Planning Law Review

The Society contributed on 28th October 2017 to the Raynsford Review of Planning Law as follows

GEOGRAPHICAL APPLICATION

Central London has particular pressures which do not apply with as much force or at all to other parts of the country.  We therefore think that the issues which we mention here need to be addressed in a London Bill and not in general legislation.  Our submissions relate to Chelsea but may well apply to other densely-populated parts of Inner London where pressures on our local communities are significantly greater than elsewhere.  Chelsea is one of the most densely-populated parts of the country.  Around 80% of the population live in flats, and the other 20% in houses, which are mostly terrace

BALANCE

We recognise the general principle that property owners are free to do as they please with their property subject to restrictions in the public interest.  However, we think that the balance of planning law is currently too much in favour of the property owner, and does not attach sufficient weight to the local people who are affected by his development.

It is often impossible for local people to live or work in their homes during builders’ working hours for many months or even years, but the owners of the building site are rarely personally affected by the work, as they are usually living elsewhere.  Earlier this year one of our members died due to the noise, dust, vibrations and intolerable stress caused by a development next door for which the Local Planning Authority had been obliged to grant planning permission.

This is an experience suffered by hundreds of local people who have not died, but have suffered far more than they should be expected to endure, for the benefit of one individual or company.

So, we have one dead member and little to show for it in terms of benefits conferred by the development.

Here is a letter from one of our members:

“When the Council gives permission to carry out extensive building works I do not think they realise the serious ramifications it has on neighbours.  I have now endured nearly three years of building works on neighbouring houses, the first started in 2014, and another has just started.  Both houses have had extensive subterranean developments and both houses have been gutted.  With terraced houses not only can you hear drilling work going on at a neighbouring house, but you can also hear it two or more houses away.  The owner of one of the houses ignored every single rule and guideline laid down by the Council and on some occasions there was drilling on a Sunday and on another occasion a huge cement mixer was pumping cement into the house at 7pm on a Friday evening.  The Council’s response was that if they hadn’t seen or heard it they could do nothing about it.

Since the beginning of December 2015 I have had to endure building works directly next door to me.  Originally I was informed the work would take 8 months, but 19 months on and I will be lucky if it is finished by the end of this year as the structural work has only just been completed.  There has been constant and almost continual excavation and drilling work going on during that time.  Do you have any idea what that is like when you live and work at home?  You can’t hear the person in front of you speak, the whole house vibrates and this happens day in day out, month in month out, and now year in year out.  I have had tradesmen come to the house, friends come to the house, and everybody asks how can I possibly live like that.  For three years now I have been woken by builders at 8am almost every morning.  There has been a 15ft deep excavation from the front of the house to the rear of the garden. 

Throughout I have been misled as to the timing of the building works and when they would be finished.  I had a 10-week battle with the builders about drilling and excavating into and close to the party wall without a Party Wall Agreement.  I eventually had to get a solicitor involved and threaten to take them to court before work was stopped, and I ended up being responsible for the solicitor’s bill.  The Party Wall Agreement refers to notice of works, noise monitoring, hours for high impact drilling etc., but nothing that was agreed was adhered to and I have no comeback on anyone.

I imagine the builder said the works would take 8 months in their application to the Council, and I doubt if any mention has been made that the duration will likely now be two years or more.  I attempted to involve the Council on a number of occasions but without success, and throughout this process I have been on my own. 

The Council should have power to prevent subterranean developments altogether because of the misery it brings to the lives of neighbours particularly those living in terraced houses, and the length of time it takes to do the excavation work.  They should also have a stronger unit within the Council to monitor building works and ensure that builders are sticking to the Council’s guidelines.  That would include speaking to neighbours to address their concerns and ensure that if builders do not adhere to the Council’s Code of Construction Practice there are serious consequences. 

Everybody understands that people want to do works to their homes, but to turn other people’s lives upside down is inconsiderate, selfish, and wrong.”

With the advent of the internet, many more people now work from home, and planning law fails to take this social change into account. It seems that the needs of ‘home workers’ come a very distant second to those of developers and their contractors. It remains unclear why this sector of the economy should enjoy preferential treatment over those working in other sectors of the economy.

There are some streets in Chelsea where all but the most minor development would have a serious adverse impact on local people.  We propose therefore that the LPA should be given power to designate areas in which there would be a presumption against development of any kind, and it would be for the applicant to demonstrate that the development should be permitted, having regard to the benefits which it would confer, balanced against the adverse effects on the local community.

Local people are tired of living on a building site, and in general, the message should be “if you want to buy a building and carry out major construction works, Chelsea is not the place for you.”

Some people believe that regulation of working times and control of the number of building sites per street can deal with this problem, but where buildings are being gutted inside and/or remodeled or extended outside, a serious impact on the quality of life of local residents is almost inevitable, no matter how well the works are carried out. Building work cannot be done without noise, dust and vibrations.

COMPENSATION

Traditionally building owners have not been required to compensate nearby residents for the diminution in their quality of life caused to them for the benefit of the building owner.  We do not think that this is fair, and we believe that before the commencement of works the Council should be given a legal charge on the property to secure the payment of compensation to be assessed by a Tribunal if not agreed.  The Tribunal would have regard to the length and severity of the diminution, and the conduct of the owner and the builders.

DAMAGE TO NEIGHBOURING PROPERTY

The Council should have power whenever planning permission is given, to require owners to give to the Council a legal charge on the property to cover damage to neighbouring property and the associated professional fees.  It should not be left to neighbouring residents to spend money on solicitors, party-wall surveyors and builders for work that they do not want but have no power to prevent.

BASEMENTS

Basement development often causes the greatest adverse impacts, and that is why the Council of the RBKC has restricted the area of the property which can be excavated.  This restriction reduces to some extent the disruption to the lives of local people but it does not go far enough.  We therefore think that areas should be designated as indicated above in which there should be a presumption against basement development.

In areas where permission for a basement is given, the Council should have power to limit the depth as well as the extent, because depth is directly related to time, noise, and damage.

Where it is necessary in order to carry out private building work to open up the footway or the highway, or to obstruct it for more than a few hours, this should generally not be permitted by the Highway Authority, and the development will not therefore be possible even if planning consent has been granted.

CONSTRUCTION POLLUTION AND TRAFFIC

Most of Chelsea’s streets were constructed in the days of horse-drawn transport, and are not suitable for the movement of large and/or heavy motor vehicles. If it is not possible to agree a construction plan and a construction traffic management plan which adequately protect local people, then this should itself be a ground for refusing planning permission.

In the near future, more of the vehicles and equipment used by builders will be electric and this might reduce some of the noise, but already much of the noise is cause by electric power-tools.

ENFORCEMENT

We are pleased that RBKC are consulting with The Chelsea Society and other representatives of local people to find ways in which enforcement can be improved in the case of development-control and associated obligations such as construction management plans and construction-traffic management plans.

In cases where development is permitted, there must be very stringent controls on the noise, dust, obstruction, and traffic congestion involved. The Council should ensure that noise monitoring is in place, and that the quietest machinery is being used.  The controls must be strictly monitored in and out of office-hours if they are to be effective, and the Council therefore needs to employ sufficient people to perform these tasks.  The costs must be met by the developer out of a fee paid to the Council at the commencement of the work.

Active and visible enforcement is essential and requires hands-on monitoring/policing methods and rapid response. It is a time-consuming business to move about the streets of central London, even on a motorcycle or scooter, so enforcement officers should have equipment which will enable them to view real-time video images sent by local residents, and to make and record immediate telephone calls to the owner or manager of the building.  Depending on the quality of these images and recordings they could be used to support penalties, or even prosecutions in appropriate cases.

It should be a requirement that a person able to speak English should always be onsite when any work is in progress, and that one or more responsible English-speaking persons should be contactable by telephone at all times. The Council should have power to levy a scale of penalties for failure comply with these requirements.

At the time planning permission is granted the Council should nominate one or more officials who are responsible for monitoring the development, and give their contact details to nearby residents. They must be available at all times to be contacted if there is a problem related to the building works.  We have heard too many cases where calls have been redirected three or four times.

There should be a significant financial consequence, and not just a warning, for builders who fail to comply with their obligations, and it should be no excuse that it was the fault of a junior employee who did not understand the rules.  For example where car parking has not been suspended and a skip is obstructing a parking space a fine should be payable which is greater than the fixed-penalty for illegal parking or the cost of paying for parking suspension.

All owners who wish to do building work must meet with their neighbours to discuss what they are proposing to do.  The Council should not be obliged to grant permission for any building works until they have confirmation from the neighbours that they have been invited to meet and are aware of the intended works.  Neighbours should be given a schedule of works and timetable, and if this changes a proper explanation should be given.

Property values in Chelsea are so high that fines may not be an adequate deterrent.  We think that in the worst cases the Crown Court should have power to impose a custodial sentence.

Where there has been a breach of development control, the LPA has a discretion whether to order reinstatement, but developers should not be led to believe that they can carry out unlawful development and expect to get retrospective consent if discovered. Too often the fact the works are already started or even completed makes it more difficult to object. Furthermore local residents face disruption for work that may need re-doing or re-instating.

TIMING OF DEVELOPMENT

There are some streets in Chelsea where several developments are in progress at the same time, and which results in unacceptable diminution in the quality of life for local people.  The Council should have power to control the timing of multiple developments in a defined locality to ensure that this does not happen.

In order to reduce the period of time for which local people have to suffer the effects of building works, the Council should have power to impose time limits and to levy a per diem penalty if work over-runs.

Leaving a site undeveloped/ derelict blights the surrounding neighbourhood, so planning permission for significant developments should be strictly time-limited, with per diem penalties

The Council should have power to sell the property if penalties are not paid, or if more than six months have elapsed since the time limit expired.

MULTIPLE APPLICATIONS

Often we see a series of applications for essentially the same development.  Local people and amenity societies like The Chelsea Society have to make an objection every time a new application is made, or it will not be considered.  This is an unreasonable burden on people who are not being paid to protect their local environment.

HOUSING

It will never be possible to meet the demand for housing in London if everyone in the world who wishes to do so can buy or rent a house or a flat here.

There are a number of planning rules which make good sense in most of the country, but not in Chelsea. For example, the presumption that change of use to housing is beneficial. Sometimes it is, but in Chelsea such a change of use often means replacing a local amenity with luxury flats for foreign millionaires.

The “residentialisation” of Kensington & Chelsea is a serious issue. Because of the property values all available space is slowly converting into residences and the LPA has insufficient power to resist. They should be given more power to resist, and there should be financial incentives for commercial activities to move into the Borough or to stay. We have hardly any offices, and pubs and restaurant are being closed. We do not want the Borough to become a dead residential district. We like our services and the vitality they bring adds to the security of our streets and our quality of life.

All remaining employment space should be safeguarded against change of use applications particularly all the land in Chelsea’s Employment Zone.

 

MICHAEL STEPHEN

Planning Committee Chairman

28th October 2017

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