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Basement crisis: an appeal for help

posted 13 Dec 2010, 22:37 by Stephen Taylor   [ updated 13 Dec 2010, 23:26 ]
It is roughly four years since the current fashion for deep basement excavations first hit the headlines with a serious flooding incident on Christchurch Hill. Since then there have been a substantial number of such planning applications approved, against our advice. Of these we have been made aware of twenty cases where neighbours have complained of substantial damage or flooding during or after excavation. We have now commissioned a first technical Case Study of selected cases to help provide evidence in support of the different legal and policy initiatives summarised below. This is one area where we need immediate support.

We remain very worried about another twenty, where we believe sooner or later major problems will occur. There are also around ten such applications in the pipeline. Any or all of these may need to be monitored later. Two of Camden’s decisions, where we have persuaded the Committee to refuse the application against Officers’ recommendation, have been appealed; both are test cases for us.

Intimidating legal difficulties

In one of these the developer is trying to bury us, by choosing the Public Enquiry appeal method. This requires us to appoint and pay for a legal team and expert witnesses to prove to the Inspector over a number of days that the development should not go ahead. This in particular is where we now need your help. The date is set for mid October.

Bullying tactics: defying and using the law

In the other case the developer has, regardless of the appeal, physically begun what can only be described as a “cowboy” excavation, which has already led to substantial damage next door, exposing an ambiguity in the law, which urgently needs to be clarified either at judicial review or by a statutory revision from the Government. This same “cowboy” approach is being tried at the Garden House, where you will recall we have fought and won a different battle to protect Metropolitan Open Land.

Incidentally, the big developers are making a fashion of trying to bury local protest with money by adopting this type of extremely expensive appeal procedure. They are about to try it on with for Athlone House, where the MOL principle is also at stake. This is another case where the Society will take financial exposure. Bullying can work. The developers of Witanhurst recently successfully appealed for a substantial development including a mega basement, prevailing over a group of private protesters in Highgate, who simply could not afford to match costs for witness cross-examination.

Has the Society acted prudently so far?

It has taken the Society some time to understand fully how these risks should be controlled within the planning system, how to win at the Camden level the test cases we have chosen, and how to guide Camden to write better policies and adopt better practices in future. The process has had some success in recent months and has cost us around £12K so far for the specialist legal, geotechnical and structural engineering advice needed to supplement our very strong in-house team. This has been an appropriate use of our funds, though resulting in a deficit last year. However, it is obvious from the list above that a lot of applications “got away”, either because they occurred pre-2009 and/or we could not afford to join in fighting them all with the necessary level of expensive technical evidence. We are trail-blazing this one, not for the first time in our past 113 years.

Working with Camden

We have spent a great deal of time this year behind the scenes working with senior planning and legal officers in Camden trying to minimise the areas of disagreement on policy and interpretation. We say serious damage prevention is a matter for public planning law; Camden and other local authorities say it is exclusively a matter for civil law, once damage has occurred. The result has been that in the two test case appeals we now confront, we are working alongside Camden against the developers. Camden has also accepted our amendments for their new local policies to control excavation, which are due to be adopted later this year. Camden has consulted us in the preparation of their written request for advice from their outside legal adviser seeking clarification on relevant national policies and statutes. We hope and expect to persuade Camden to work with us to obtain clarification from the Government on the statutory issue, rather than attempt to go down the potentially expensive judicial review route.

We have in all cases asked that resident associations or neighbour groups with whom we work, meet at least 50% of costs jointly incurred. We intend to use the current high level of interest locally in this topic to try to recruit more members to the Society to spread our financial burdens and increase the clout of the Society.

How will any funds raised help meet the Society’s objectives?

The Technical Case Study or Studies (tightly controlling costs) will help the Society to strengthen:
  • Our appearance at the test case Public Enquiry Appeal in October.
  • Our lobby to Central Government to clarify the law to stop “cowboy” basement digging.
  • Our case against future objections to basement applications in Hampstead.
  • Camden’s defence of its new local policies against future challenges from developers.
  • Camden’s case to obtain advice from their external legal adviser to interpret national policy along the same lines as the Society.
If we are successful, about which we are reasonably confident, having a full technical and legal team (we will control costs as tightly as possible) at the test case appeal in October will,
  • go some way to creating a precedent for our interpretation of relevant national policy
  • send a strong message to future developers and their advisers including those in the pipeline
  • prevent an outrageously dangerous development from taking place in central Hampstead.
Please give as generously as you feel able and complete the Gift Aid form with your donation. You gave pledges very generously three years ago for our successful judicial review of the Garden House decision, which fortunately we were able to avoid calling on, because costs were awarded in our favour. 
This time it is hard cash that we are calling for in much harder times. There are, however, on this occasion, good personal reasons, as well as altruistic ones, for giving us your support

Why give?

The next application to dig a large hole may be next door or in your street with all the resulting months of noise, dirt, truck movements and in some cases severe damage.

If this goes on much longer, insurance premiums in Hampstead will soar even higher and property values suffer from fear of widespread subsidence risks.