My Lords, I am pleased to be able to support the noble Earl, Lord Lytton, on these two amendments. We had some useful discussion in Committee, and I know that the Minister and her officials have been working very hard on seeing what the problems are and what the best solution is. Amendment 16 is certainly a way forward, because the status quo is, unfortunately, very unsatisfactory.
One problem, which the noble Earl, Lord Lytton, alluded to, is that party wall issues come only well after the legislation is completed. We are now beginning
to see some problems with phase 1. It will be a long time before we see similar problems, although of a smaller scale, with phase 2, but I hope that we can really move forward on this. The RICS and the noble Earl, Lord Lytton, have offered to take this forward, with the hope of creating some statutory guidance, but, if not, there needs to be some other means of ensuring that there is fair play without the project being delayed. I think we all agree that this should not be a way of delaying the project; it should be a way of getting party wall issues resolved quickly and cheaply to everybody’s satisfaction. As the noble Earl said, if we do not get it right, the prospect of litigation and even class actions, with knock-on effects for the cost of HS2, would be very real, and I am sure the Minister will agree that we do not want that.
It is clearly the Government’s view that Schedule 2 to the Bill would be an alternative way of dealing with access to carry out investigations and notifying owners, particularly before carrying out safeguarding works, given the disapplication, by Schedule 23 to the Bill, of Section 6 of the Party Wall etc. Act 1996, which relates to adjacent excavations for construction. In a minute I shall come up with an example which I fear rather indicates that this is not working at the moment.
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Similarly, paragraph 1 of Schedule 2 refers to Part 7 of the Housing and Planning Act 2016, and is concerned with compulsory acquisition of rights in land. This is not what the party wall Act is designed to do—that is compulsory acquisition, not the party wall issue.
Paragraph 2 and the subsequent parts of Schedule 2 provide for notice, and might in theory extend the spatial limits of Section 6 of the party wall Act, but this seems to be based solely on HS2’s assessment of what is necessary. It leaves things permanently on or under an adjoining owner’s land or building, all without any test of reasonableness of the proposals, and no process of negotiations or for the reimbursement of professional costs of the adjoining owner in attempting to do so. So, if a consensus is reached, is there any mechanism for setting in place a binding agreement? The answer presumably, if somebody does not agree, is “Take us to arbitration”, but, as we have heard many times, that could be very expensive.
My concern is that it is difficult to give an example of what could happen on something where the work has not started. I make no apology for going back to the example I used in Committee of Park Village East outside Euston, where there is a row of listed- building houses next to a road supported by a very high brick wall, which has uncertain foundations because it is very old. The plan is for HS2 to build a 10-metre deep trench below the base of the wall. HS2 does not seem to know what the effect of this work is going to be on the houses, and it has not even told the residents that some time early next year these horizontal ties which I mentioned will be drilled from beside the wall underneath the houses. There will be two rows of them, probably at 1 or 2-metre centres. Then there is the question of what effect that will have on the properties.
Under normal party wall Act legislation, the undertaker would have to submit and get a schedule of conditions undertaken so that both parties—the resident and the
nominated undertaker—would know what the state of the building was before any work started. This is absolutely fundamental. There is no evidence of this being done yet, and the residents are getting quite worried. There are various reports, which I do not think I can go into now, which explain how this should be done—but I just want to say a few words about the issue of settlements.
One employee of the nominated undertaker or its contractor asked a resident at a meeting quite recently why the residents needed a condition survey now, since everyone knew that ground anchors would not cause settlement. In my dim and distant past as a civil engineer, I have been involved with a few things like ground anchors. But that is an extraordinary statement, produced without any evidence, when there is, however, strong evidence from HS2’s papers that there will be settlement. The question really is: how much, when, and what can be done to stop it?
No design of the trench and the railway has yet been given to the residents. I have heard that the contractors—it is a Skanska, Costain and Strabag joint venture—have not yet been able to obtain insurance against any settlements. However, look at the risk registers submitted to the House of Lords Select Committee, and particularly an entry called C220-P1S1-237. The hazard description talks about the ground movement effects on the unknown condition of the existing asset, which is also a brittle service; the risk description potential for local instability or collapse of existing, weakened or defective basements; close proximity of works or associated ground movements; and—worst of all—risk of serious injuries or fatalities from crushing, engulfment, entrapment of workers or collapse on to and obstruction of the operational Network Rail tracks, causing train derailments, gas explosions or electric explosion. The risk is called high.
This is a serious issue and there is no outcome that we can yet see. How can one of HS2’s employees say to a resident who is affected that there will be no settlement? Residents have not been told officially about Schedule 23, let alone the public work implications of the party wall Act. They have heard about ground anchors and have not been given any detail of the design of the anchors that are supposed to hold up the wall. If the residents are concerned about it and want to employ professionals, the professionals must have the technical details to advise the residents on what they can do.
The first issue here is a schedule of condition that should preferably been done by surveyors who can agree on the condition before the work starts—obviously funded by HS2. It is disappointing that HS2 does not even seem to have started the process some six months after the Prime Minister gave the go-ahead. I doubt whether HS2 knows what it is going to build yet. I do not know the answer but I worry that this will be a poor example of what has gone on, which has largely been caused by the mixing of Schedule 23 and bits of the party wall Act.
I have to conclude, for the moment, that this example is a story of incompetence, ignorance and cover-ups that have sadly become too common. I am not going to refer to NDAs again but people need to see what is being built. I do not know what can be changed on the design, or whether there is a design even, but several thousand people are affected by party wall issues. They are more than ever likely to go to arbitration,
obstruction and, in the end, the High Court because of a combination of a lack of consultation with the party wall experts, inappropriate legislation and poor communication.
I know that this is all about phase 1 and it cannot be changed now, but we should learn from this lesson. I do not know what can be done about phase 1. We should learn from this lesson for HS2 phase 2. It is a smaller project although, as the noble Earl, Lord Lytton, said, there will be some party walls. It would be a good opportunity to try out what he suggested to achieve something that can deliver proper party wall-balanced solutions without delaying the project. I fully support the amendment.