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Basement Developments

Volume 535: debated on Tuesday 8 November 2011

I am grateful for the opportunity to speak in this short debate. I am pleased that the hon. Member for Cities of London and Westminster (Mark Field) is also joining us. I know he has concerns about basement developments, too.

I have been conscious of the issue over the past year or two, having received constituency correspondence on it, and I was aware that the matter had been raised by amenity associations in various boroughs in central London. However, it was not until I accepted an invitation to see one of the larger basement developments in NW8 a couple of weeks ago that it really came home to me just what an extraordinary change we are seeing in some of our inner city communities.

I saw a basement excavation stretching between Hamilton terrace and the mews behind it in St John’s Wood. It seemed that the excavation was the size of an aircraft carrier—absolutely vast. It was far greater in scale than I had expected. Not only was this enormous excavation going on, but lorries that were turning into the mews to take away the soil were pounding away. There was noise and filth in the air. The small mews was already buckled by the pressure of the lorries coming into the street, which was not designed for the kind of traffic that was being imposed on it. It was vividly brought home to me how disruptive such basement developments are. They are an imposition on many residents in areas where they have become such a striking phenomenon over the past couple of years.

We all know that building works are a hazard of urban living. We live in a growing city. Wherever we live in London or other cities, at some stage we are likely to experience building works. It is right that we must endure some of this as our infrastructure is updated and as much-needed new housing development is fitted into our growing cities. However, if we look at some of the plans for basement developments that are now spreading all over inner London, we are not talking about infrastructure development or new house building. In many cases, basement developments—sometimes double basements going down two levels—stretch not just under the footprint of the house or even one or two thirds beyond the footprint of the building itself, but through an entire garden. Those gardens are sometimes substantial, because they are in our more prosperous neighbourhoods. Plans include underground cinemas, swimming pools, gymnasiums and gun rooms. Delightful as that may be for residents fortunate enough to live in such properties, it is hard to accuse those who object of restricting the necessary growth and infrastructure development of our city.

I agree with what the hon. Lady says. The Knightsbridge Association in my constituency, among others, has made it clear that it is not opposed in principle to the provision of basements beneath existing houses, but it is concerned about aspects of the design, construction and usage. What applies in the hon. Lady’s seat similarly applies in mine. We are dealing primarily with terraced houses. As in many other parts of London, they are 19th-century houses, built as terraces of varying widths and with a number of different storeys. They have proved remarkably adaptable over the past century to changing housing needs as well as changing tenure and household size. Does the hon. Lady share my view that in recent years almost unprecedented pressure has been brought to bear, along the lines that she has pointed out, to attach a bathroom to every bedroom and find space for home cinemas and gymnasiums at subterranean levels? That can cause real problems: it is not just the soil but the disruption to which she has already alluded.

I agree with everything that the hon. Gentleman, my neighbour, has outlined, and I will touch on a few of those points.

We know that, for the most part, basement developments are not opposed in principle, but their scale and the speed with which such major developments are now spreading over large parts of inner London is a major concern for neighbourhoods. I have already mentioned what I saw myself in terms of the scale of some of the building works and the disruption and damage that they do. The damage to neighbours, streets and pavements is uncompensated. It can become a burden on the local authority that has responsibility for mending pavements, or it can fall on residents in the case of some of the unadopted roads and mewses. None the less, the damage is not compensated in any way.

The sheer scale and number of basement developments means that the noise is incessant, even when builders keep within the considerate builders code—sometimes they do; sometimes they do not—because the works are so substantial and prolonged. As my neighbour, the hon. Member for Cities of London and Westminster, has said, many of the properties are terraced—substantial, certainly—so there is no buffer zone between the residential properties affected.

I heard a sad story of one resident in St John’s Wood who is suffering from cancer. Living in the middle of two properties, they had to endure the noise and nuisance of a major basement development on one side. They got through that particular nightmare—it is always difficult living next to building works—and then found that an application for a basement development had been made for the property on the other side.

Sir Hugh Cortazzi, a local resident who I am delighted to see has turned up to listen to this short debate, has been corresponding with me on this issue. He describes his experiences as follows:

“The excavation of the basement and garden at an adjoining property has been continuing since September last year and vast quantities of earth have been removed via trucks and skips. The pollution and noise are extremely disruptive but they will also cause damage to the environment, alter buildings in a conservation area and could have adverse effects on the water table and drainage in an area built on streams which already suffers from subsidence”.

An editorial in The Lion, the parish magazine of St Mark’s church, Hamilton terrace, added:

“The digging and tunnelling not only devastates existing gardens but damages the water balance and root systems in surrounding properties...hidden waterways have suddenly come to light, causing unexpected flooding...we must ask ourselves whether those with millions to spend should be allowed to endanger the quality of life for their neighbours by embarking on developments that could damage the area for years to come”.

Responses to the Westbourne neighbourhood survey included these findings:

“We have been through hell and beyond not with a basement development but steelbox frames underpinning our back extension against our wall—2 years of hell...and we cannot open our front door...We are about to be sent to an early grave—works are now being applied for next door on the other side”.

Last night, I received an e-mail from another constituent in Hamilton terrace. They asked whether I

“would also look at the gigantic building operations at…Hamilton terrace for which the application was for minor alterations. The actual operations are reaching out almost two thirds into the garden, and I have complained to WCC without receiving an acknowledgment or an answer. Last week when I was home briefly…I could not lock or unlock the basement door into the garden for the second time in two months because of the movements caused by the huge digging works…So for the second time in that period I had to call a carpenter to repair and adjust the door. On top of all that I have been suffering endless dirt and dust from the building works apart from the noise which makes serious work…during the day utterly impossible.”

Some solutions are in place. There is the issue of planning law, and it is vital that local authorities produce an annual public report, so that we are aware how many applications for this type of development have been approved. Could one further provision be a highway licence? We must ensure that the streets function normally, so where licences have already been issued—as in the cases to which the hon. Lady referred—it should be possible to bar further works for a period of time and stop the intense disruption that has taken place. Things such as skips and builders licences should be charged for by the day, just like a parking meter. That would provide a strong incentive to minimise the disruption to people’s lives, to which the hon. Lady referred.

I agree with the hon. Gentleman, and I will touch on those issues in a moment.

Westminster city council—the authority with which I am concerned, although I know that other inner-London authorities deal with similar issues—states in its policy guidance:

“The environmental impact of subterranean development also has potential to be significant and result in increased carbon emissions, due to additional requirements for lighting, ventilation and pumps. By limiting the extent of basement developments and requiring them to meet sustainable design standards, negative environmental impacts may be reduced.”

We know, however, that due to a degree of uncertainty about current planning guidance, some local authorities—Westminster in this case—are anxious about their ability to block developments.

I have mentioned the devastating impact of some developments experienced by neighbours and local communities, but we must also remember the sheer scale of some of the work—that took me by surprise, and I am indebted to the work of the St John’s Wood Society, South East Bayswater Residents Association and others, for their mapping of such developments. 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.

In the Westbourne Neighbourhood Association survey, to which I have already referred, 47 local residents said that their area contained local developments of the kind under discussion. When asked, “Did party wall agreements broadly cover your building repair costs?” three quarters answered no. There was overwhelming support for greater legislative protection, an enforceable code of practice and greater powers for local authorities to block or restrict developments where necessary.

Does the hon. Lady agree with the Knightsbridge Association, which wrote to me before the debate? Its view is that

“provision should be made in party wall agreements for a bond to be put up by the developer or an insurance taken out to ensure that neighbours are able to obtain redress where problems are caused.”

As the hon. Lady is aware, all too often, the offending party may not be a UK national, and it can be difficult for those who have lost out financially—often quite substantially—to secure the redress that they deserve.

That is a good point, which deserves to be explored, and I look forward to hearing the Minister’s response. Neighbours affected by such developments often find that work is done by companies or people who are not UK residents and that those who live at the property will not necessarily be there for a long time or are not in full-time occupation. People’s ability to obtain leverage during the building works, or redress afterwards, is limited.

The problem has increased over the past two or three years and is impacting negatively on local communities and individuals. Nobody seems able to protect residents affected by such developments, whether it is the local authority or organisations such as the Grosvenor or Cadogan estates, or the John Lyon’s Trust, which manages some of the properties in St John’s Wood conservation area. Such agencies do what they can by way of guidance and a voluntary code of conduct for subterranean development, but it is understandably difficult for them to act where the planning authority cannot. Everyone is keenly aware of the amounts of money behind these developments, which makes opposing them risky in the absence of clear Government guidance.

The previous Government amended the Town and Country Planning (General Permitted Development) Order 1995 in 2008, and removed the volume restriction that had previously limited home owners to developments that did not exceed a fixed percentage of their floor area. The 2008 guidance seemed to confirm that basement excavations should be permitted, although subject to conditions and restrictions intended to limit the impact on others. I am not sure, however, that the pace and scale of change was—or could have been—foreseen in 2008, and three years on, the system is obviously not working. If the legislative framework is inadequate, especially given the size and number of subterranean developments, what do the Government think can be done to rectify the situation?

I seek clarification on whether the current unsatisfactory situation results from a correct interpretation of the 2008 legislation, which may therefore require further amendment, or whether the legislation has been interpreted wrongly. In the latter case, can the issue be resolved by an additional consultation process to correct and restore the original intent of the measure? I believe that that point was raised with Ministers by representatives of the St John’s Wood Society and others, at a recent meeting, and it would be good to have an answer from the Minister.

If, however, the developments are based on a correct interpretation of the 2008 guidance, what options are now available? The hon. Gentleman mentioned proposals by the Knightsbridge Association and other amenity societies. I will not go into too much detail, but those proposals include the removal of permitted development rights to allow the implementation of stronger safeguards to protect neighbours and local neighbourhoods, and better guidance for inspectors at appeal. It is frequently felt that inspectors are not familiar with the conservation areas most affected, given the nature of central London where the basement developments are being built, and that they are not necessarily best placed to make their objections known. Other suggestions include updating the Party Wall etc. Act 1996 to allow more control over construction and compensation for residents of adjoining properties. That could include allowing bonds to be set up against the development. Existing building regulations could be reviewed to ensure that the interests of conservation areas are considered when assessing the development application.

Given the proposed amendments to the Localism Bill in the other place, it would be helpful to know what scope the Minister thinks has been provided for local authorities and residents to protect themselves against excessive subterranean developments and the combined impact of multiple developments in a small area. What can the Minister offer by way of stronger and clearer guidance to the small number of inner-London authorities where almost all such developments are taking place?

This is not nimbyism or an objection to new infrastructure or housing developments—indeed, the St John’s Wood Society played a constructive role in the future development of the King’s Troop barracks. It is, however, a response to a real and worsening problem that was probably unforeseeable only a few short years ago. Like Chelsea and Bayswater, St John’s Wood may be a largely prosperous area, but its residents have the same right as anyone else to be protected from unacceptable noise, nuisance and disruption that prevent them from the quiet enjoyment of their homes. We have a shared interest in protecting the urban environment and the character of our residential neighbourhoods, which contribute to making London the city that we love so much.

I thank the hon. Lady for an excellent speech. She will appreciate that we work on a bipartisan basis, putting the interests of our constituents first. She did not address this issue directly, but James Wright, chairman of the Belgravia Residents Association suggested, with some validity, that basements are often developed by non-resident, non-UK taxpayers, for the benefit of a single wealthy individual and at significant cost to the environment and community, as highlighted by the hon. Lady. Furthermore, extensive damage is caused to roads, and repairs are often paid for by the taxpayer, because the developer is not accountable for that. There are also concerns about the loss of viable gardens and mature trees because of basement developments, particularly those that go deeper than two storeys.

I think that I covered most of those points in my contribution, but the hon. Gentleman is right. Those living next to such developments should not have to suffer the disruption and upheaval that now takes place at a relentless pace, given the scale and number of developments under way. Residents, taxpayers and local authorities should not be expected to foot the bill for damage and disruption inflicted by such developments on a number of our neighbourhoods. Through available vehicles such as the Party Wall etc. Act 1996 or planning guidance, it is clearly time to say that something has gone wrong over the past two or three years and that firmer, stronger controls must be introduced to protect people’s interests.

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.

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?

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.

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.

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.

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.

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?

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—

Sitting adjourned without Question put (Standing Order No. 10(11)).