Radnor Walk Party Wall and Basement Excavation Issues

RADNOR WALK: BASEMENTS AND LIGHT WELLS
Except for the top end of Radnor Walk near the King's Road and the bottom end between Smith
Terrace and Redesdale Street all the houses on both sides of the street are terraced and date from
1840-50. Only one had a basement, thought to date from when the house was built, and all are set
back about four feet from the pavement. Although the railings were removed during the Second
World War many owners have replaced them. There is therefore a degree of uniformity in these
rows of partially white stucco terraced house which is one of the reasons the street is part of the
wider Conservation Area. The only serious alterations to these houses over many years were to
their backs, and since the introduction of Planning controls some decades ago no changes have been
permitted to the fronts or the roof levels. A few applications for permission to excavate basements
were allowed in the decade of the 2000's but it was the Council's policy because the street was in a
Conservation Area not to permit the excavation of any open light well and only to permit a
basement to extend into the front area of a house as an escape route on condition that it was
covered by stone or opaque glass so that there would be no change visually to the fronts of the
houses.
This policy changed for no apparent reason when in the summer of 2008 an application to excavate
an open light well in one house received little publicity and was approved without most of the
residents (or the Residents' Association) being aware. It would seem that a member of the staff of
the Planning Department who was not conversant with its long standing policy to refuse permission
for open light wells recommended approval. Subsequently another house changed ownership and
an application to excavate a basement and small light well to be covered by opaque glass was
submitted to the Planning Department and approved but in the course of the work the whole area in
front of the house was excavated to make a large open light well, and although the Residents'
Association drew this to the Department's attention and were told that an enforcement notice
would be issued to stop the excavation and restore the site to the terms of the planning permission
no order was issued. Instead, after many months’ prevarication by the Planning Department the
owner was required to submit a new application for an open light well, and permission was then
refused. The owner then appealed and the Inspector upheld the appeal mainly on the grounds that
it was a fait accomplit and there was already one original open light well in the street. The
Residents' Association has been very critical of the Planning Department in this case because many
residents do not want to see a proliferation of open light wells on both sides of the street which will
change its character and it is felt that the Department can no longer be relied upon to listen to the
concerns of residents or take prompt action when the terms of planning permission are exceeded.
The effect of these developments since 2008 suggest that any owner or developer now wishing to
excavate a basement with an open light well will get planning permission, and in the fullness of
time the character of the front of these houses down both sides of the street will change, objections
being overruled. Does it matter? Only perhaps to those who care about preserving the early
Victorian character of these houses and a perhaps purist concept of a Conservation Area.
Another aspect of the breech of Planning permission concerns the excavation of sub-basements
where none has been authorised. There are two houses in the street that were bought by a
developer where this has happened. In these cases the development work was shielded from
public sight by hoarding so that residents did not know what was happening, and the houses have
subsequently been sold and the Planning Department has decided that there is nothing that can now
be done to rectify the breech of planning consent. However, a neighbouring owner has been
affected by the diversion of underground water flows and possible risk of subsidence, but has no
basis for recourse to the present or former owner (the property developer) except perhaps through
long legal process to which the Planning Department probably would have to be a party. The
unsatisfactory nature of this situation stems in part from the Planning Department’s policy of relying
on the structural engineer paid for by the developer (who therefore has a conflict of interest) to
ensure that the terms of the planning consent are carried out and not exceeded.
There are however more serious implications concerning the excavation work of basements and
light wells. There is a legal necessity for neighbours sharing a party wall to enter into a party wall
agreement before work that will or could affect the party wall is undertaken. The owner proposing to
undertake the excavation is required by the Council to employ a qualified structural engineer and the
neighbouring owner has to do so (at own expense). There are however two aspects of this situation
that can have serious consequences for the neighbouring owner. First, because the
owner/developer undertaking the work employs a qualified structural engineer the Council as a
matter of policy will not concern itself to ensure that the work undertaken is not faulty and does not
have implications for subsidence or other damage, and unless there are a lot of complaints the
Planning Department is reluctant to check that the excavations do not go beyond what has been
authorised. The need for the neighbour/owner to protect his property therefore rests entirely with
him, and will be entirely at his expense. Also, if there is remedial work required to the neighbouring
property, eg. from dampness/subsidence/redecoration the party wall agreement gives the
neighbour no right of reimbursement. Sometimes a developer with undertake repair work to a
neighbouring property but, if not, the only alternatives are recourse to the law (which could be
costly) or bearing the repair costs oneself. Instances have occurred in this street where the
neighbouring owners of properties where basements and sub basements have been excavated
have incurred costs running into many thousands of pounds. In this case the excavation of the open
light well disturbed an ancient water well that had been covered over when the street was built and
when nobody knew about. It is therefore essential for any owner whose neighbour intends to
embark on structural work to protect himself as well as possible legally.
In practice the only satisfactory defence against this situation is for there to be enforceable legal
agreement in addition to a party wall agreement which will indemnify the neighbour/owner against
unforeseen costs caused by the party(ies) responsible for and undertaking the work. This is the
only way in which the owner of a property where a basement/light well is to be excavated can be
held responsible for damage to party walls that could undermine the neighbouring properties and
cause costly damage. And, separately, it would seem essential for the officers of the Council to be
persuaded that they must monitor work being undertaken in excavating basements and light wells
(and also other work being undertaken at the back of houses) to ensure that there is no breech of
planning consent because it is clear that structural engineers, however well qualified, have a conflict
of interest and cannot be relied on.
26th February 2010

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RADNOR WALK: BASEMENTS AND LIGHT WELLS

26th February 2010

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