First of all, it is important to say that we acknowledge that people have a right in principle to develop their homes by way of extension, outwards, above or below, and that the current UK law supports them (overwhelmingly) in so doing. Where there is dispute or doubt about this right it is where such development impacts upon neighbours and their right to live in peace without their home being damaged in the process. Our aim is to find ways of reducing the worst aspects of the consequences of such development on neighbours both during the period of works and in their aftermath. Whilst all forms of house renovation creates some degree of noise and disruption for neighbours, and ‘reasonable’ levels of both are allowed under current legislation, the excavation of a basement is a form of development that far exceeds all other types of building work in two key ways – its impact on the ground & associated movement beyond the footprint of the house in question, and the unreasonable lengths of time it takes to create a basement compared to other extensions: a minimum of 18 months but ordinarily 2-3 years. A case in Barnes, currently in progress, is approaching its fourth year of works, and examples in other boroughs have lasted as long as seven years.
We would like to see our local authority, the London Borough of Richmond upon Thames (LBRuT) use what leverage it has in the planning process, namely the withholding and granting of permission, to place conditions on would-be basement owner-developers at the point of application that would significantly improve the protection of the unfortunate neighbours who live near or next to such an excavation. Once Planning Permission is granted neither residents nor the council have any meaningful sanctions to limit or penalise contractors for the damage or disruption they invariably cause. We believe it is possible to avoid damage and limit disruption (noise, dirt, dust, traffic obstruction etc) by measures taken before Planning Permission is granted, rather than merely react to it once it has begun. The onus of proof of damage should be shifted from the victims of damage and disturbance, to those who cause such damage and disturbance – the owner-developers, who have already made a mental calculation that two or three years of misery for neighbours is trumped by their need for an extra gym/store-room/cinema.
Barnes has a particular geology and hydrology. Different parts of the village vary in soil type and in their proximity to the banks of the tidal Thames, to Beverley Brook, or to subterranean water channels that may have been covered over or partially drained in the past 100 or so years but which continue to flow beneath our streets and homes. Parts of the village particularly those near the Common were once boggy marsh. Even ASUCplus, a trade organisation of the ‘underpinning’ industry, who publish a guide to excavating basements for their members, state in this guide that the two main soil types – cohesive soils (mud, clay) and non-cohesive soils (sand, gravel) – involve dramatically different challenges in manipulation and all but admit that digging successfully and safely in non-cohesive soils is potentially hazardous because such soil types are not ‘self-supporting’. Any gardener knows that digging down into a sandy, gravelly soil triggers a complete collapse of the sides of any hole and any moisture or water in that soil vastly exacerbates such collapse (try making a neat square box-hole with firm sides on a beach!). Much if not all of Barnes is standing on just such non-cohesive soil. Many geologists would advise against excavating basements in such terrain altogether. The Victorians were prolific basement-diggers throughout London, yet when they began the rapid terraced development of Barnes in the 1890s, they expressly avoided adding basements to new homes precisely because they understood the fragile nature of the ground. Moreover, any home-owner in Barnes with a garden will have witnessed first-hand how the ground is becoming year on year more waterlogged, that the water in the soil is increasing with what seems to be a rising water table, and along with this saturation comes instability for any new building work upon it or excavation into it. We believe that LBRuT Planning department does not grasp the significance of these facts, that most basement-digging contractors do not (or would rather not) grasp the significance of these facts, and that the high incidence of damage to neighbouring houses from basement excavations in Barnes is caused by the nature of the ground here and by the failure of developers and planners to respond to it with expertise and care.
Basement excavation as an issue for public concern and debate was until recent years restricted to sensational newspaper reports of massive oligarch-style ‘iceberg’ developments amongst the super-rich in Notting Hill and Belgravia. Thanks to rapid house price inflation, it is now an issue for all boroughs in the capital. There is not a home in Barnes now that is safe from a basement being dug next door. The proliferation of basements is causing alarm across London but other borough councils are further ahead of the curve in putting in place modern strategies to limit unnecessary damage and disruption whilst LBRuT is lagging behind with what can only be described as watered-down and unenforceable ‘guidelines’ for basement development. Partly this is historical, since house valuations have only soared in the borough to Central London levels in recent years, and also because until 2008 when the council’s Strategic Flood Risk Assessment was revised, basement excavation in Barnes was prohibited under Zone 3b (‘Functional Floodplain’) directives. Despite the fact no new flood defences have been erected since 2008, Environment Agency flood modelling in conjunction with the LBRuT’s Environment department deemed that Barnes should be re-classified as Zone 3a (‘High Probability’ Flood zone), thereby allowing basement developments (as a guide to the curve of proliferation, within 5 years, that is in 2013, 190 basement applications were made in the borough). Thus, it is possible for a large basement development and swimming pool to be granted permission this year at 42, Nassau Road, even though being only a few metres from the river flood wall it is designated as being in the ‘Indicative Rapid Inundation Zone’ but not in Zone 3b, the ‘Functional Floodplain’. How it is thought that – in the event of a breaching of the Barnes Terrace flood wall – this permitted basement would fill entirely with dirty river water within perhaps five minutes of such a breach yet be ‘safe’ either for its occupants or its neighbours would surely be a mystery to most rational thinkers. Likewise, the ‘solution’ to the high levels of groundwater to be found under virtually every house in Barnes when a basement is dug into such saturated soil, is to install 24-hour pumps in the developed house that will (a) make their engine noise for all time, no matter the disturbance and aggravation to neighbours, and (b) set of warning alarms at all times of the day or night, often to alert proprietors who may not even be at the house at the time. This is water management worthy of the imagination of Lewis Carroll.
At the heart of much of the disquiet about subterranean development is a feeling of frustration and powerlessness at the inherent democratic deficit in the planning procedure. How is it fair or equitable that the grandiose development plans of just one home-owner who will not live at the address whilst works are underway and who may not even live there once the works are completed if the project is speculative, to overrule the objections and peaceful living of a much larger number of neighbours? Why do the livelihoods of neighbours who work from home, or the peace and quiet of shift workers sleeping during the day, or the retired, or the infirm or the very young, count for nothing against the expansionist building plans of one owner-developer? Isn’t the very point of tiers of governance in civilised societies – councils, MPs, London-wide bodies, Parliament, government departments and so on, to protect people from the excessive demands of individuals that impact negatively upon others? We believe that current laws and council planning procedures are not at all impartial but fall down heavily in favour of the developing party, and that this imbalance needs to be redressed urgently.
A good example of this imbalance in practice is the matter of planning conditions – hours of working, duration of building sequence, blocking of roads, reduction of parking spaces, noise, dirt, dust, vermin infestations, interruption of power etc – and their depressingly widespread violation.
The awful experience of those who have lived next to or nearby such developments is a matter of shame not just for the contractors and owner-developers responsible but also for the LBRuT’s Planning, Enforcement and Environment departments for not supervising and penalising such violations as they occur, nor, at Planning Application stage, being tougher in imposing meaningful conditions and ways of sanctioning violations thereafter. The Council have no mechanism available to them to place a restriction on the overall duration of works: why not? What interpretation of the law can be so loose that a noisy, dirty, three or four year building project in a private terraced house is deemed to be ‘reasonable’? If drilling or pile-driving, to take just one example, takes place after 1pm on a Saturday, no enforcement official is available to police such a violation until office hours on Monday. If, as has been suggested, the council’s enforcement team is so over-stretched that it simply cannot keep up with the level of violations nor penalise offending parties, why are stricter, more onerous sanctions not put in place in the first instance, or – heaven forfend – permissions refused until such time as the council can enforce its own rules?
A series of Health & Safety spot-checks on basement excavations in West London performed in March revealed staggering results. As reported in the Guardian, “In a two-day blitz, the Health and Safety Executive sent inspectors to 127 homes in Hammersmith and Fulham, Kensington and Chelsea and parts of Westminster. At two construction sites, conditions were so dangerous that inspectors closed them down immediately. Enforcement action was taken at 62 of the sites – an overall rate of 48% – with 44 prohibition notices served requiring dangerous practices to stop immediately, 12 improvement notices served requiring safety improvements to be made and 63 notifications of contravention served identifying material breaches.”
This evidence is truly appalling, as are the first-hand reports of those who have suffered through a neighbour’s basement excavation and yet, in every single case of these shocking and routine violations a smart architect, engineer or owner-developer would have presented themselves to the Council concerned at Planning Application hearings as professional, reasonable, concerned about the potential impact on neighbours, giving the usual promises about observing planning conditions and respecting the neighbourhood, ticking the boxes and satisfying council regulations, filling in forms claiming to honour such regulations and to protect the environment in which they intend to operate. Every developer makes these easy assurances of ‘best practice’ and the overwhelming evidence is that such assurances are utterly meaningless when the work begins in earnest. The only agency available to protect neighbourhoods from this level of disruption and negligence is the local council and the only time the council has a meaningful leverage over developers is at the point when the latter are seeking planning permission. We believe the LBRuT is failing in its duty to protect residents in its current planning procedures.
Residents who live directly adjacent to a basement development are obliged to agree a Party Wall Agreement with the owner-developers. The PWA was designed at a time before subterranean development was common and is only intended to facilitate compensation for damage, rather than as a mechanism for preventing damage in the first place. It is notoriously weak in protecting the victims of damage, framed as it was originally to allow development to go ahead and the process of extracting compensation and arbitration through it is frustratingly slow and lengthy. Again, the onus of proof is on the victims of damage rather than on its perpetrators and the typically very wealthy owner-developers of basements are able to use the PWA to bully into submission their exhausted, stressed neighbours over long periods of dispute.
The PWA, despite its considerable failings, is at least a legal basis on which to pursue some kind of compensation, for immediate neighbours. The digging-out of a basement and the movement of ground it can precipitate in certain soil conditions, however, often affects houses nearby that are not protected by the PWA. A basement excavation at no. 14 Ranelagh Avenue in 2008-9 permitted by the Council so disturbed the ground that no fewer than three other houses were damaged, only one of which was the subject of a PWA. Repairs amounting to thousands of pounds had to be made to these neighbouring homes, not one penny of which was offered by the owner-developer in compensation, safe in the knowledge that no law or condition of planning permission obliged him to do so. For home owners in the near vicinity of subterranean developments who are not signatories of a compulsory PWA, the LBRuT’s Planning Application procedure is the only protection available, and it is so far a protection that has rarely, if ever, been exercised. This is negligent and unacceptable.
All councils are legally bound (that is, they have a ‘positive obligation’) under the European Convention on Human Rights (ECHR, Article 1, Protocol 1) and Section 6 of the Human Rights Act 1998 to take proportionate & necessary steps to ensure that when granting permission to a building project they protect neighbouring properties from avoidable damage. We believe LBRuT is not fulfilling this legal obligation.
These, then, are the objectives of the Safer Basements Group:
We call on the LBRuT to draw up new core strategies with respect to basement applications in line with tougher Camden & Royal Borough of Kensington & Chelsea protocols, in particular to require a Basement Impact Assessment before Planning Consent is given, as is the case in those boroughs. The onus on the developing party should be to prove that a basement will not damage neighbouring homes and permission should be withheld until such time as definitive assurances, through proper, detailed testing, modelling and expert engineering solutions, can be given.
We ask the LBRuT to allow disruption, nuisance, disturbance of neighbours in the extended period of a basement development as a valid reason for objection to Planning Applications (as is the case, for example, in the RBK&C).
We request that the LBRuT Planning Department acknowledge that a basement excavation under one house in a terrace is a very different structural proposition than an excavation under a detached house and that this be reflected in the level of scrutiny and diligence applied to applicants wishing to develop in a terrace or a semi-detached property. Analysis and testing of conditions should be proportionate to the far greater risk to neighbours involved in a terrace or semi-detached house. To all intents & purposes, Victorian/Edwardian terraced & semi-detached houses with shallow foundations such as are found throughout Barnes are structurally speaking one building with separate front doors. If risk of damage to neighbours is judged to be too great, permission should be withheld in compliance with protocols of the ECHR/HRA.
We advise the LBRuT that they need to upgrade their expertise in assessing engineering proposals at planning stage and urgently to tighten their monitoring of excavations so that poor, inconsiderate or dangerous engineering can be identified before consent is given and breaches of planning conditions better understood & penalised (and if necessary, work halted).
We propose that any contractors/engineers/architects who violate planning conditions on Health & Safety, disruption, noise, dirt, obstruction of highways, working hours etc be automatically disqualified from being involved in further planning applications. This, in one stroke, would improve the quality of the works undertaken and begin a far better level of protection for residents from the adverse affects of development, since currently contractors and owner-developers have no reason to fear temporary pauses in works, nor fines, the value of which is small change for developments worth hundreds of thousands of pounds.
We suggest that the Secretary of State for Communities and Local Government, in the spirit of the Localism Act 2011, announce that he/she will not henceforth overrule local councils on planning appeal matters specifically in cases of private residential development. Overnight this would embolden Councils, currently nervous of the cost and time involved in defending their decision at appeal, to begin refusing permissions on a case by case basis.
We request that the Mayor of London act upon the unanimous all-party motion of the London Assembly on 5th March 2014, calling on the Mayor “to revise the FALP to include a specific policy against inappropriate basement development” and “to develop a specific policy that ensures London’s subterranean landscape development does not blight resident’s lives.”
Safer Basements Group
November 18th 2015