already required to consult neighbours and other interested parties on planning applications, and we already advocate pre-application engagement between applicants and neighbours. Local authorities can use locally prepared planning policies to set the standards by which planning applications for subterranean development will be assessed. In addition, local authorities are able to produce guidance that can outline matters such as submission requirements and the standards that development will need to achieve. Our proposals to introduce neighbourhood planning provide further opportunities to fine-tune the detail to reflect what may be particular concerns in particular neighbourhoods of London or other major cities. Local authorities can already require applicants to ensure that their planning applications are accompanied by a construction method statement and require such a statement to be prepared and signed off by a chartered civil or structural engineer. Those methods can deal with some of the matters raised.

[Ms Buck]

Perhaps the Minister is coming to this point, but one of the grave concerns of residents in places such as St John’s Wood, Chelsea and so on is that, although each individual development can be close to unbearable, the compounded effect of, say, 13 developments in one street in St John’s Wood is absolutely intolerable. What powers does the local authority have to consider the compounded effect of numerous developments, rather than each individual one on its merits?

[Robert Neill]

As a matter of planning law, local authorities can have regard to cumulative impacts and they can attach planning conditions to the permissions to ensure that developments meet the standards set for such development. Of course, they have to consider each of those on a case-by-case basis, but it is well established in the case law that cumulative impacts can, in the proper circumstances, be a material planning consideration.

That is the position as far as planning law is concerned. I will also consider building control, because the two are closely interlinked. It is likely that subterranean development work would be required to meet the Building Regulations 2010. Therefore the person in control of the works—from what I have heard, I imagine that that would be the contractor in these cases—will either have to submit plans or give a notice to the local authority building control department about the development. That enables the works to be inspected by a building inspector on behalf of the local authority. The building inspector will have to be satisfied that the basement structure complies with the relevant requirements. It is fair to say that much of the building regulations concentrates on the safety of those working on the site. I do not think that that is suggested as the primary issue in this case, but it is worth bearing in mind. The building regulations are also concerned with ensuring that nothing is done to impair the stability of the building during the construction process. Again, that can be a worry for neighbours.

Work would also need to be carried out in accordance with the Construction (Design and Management) Regulations 2007 and various other related health and safety measures. Regulation 31 of the 2007 regulations requires steps to be taken to ensure that an excavation is safe both for those within the building and for neighbours.

The noise and other sources of potential nuisance, such as dust and deposits, that we have heard about can be dealt with through the statutory nuisance regime set out in the Environmental Protection Act 1990. In addition, the specific issue of noise from construction sites can be dealt with through the powers in the Control of Pollution Act 1974.

[Mark Field]

The big concern that many of our residents have, whether this is on grounds of planning, building regulations or environmental protection, is that ultimately they are often up against an applicant who is incredibly wealthy—who has very deep pockets—and can bypass all of those. I am talking about the lack of the cumulative robustness that is required in this whole area to ensure that we do not have a David and Goliath situation between a developer wanting to drive ahead and, obviously, add great value to his property through substantial works along the lines that we have described, which are incredibly disruptive, and a local authority whose hands are tied behind its back because of what are obviously very inadequate protections or notional protections.

[Robert Neill]

I understand the point that my hon. Friend makes, but perhaps it is not entirely fair to say that the controls are inadequate. There is without doubt a fairly new challenge because of the technology and the type of building that we have only fairly recently seen. However, there are powers, if they are robustly enforced.

[Ms Buck]

rose—

[Robert Neill]

May I just make this point? The Control of Pollution Act 1974 enables issues such as the equipment type, the hours of working and acceptable noise levels to be stipulated, so there is a control there, if it is robustly enforced.

[Ms Buck]

I am grateful to the Minister for giving way; we are about to run out of time. Will he either mention briefly the scope for looking at the Party Wall etc. Act 1996 in particular, as per the proposals that the hon. Gentleman and I have outlined, or meet us separately, possibly with representatives of the local amenity societies, to consider what action might be available under that set of powers?

[Robert Neill]

Certainly. The 1996 Act was considered in relation to the Localism Bill. As time is short, perhaps I will write to the hon. Lady, setting out the views expressed in the other House. We can then consider the matter if she wishes to make further representations. I think that that is the fairest way to do justice to her and her constituents—