A High Court judge has ruled against Croydon’s planning department, quashing the decision of a senior council official to grant permission for a block of flats in Sanderstead.
Here, former council planner STEVE WHITESIDE explains how the court ruling could impact similar developments throughout the borough

54 Arkwright Road: a High Court judge has ruled the council acted unlawfully over this Aventier development

We all know how exceedingly busy Croydon’s planners have been over the past few years, helping developers to squeeze far too many flats or houses into far too many inappropriate places.

We know, too, that many of these new properties remain unsold.

Is it that the new flats – often offered on the over-heated London housing market at £350,000 and upwards for even small-ish, one-bed “luxury apartments” – are too expensive?

Is it, perhaps, because many of the developments are of such poor overall quality?

Or is it simply because they don’t have planning permission?

A test case involving a development in Sanderstead could yet draw a line under some of the dodgier decisions being made by Croydon’s planners.

In 2017, planning permission was granted by the council for the demolition of existing building at 54 Arkwright Road and the erection of a two-to-three-storey building which would include six two-bedroom flats and one three-bed flat, as well as the “formation of vehicular access and provision of seven parking spaces, cycle and refuse storage and landscaping”.

Over-ruled: planner Nicola Townsend

Last year, with the building work pretty much complete, there was a retrospective application (20/04314/CONR) from the developers to alter the planning conditions for 54 Arkwright Road.

In April, the council granted that application.

I launched a Judicial Review to challenge the council’s decision.

That challenge was successful.

The Consent Order was “sealed” in the High Court on September 22. The decision by Nicola Townsend, the council’s “head of development management”, was to be quashed, leaving the as-built development without valid planning permission.

The main part of the claim was about the error of law or the irrationality on the part of Croydon’s planners, the same council officials who, according to Heather Cheesbrough, the director of planning and strategic transport, when lecturing elected councillors, have the “highest personal integrity and professionalism”.

The council chose not to contest the Judicial Review. Perhaps they wanted to avoid having judges looking into these matters too closely?

As part of the court order, Croydon Council acknowledges that:

• in considering the application, it should have expressly recognised that it was being asked to grant permission that was both retrospective and prospective in effect, and thus to exercise the power under Section 73A of the Town and Country Planning Act 1990
• it should, therefore, have given consideration to whether and if so what assessment of the wider planning merits was required, beyond a comparison of the changes proposed as against the plans previously approved, and
• the officer report was, at best, ambiguous as to whether the application had been considered against the current development plan, as opposed to that which was extant when permission was granted in 2017.

In other words, the council’s planners did it completely wrong. Even though they had been warned not to.

Planning permission denied: the seven flats on Arkwright Road are still being offered for sale, despite technically being unlawful following the Judicial Review

Although the council would have received the judge’s sealed order on or around  September 22, it would be more than a month – and only following a warning letter from a solicitor – before the application’s status on the council website was changed from “Permission Granted” to “Awaiting Decision”.

Until then, with these flats being marketed by estate agents Foxtons as being for sale from £430,000 to £480,000, any interested party – conveyancing solicitors working for prospective buyers, for example – when looking at the council’s website, might have reasonably concluded that there was no planning issue here and proceeded with the purchase on that basis.

But there was an issue and there still is, and it’s a big one. The development is unlawful.

Even today, all seven flats at “Ark Apartments” are being offered for sale on the agents’ website.

As the council’s own development management Advice Note 6 states: “If you are already in breach, then the development would have become unlawful and you would have to make a retrospective application for planning permission to continue.”

Sales spiel: Foxtons fail to mention the absence of valid planning permission

Given the level of breach here, and the all-too-evident inability or unwillingness of the council’s enforcement officers to do anything (about pretty much anything), the only realistic option is for a new, full planning application to be submitted.

All that has now been built must be freshly assessed against the current development plan.

The new application will require consultation and be “referrable”, so that if recommended for approval by Townsend and her department, it could be put back to the planning committee, subject to the council’s referral criteria being met.

Lawful process: solicitor Michael Harman

This is all in line with established planning case law and it seems only right that those who chose to approve this unsustainable over-intensification in the first place should be tasked with determining its future.

Councillors should now be made to give full consideration to all the development’s real failings and acknowledge the very serious implications of the council’s lack of proper scrutiny first time around.

They should acknowledge the accuracy of the representations submitted by residents at that early stage, many of which were misinterpreted (or completely ignored) in the original council planning official’s report and presentation.

Michael Harman, a partner at solicitors Holmes and Hills, has written, “The planning authority should seek to learn lessons and ensure that procedures (and personnel) are changed to help ensure that the errors identified are not repeated, or are at least that there are more reliable checks in place (ie. stricter checks that follow lawful process and which are monitored and enforced).”

Not shown: this is a view of the development at 54 Arkwright Road you won’t find on any marketing bumpf

Of course, 54 Arkwright Road is far from an isolated case in Croydon, and the pattern continues in respect of other developments.

In each example, planning permission has been obtained to demolish a single private residence or family home and replace it with a block of flats or maisonettes, and these are generally below the policy threshold required to provide affordable housing.

Croydon’s “town crammers” then embark on what seems now to be their default approach to applications where destruction or construction has already started on site.

• They readily invite applications seeking to retrospectively regularise an unauthorised form of development. Though only if residents complain.
• They validate “non-material” or “minor” amendment applications to regularise unauthorised forms of development that are already built (meaning that the applications are properly retrospective).
• They fail to enforce, allowing works to continue on site.
• They typically sit on applications for months before making a decision, allowing building to progress further, to be completed and, in some cases, occupied.
• They grant permission even though complaints from residents have identified conflict with approved plans or failures to meet the requirements of the relevant planning policy.
• Planning officials’ reports frequently contain identifiable errors in the decision-making process or no real discussion or assessment of the application against relevant development plan policies or material considerations.

The Judicial  Review claim on 54 Arkwright Road also referred to “error of fact”, in that, “By either failing to realise, or failing to take into account, the fact that the Decision approved a significantly taller building, the Council fell into error.”

There will be many Inside Croydon readers I’m sure who can identify with that, looking at similar development(s) near (but not too dear) to them.

Too tall: 12 The Ridge Way is significantly higher than was in the plans approved by the council. There has been no enforcement action

Michael Fry, the barrister acting in the Judicial Review case, said, “The council’s unlawful approach to the application is symptomatic of the council’s approach to development not in accordance with approved plans within its area and thus of wide public importance.”

What other developments might struggle to meet proper, higher standards of scrutiny over the planning department’s approvals?

For 12 The Ridge Way, another Sanderstead site not too far from Arkwright Road, we now have a measured survey that, among other things, clearly demonstrates that the “as-built” block of flats sits significantly higher in relation to the adjoining property than was shown on the drawings approved by the planning department.

Yet while the deadline for determination of a current application passed almost three months ago, works on site have (as usual) been allowed to continue by Cheesbrough’s not-fit-for-purpose planning enforcement team.

At 98 Hyde Road, in Riddlesdown, a new building was part-erected, in the wrong place, and then demolished.

Overshadowing: scale drawings illustrate how the development at Briton Crescent dwarfs neighbouring homes

Another structure has now been erected on that site to roof level, supposedly in the right place but in very obvious and significant conflict with approved drawings and with the determination of “discharge of condition” and “non-material amendment” applications now five and six months overdue, respectively.

My complaint to Heather Cheesbrough about the unlawful development across the road, at 89 Hyde Road, remains unanswered after seven months, while of course, unlawful building works continue.

At another site in Sanderstead, 22 Briton Crescent, the main structure has been in place since December 2020, but the council’s decision on what the developers call a “minor amendment” application in January this year is now seven months overdue.

The council employee who is the case officer here is the same as in the now quashed application on 54 Arkwright Road: Joe Sales. As it happens, Sales was also the official who (wrongly) recommended approval of the last application submitted to “regularise” (some of) the many breaches which we rported on in March 2020 at 4 Rectory Park.

Up for sale: flats at 43 Downsway have not met all planning conditions, but are on the market anyway

At 43 Downsway, which is apparently finished (by the same building contractor who has worked at Arkwright Road), one “pre-occupation” condition has not yet been discharged and the decision on an inappropriate “non-material amendment” application is five months overdue.

Yet the flats have been up for sale since mid-June, with at least one sold, if the estate agents’ boards are to be believed.

At 28 Grasmere Road, where the council’s non-enforcement of a blatant breach has been taken to ridiculous levels, two planning applications remain undetermined after more than a year. The majority of the flats there, meanwhile, have been sold and occupied. How can this happen? Are the new owners fully aware of the situation? Are their mortgage lenders, or their insurers?

It was with regard to ongoing complaints about another development on Arkwright Road, at No34, that a planning enforcement officer,  John Penn, recently told a neighbour that, “Following a legal challenge about another site in the borough, the council is awaiting guidance about how this and other sites will be resolved.”

But guidance from where?

Challenged: Croydon Council’s planning director Heather Cheesbrough

Surely not the same council in-house legal department which has allowed this situation to fester over several years?

And nor can it come from council director Cheesbrough, who when claiming the “highest personal integrity and professionalism” within her department, must have known that that same  department’s work was subject to a serious challenge in the High Court, while at the same time she was herself  also trying to claim professional affiliations to which she was not entitled.

I should clarify here that the developments detailed above are but a few of those I know to be as much “in breach” as 54 Arkwright, or more so, and yet are being “managed” in a similar unlawful manner by Croydon’s town crammers. I’m quite sure that there will be a great many more examples of which I have no direct knowledge, where residents or residents’ associations have had strong cause to challenge on similar grounds, though probably not (yet) through the courts.

I am advised that each and every time Cheesbrough’s planning staff mismanage retrospective applications in this way, Croydon Council could and should be challenged, in the same way as I have managed successfully by Judicial Review, and on every occasion, the council should be made to pay all and any reasonable costs incurred in doing so. This could prove to be a systemic problem that will be very costly to fix.

It does seem that the only way to stop this contemptible abuse of the planning system is through the courts. Residents should not have to do this. The council should listen to us, but choose not to.

Salaried staff and elected representatives need reacquainting with the Nolan Principles, which are supposed to govern conduct in public office. Those responsible for the council’s adoption of this “course of dealing” should be held to account, including officers who have now left its employ, and any councillors, even if they are not be seeking re-election in 2022.

Perhaps, just perhaps, the outcome of the Judicial Review might lead to fewer officer reports containing strategic ignorance or intellectual dishonesty, and more evidence-based decision-making, instead of the biased, opinion-based reports which have become routine.

Many (if not all) of the properties that have been developed in Croydon under its slack planning department’s regime have been marketed using the government’s Help to Buy scheme.

But under Homes England’s “Help to Buy Equity Loan Funding Administration Agreement”, any equity loan funding that is made available is subject to the following very important condition:

“Confirmation by the Developer that … all applicable pre-commencement and pre-occupation planning conditions within any and all Planning Permissions and/or Planning Agreements relating to the Eligible Dwelling have been satisfied.” Those are our italics, for emphasis.

Note that: all planning conditions must be satisfied, and this has to be confirmed by the developer.

As Croydon’s planning portal clearly shows, with many of these developments there are long-overdue decisions on applications that were submitted to “regularise” what has already been built.

Given the facts to hand, and the Judicial Review ruling, anyone considering buying any new build in Croydon would do well to adhere to the age-old maxim of buyer beware.

Read more: Director of planning’s bogus claim over Institute membership
Read more: Developers given free rein from a council with no controls
Read more: Objections? What objections? Opposition? What opposition?

Become a Patron!

• What’s on inside Croydon: Click here for the latest events listings, powered by Now Croydon

• If you have a news story about life in or around Croydon, or want to publicise your residents’ association or business, or if you have a local event to promote, please email us with full details at inside.croydon@btinternet.com
• Inside Croydon is a member of the Independent Community News Network
• Inside Croydon works together with the Bureau of Investigative Journalism, as well as BBC London News and ITV London
  
• ROTTEN BOROUGH AWARDS: Croydon was named the country’s rottenest borough in 2020 in the annual round-up of civic cock-ups in Private Eye magazine – the fourth successive year that Inside Croydon has been the source for such award-winning nominations
• Inside Croydon: 3million page views in 2020. Seen by 1.4million unique visitors