The Chelsea Society has objected as follows to the application PP/17/00133 for a large basement under the old courthouse at 1A Walton street.
“The Chelsea Society urges the Council to reject this application. It would, if granted, be in breach of the Council’s new policy on basement development and would cause a degree of damage and disruption to the lives of local residents which cannot be justified.
It would be in breach of the Council’s basement policy because the owner of the property has already undertaken the construction of a basement there. The relevant arguments are well and persuasively set out in the letter of 3 February from Roger Birtles of Simply Planners. What is now proposed is the addition of a second basement. The Council should not allow its new policy to be circumvented in this way.
Moreover the scale of the construction activity would be intolerable for local residents and would pose a risk to their health and well-being which the Council should not expect them to have to suffer. The scale of activity envisaged by the Construction Traffic Management Plan is enormous. The reality is that no plan can adequately mitigate the disruption caused by lorry movements on this scale. The Council should recognise this as a valid reason for refusing the application. The criterion should not be whether the proposed Traffic Management Plan is the best that can be devised: it should be whether the level of protection which it offers against unreasonable disruption is adequate. There are cases where no Traffic Management Plan can provide such protection and where a development should not therefore be allowed to take place. 1A Walton Street is one of them. ”
The Chelsea Society has responded to the government’s call for evidence on basements.
No permitted-development rights for basements
The High Court in Eatherley v LB Camden  EWHC 3108 (Admin) has held that there are no permitted-development rights to construct basements where (as is usually the case) engineering works are involved.
RBKC’s Policy CL7 on Basements was challenged in the High Court by Zipporah
Lisle-Mainwaring and Force Foundation (Basement Force) Ltd. The court dismissed the challenge.
There were three grounds of challenge – (1) the Council had failed to take account of a material
consideration, namely the permitted development rights for basement development, and the risk of
greater reliance on them if the basements policy was were adopted. (2) The Council did not consider
and/or assess the “reasonable alternative” of a “case by case” approach put forward by Basement
Force. In not considering this alternative the Council had failed to carry out an adequate
environmental assessment, as required by Regulations (3) In rejecting the Second Claimant’s
reasonable alternative, the Council belatedly relied upon a new “false objective” of “bearing down
on the volume of excavation”.
Mrs Justice Lang dismissed all three grounds. She found that the Council had referred to permitted
development rights in various documents during policy preparation and had prepared the policy being
aware of the extent of permitted development rights. The Council did not introduce a “false
objective” rather this was “genuine objective” and was apparent from the outset. The assessment of
alternatives and the conclusion whether these were reasonable was for the Council to make. The
courts have a supervisory remit in this matter and can only intervene if an error of law had been
made. The Council had complied with its statutory obligations.
CHELSEA SOCIETY’S COMMENT ON RBKC BASEMENTS POLICY
The Chelsea Society welcomes the draft Supplementary Planning Document on Basements issued by RBKC in February 2015, to supplement their Core Strategy CL7 on basements. Policy CL7 was itself a welcome change in the Council’s policies. It places limits on the size of basement developments, and because development is now limited to one storey and to half of the garden area, it will reduce the scale of works and the time they take. Two or three basement floors are much more difficult to construct than one. We think that if a basement already exists no further excavation below that level should be permitted, and that no basement under gardens should be permitted,
The draft SPD and CL7 are documents to which a lot of detailed thought has been given, and from which it is clear that lessons have been learned from experience. They are nevertheless just pieces of paper unless the rules which they contain are understood and complied with. There is not much point in requiring a detailed CMS or CTMP if developers and contractors are not compelled to adhere to them.
Some of the points made in the draft SPD and in this Response apply equally to construction work above ground as they do to basements, and there must of course be consistency between the SPD and the Code of Construction Practice on which RBKC is currently working. Some of the points are also covered by existing legislation.
In a densely populated area like Chelsea, all demolition and construction work has inevitably an adverse impact on local people, sometimes making their homes and places of work virtually uninhabitable for the duration of the works. It adds significantly to the traffic congestion, the noise, and the dust, and it is regrettable that so much of it goes on every day in Chelsea, even though some developments do result in an improvement.
Many developers in Chelsea are responsible people, with a stake in the community, but some are not, and there have been so many cases of death and serious injury that the Health and Safety Executive has launched a major investigation.
People receive substantial benefit from creating or enlarging basements (otherwise they would not do it) but neighbouring residents receive nothing but damage to their quality of life for months and sometimes years, and some way needs to be found to redress this balance. According to the Council there were 180 applications for basement development in 2010 and 393 in 2014.
The burden should be shared more equitably between local residents and developers, and the feasibility should be explored of including in s.106 agreements a provision that the developer posts a financial bond to enable the Council to pay compensation to the occupiers of specified dwellings for disruption of their lives, and also for any damage or financial loss directly attributable to the works. It should not be left to local residents to sue the developer or contractor concerned, as legal action involves too much time, cost, and risk for them.
The Council has accepted its responsibility to ensure so far as it can within its legal powers and within the limits of practicality, that the adverse effect of basement works on the neighbourhood is kept to a minimum, and that the works are carried out in a professional manner so as not to cause damage to adjoining properties or the public infrastructure.
We note that in the past year planning enforcement officers have served 162 notices on developers, 46 of which related to basement developments which breached Construction Traffic Management Plans. The Council has secured its first successful prosecution for non-compliance with a Construction Traffic Management Plan, which resulted in a fine and costs totalling £16,020, and more prosecutions are in progress.
It is not a cheap or simple task to monitor and enforce these rules, but residents of Chelsea do not want to hear the Council say that it has granted permission but does not have the resources or legal power to monitor and enforce the rules. We are therefore pleased to see that the Council has increased the number of its planning enforcement officers by a third. The Council should seek to include in section 106 agreements a charge to developers to cover the cost of the resources necessary for monitoring and enforcement.
It is important that the rules are understood and complied with, not only by building owners, architects and contractors but also by the people who actually drive the trucks and operate the power-tools and machinery. To ensure that Codes of Conduct are taken seriously and that the persons concerned are properly trained and supervised, financial penalties should be agreed and enforced, for non-compliance with the rules, including those which do not involve a breach of the law.
Residents of Chelsea understand that we have to endure some disruption to our lives and our amenities by building work, but only for the minimum period necessary. Sometimes works are left unfinished for weeks or months, causing visual and other damage to the amenity of the locality, and the Council should therefore agree with developers a period of time for completion, after which penalties should become payable.
A financial bond should be given to the Council so that if the works are abandoned the Council can make the building and adjoining buildings safe, remove all obstructions and scaffolding and temporary structures, prevent unauthorised access, and restore the building as far as possible to its visual appearance before commencement of the works.
In cases where multiple basement construction takes place in the same locality it places an intolerable burden on local residents, and the Council should be given power to control the timing of the commencement and completion of works so as to relieve this hardship.
The Council cannot currently prevent the construction of a basement on land owned by the applicant if the application is in all respects one which should be granted in accordance with planning law, but the Council should not permit encroachment under the public highway or footpath nor under garden squares.
The Society has the following comments on particular paragraphs of the draft SPD:
2.3 Consultations with neighbours must be meaningful, and not a mere formality. Good developers will take notice of their neighbour’s concerns but some will not. One important factor to be discussed with neighbours is whether they want continuous work during working hours or whether they would prefer, say, two hours on and two hours off for very noisy work. Also, whether they would prefer weekend working while they are away from home.
3.13 Permission for development can be refused under section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990, not only underneath a listed building but also within the curtilage of a listed building, if it would affect the building, or the character of the building or its setting.
5.2 Any professional person or contractor or subcontractor who has been responsible for a serious contravention of CL7 or the SPD should not be accepted as a responsible person for the purposes of any future CMS. It is to be expected that all professionals and contractors and subcontractors would be insured for all relevant risks, and the Council should require written evidence that they are, and that the insurance is adequate and is maintained for the duration of the works.
6.3 It should be possible for members of the public to contact, even out of working hours, a responsible person acting on behalf of the contractor. A telephone number should also be displayed for the public to contact a person at the Council even out of working hours who should be responsible for liaising with all relevant departments of the Council and with external agencies. Immediate action is sometimes necessary, sometimes out of working hours. The public should not be expected to make multiple calls to different offices, and there should be a “one-stop shop.” Council staff should be trained to have a positive attitude to such complaints. We are therefore pleased that RBKC has established a new group to coordinate all the Council’s construction-related enforcement services made up of officers from teams including parking and highways enforcement, environmental health, transport planning, and planning enforcement, to deliver a joined up response to construction enforcement matters in the Borough.
6.9 Each draft CTMP should be placed on the Council’s website and notified to local residents and to local residents’ associations for their comments
6.11 Traffic Wardens should be expected to report, photograph, and take immediate enforcement action in case of obstruction of the road or footway, or any unauthorised use of any residents’ or metered, parking space or on single or double yellow lines or near drop-kerbs or pedestrian crossings.
6.12 Where practicable, skips should not be used, especially if they cause an obstruction outside the site. Very large bags are now available which can be lifted on to a truck with its own crane, which would involve only one heavy-truck journey, to remove the filled bag from site.
6.29 a purpose-built acoustic enclosure should actually be required. Although much of the noise will be caused by the work being performed by the machine (as distinct from the machine itself), the Council should require the use of the quietest type of all equipment used on site. Attention is also needed to noise caused by shouting and playing of radios etc. on sites.
6.47 scaffold-sheeting should be designed and fixed to minimise noise caused by the wind
7.1 a TPO should be placed on trees if they are significant trees and could be affected by work nearby. Special care should be taken to avoid root damage, or deprivation of water to the tree, or pollution of the soil by anything which would be harmful to the tree. Any requirement to plant a new tree should require it to be planted within a limited time.
Planning Committee of the Chelsea Society
31st March 2015