RESTRICTION ON BUILDING (Hansard, 11 March 2002)

§ Mr. CashMr. Speaker
With this it will be convenient to discuss the following amendments: No. 81, in schedule 2, page 92, line 5, leave out paragraph 1 and insert— 'Partial building (1) An application may not be made under section 2 in relation to land which consists of, or includes, a partial building.'. No. 82, in clause 70, page 33, line 9, at end insert— 'Partial building Section []'.

§ Mr. Cash
The new clause deals with restrictions on building. We propose that, in relation to this part of the Bill, "a partial building" means part only of a building, unless that part is divided vertically from the remainder of the building and is not structurally dependent on it. We are also proposing that no person shall erect a partial building on common land.
To put that into more straightforward language, that means that commonhold ownership should not be available for only parts of buildings. Indeed, to allow that to happen would undermine the integrity of the new commonhold system in various ways. First, if, as the Bill proposes, a commonhold could consist only of those parts of a building above ground level—this arises under paragraph 1 of schedule 2—it would be possible for a commonhold to consist of the whole of a building, excluding its foundations. If it became necessary to rebuild, whether for voluntary redevelopment or, for example, as a result of a fire or other similar disaster, that would be impossible without foundations. Hence, the proposed rule seriously undermines the value of such commonhold units.
Secondly, as I am sure the Minister would agree, one of the aims of introducing commonhold is to overcome a technical deficiency in the common law, which provides no satisfactory way in which a positive obligation can be enforced against successors in title of the person originally undertaking it. Because that affects, among other matters, duties to repair, insure and pay service charges, it has hitherto made freehold an unsatisfactory way to own flats. However, if the lower part only of the building consists of a commonhold and the upper floors are outside it, as the Bill permits, all the common law inconveniences remain in the relations between the commonhold and the other parts of the building. That, again, would undermine the value of the commonhold units.
The purpose of the new clause and amendments is to ensure that if a commonhold consists of a building, all of it is included. However, it is not essential that there should be a building on a commonhold—for example, it could consist of a car park. That would be permitted, but it would be necessary to ensure that after a commonhold had been created, nothing was built partly within the commonhold and partly outside it. For that reason, we suggest that there should be a general prohibition against building in that way.
649 As the new clause suggests, "a partial building" would mean part only of a building, unless that part is divided vertically from the remainder of the building and is not structurally dependent on it. It follows that, as proposed subsection (2) states: No person shall erect a partial building on commonhold land.

§ Mr. Wills
I am grateful to the hon. Gentleman for explaining what is intended by the new clause and amendments. As so often during the Bill's progress through the House, I have some sympathy with his desire to make commonhold work. However, regardless of his good intentions, it is our view that in their current form, the new clause and amendments would give rise to some surprising and, I am sure, wholly unintended consequences, and would probably end up forbidding anything other than detached properties being built as commonholds.
Consider, first, new clause 18, and then consider a first floor flat. It is certainly part of the building, so it passes the first test. It is divided vertically from other first floor flats, but not from the remainder of the building, from most of which it is divided horizontally. It is also obviously structurally dependent upon "it", which I take still to mean the remainder of the building, so it fits comfortably into the "partial building" category of the new clause and thus cannot be built on commonhold land. The scope for argument about the definition in relation to terraced houses and even semi-detached ones is wide. I am not sure whether the hon. Gentleman meant first floor flats to be caught in that way by the new clause, and we would not consider that a welcome development.
That prohibition might seem odd enough, preventing, as it does, any development of a commonhold by new building, certainly of flats and possibly of other structurally interdependent buildings, but to cap it all, amendment No. 81 would amend schedule 2 to forbid any application for commonhold status where any existing building meets the definition. We have been criticised in this House and in the other place for our 100 per cent. rule for consents to conversion to commonhold, but that is as nothing in comparison with the proposals before us.
Under the new clause, no development, including flats, would be able to become a commonhold, whether the application was made for an existing building which was newly re-developed, or for a development which had triumphantly achieved its 100 per cent. consent target. Amendment No. 82 would add the definition to the index of defined terms.
Although I am grateful to the hon. Gentleman for his good intentions, I ask him to withdraw the motion, given the unintended consequences that I have graphically outlined to him.

§ Mr. Cash
This matter is highly technical, and has certain engineering implications relating to foundations; support; where a building is; and whether it is in fact a building, a car park, or whatever else. We are primarily dealing with normal circumstances in which such situations may not arise. The new clause and amendments would deal with a situation that we believe could arise. The Minister takes a contrary view, but in due course we 650 may find that he is wrong. The likelihood could even be as high as 50:50. We do not agree with the Government's view, but this issue does not go to the heart of all matters relating to commonhold, and deals only with limited circumstances in which we believe restrictions should be imposed.

§ Mr. Bill Wiggin (Leominster)
Before my hon. Friend makes up his mind on whether to withdraw the motion, would he help me? Perhaps because my background is not in the law, I did not understand what the Minister was talking about in relation to amendment No. 81. If commonhold property were built on top of something that was not commonhold and the building was damaged, the people in those flats would not necessarily be able to repair it as quickly as possible. Would my hon. Friend throw a little light on that particular concern?

§ Mr. Cash
That is true. It is difficult to say with any certainty exactly what kind of building it would be in those circumstances. My hon. Friend may hope to nudge me further down a line than I am not disposed to take. We should deal with that situation in the context of the Bill as a whole, which we support. We have serious reservations about certain aspects, as will no doubt emerge in due course, but the bottom line is that this is not a matter on which we want to divide the House. The Minister may turn out to be right, but I think that he is more likely to be wrong, and it will be a matter of judgment. His officials and the Law Society, which wholly supports these proposals, will be watching the situation carefully. If we are right and the Minister is wrong and problems arise, I have no doubt that the hon. Gentleman will be more than happy to introduce amendments to deal with them. Will the Minister give us an assurance that he will deal with problems if they arise? If he is good enough to give me a response on that, I shall be grateful to hear what he has to say.

§ Mr. Wills
Of course we will continue to monitor the situation. It is a remote possibility, but if it transpires that I am wrong about this, we will consider how we can put it right. I hope that that reassurance enables the hon. Gentleman to withdraw the new clause.

§ Mr. Cash
In those circumstances, I beg to ask leave to withdraw the motion.