The enforcers: residents making plans for council court action

Is something shifting in the Town Hall planning department? Amid news of the exit of a senior manager, and of director Heather Cheesbrough correcting her false claims on her online CV, and now a High Court ruling against the council’s lack of enforcement, STEVE WHITESIDE checked out the latest meeting of the planning committee

Knock it down and start again: developers broke so many rules on Hyde Road, they were forced to demolish their work. Their second effort is not much better

Every now and then, there appears a glimmer of hope that at some point the council’s planners’ rampage through the borough’s suburbs might be brought to an end. At the latest planning committee meeting, there was another flicker, maybe two.

On that particular evening, what has typically become a routine “win” for developers – the demolition of a large family home and replacement with a block of never more than nine flats, none of them “affordable” – was refused by councillors who decided to go against the planning official’s recommendation.

The decision was made over an application for 41 Fairdene Road, Coulsdon. The council’s decision notice states that, “The proposed block of nine flats would be out of keeping with the character of the area and fails to respect local character and heritage, contrary to policies SP4, DM10 and DM18 of the Croydon Local Plan 2018 and policy D3 of the London Plan 2021.” They are our italics, for emphasis.

Fair deal for Fairdene: planning officers had their recommendations rejected

While acknowledging that the building proposed was larger than the neighbouring properties, the case officer, Muhammad Saleem, advised that “the height is compliant with policy and the approach to the massing with the hipped roof form is considered to sit well within the streetscene. The design approach is high quality”.

In his presentation to the committee, Richard Freeman, the council’s development management’s south team leader, confirmed that advice.

Developer-friendly: Richard Freeman used to work with the agent of the applicant

The councillors on the committee were having none of it, however. One, Clive Fraser, said “It just jars somehow. This reinterpretation just doesn’t work. In my view, it’s not a good design.”

Another, Leila Ben-Hassel, said,  “I actually personally love the design. I wouldn’t call it poor quality. I think it is beautiful, but for the wrong location.”

In the end, eight councillors voted to refuse permission with one abstention, the chair, Chris Clark.

So have councillors finally remembered (or been reminded) that the “Suburban Design Guide” is not adopted policy (that is, something that they must implement), but rather a supplementary planning document, SPD2 (something which is optional)?

Although it adds detail to the policies in the Local Plan and is a material consideration in planning decisions, SPD2 is not actually part of the development plan.

Just because a design is pitched as “sympathetic and faithful”, “innovative and original”, or a “contemporary reinterpretation” – all of which were wheeled out in this case – the councillors on the committee appear to have woken up to the possibility that if they think a development proposal doesn’t “fit”, they are allowed to say so.

Spot the difference: the developers’ proposals for 21 Fairdene Road offered nine flats in a four-storey building on a street of mostly two-storey houses

The councillors response this month is surprising, given what was discussed by the committee as recently as July when they deliberated over a similar piece of over-development, this time at 56 West Hill, Sanderstead.

Even though the applicant there had also sought to follow one of the recipes served up in the council’s much-criticised SPD2, councillors openly discussed whether they could or should refuse permission purely because they didn’t like the way it looked.

They had again been persuaded, by Freeman as it happens, that any and all breaches of adopted policy identified in the submission could be properly sorted out later by planning officers (like Mr Freeman) through the discharge of conditions. But as we have reported previously, this approach, with the planning department working cosily with developers, rarely enforces all the conditions.

On design, Ben-Hassel told the July meeting, “I’m not a fan myself of reinterpretation style that tries to then mimic the traditional form. But that is subjective, that is my personal opinion.” The main problem, the committee felt, was that if they refused permission just because they didn’t like the “style” and the applicant went to appeal and won, then the decision would be overturned and costs would be awarded against the council.

I emphasise the would because, in fact, that is not necessarily the case. Council planning staff would and should have known that, but they chose not to say, so with their responsibilities to tax-payers in mind, in July the councillors approved that application.

Now maybe there was a real, material difference behind the reasoning in these two decisions. But I can’t see it.

Perhaps the difference on November 18 was that the three-minute presentation for the developer was provided by council planning department old boy, Jan Slominski, now working at HTA Design.

Demolition case: this family home on Fairdene Road is typical of many that have been demolished

Or could it be that councillors on the committee are starting not to take everything they are being told at face value, be that by the applicants and their agents but also by the council’s own planning department, including developer-friendly director, Heather Cheesbrough?

Which brings me to another encouraging thought that I took from the latest planning meeting: councillors finally aired residents’ long-standing concerns about the service, or lack of it, provided by the council’s planning enforcement team.

In response to a recent investigation by the Local Government Ombudsman, Croydon Council recognised that its team had not met its “usual” service standards, claiming that the reasons for this in “recent years” were that:

  • The planning enforcement service was affected by the effects of covid-19, and
  • Stage 1 (complaint) responses come from within the relevant department, and the council, like other authorities, is finding it difficult to find and keep qualified planning enforcement officers. The staff shortage has led to service difficulties including delays in response times.

But as many of us know to our cost, the planning enforcement service has not been fit for purpose since long before covid-19.

As for the council finding it difficult to retain staff, perhaps the working conditions might just have something to do with that. Are enforcement officers allowed to perform their duties properly? Can officials refuse to lie or ignore blatant breaches of planning conditions?

High rise: this proposed block of flats at West Hill, Sanderstead, was acceptable in July

Can planning officials issue enforcement or stop notices when they should? Do they act primarily in the interest of residents, or the developer?

According to the Planning Enforcement Handbook published by the Royal Town Planning Institute last year, “Without enforcement, our places, our environment and our quality of life would all be the poorer. At its heart, the planning system relies on trust and our enforcers provide the backbone of this trust.”

The non-performance by planning enforcement officers was a key part of the “course of dealing” identified in the successful Judicial Review claim against Croydon Council over 54 Arkwright Road.

The enforcement officer in that case left the council in December 2020. As far as I am aware, he was never replaced.

As Inside Croydon’s loyal reader will be aware, I am working with other residents with regard to unlawful developments. As part of that work, I have come across conduct that is certainly not becoming of any council employee claiming to operate with “the highest personal integrity and professionalism”.

At 98 Hyde Road, the enforcement officer refused to accept that the building was being built too close to Copthorne Rise. They allowed the works to continue for many months, until finally, after several complaints, the then head of development management, Pete Smith, was forced to accept reality. What had been built had to be demolished.

Over-reaching: At 12 The Ridge Way, the planning permission allowed for the new build to be 35cm taller than the neighbouring building. What’s built is 175cm taller

It has now been rebuilt, though it is still not in accordance with the approved drawings (that is, it is still unlawful). But hey-ho, work continues.

At 12 The Ridge Way, it has been clear for more than six months that the ground floor and roof level of the new building would be far higher in relation to the adjacent house than was approved when the development was granted planning permission.

In September, the enforcement officer told residents that based on an “independent” survey, one arranged by the developer, the council was satisfied “that the building is being constructed in the correct place, and is currently no higher than approved.” When asked to ensure that this “independent” survey was published, the council officials (along with his other highly professional officer colleagues) ignored residents. Sound familiar?

The officer later claimed that, “The two properties either side are not surveyed by the developer and are a ‘representation’ about what is there.

“The developer only has to submit accurate plans for what is being constructed inside the red lines of the submitted site plan, which in this case is the curtilage of No12.”

So months after submission, the substantive complaint has still not been properly investigated. My own independent survey shows that relative to the neighbouring property, the roof of this development is nearly 1.5metres higher than was approved when planning permission was granted.

At 22 Briton Crescent, complaints were made as far back as 2019 that the building was positioned incorrectly on the site. Yet it appears that the case officer (Joe Sales) has done nothing to progress the council’s determination of a retrospective planning application that was validated at the beginning of 2021.

Last week, I asked the enforcement officer to “confirm the date of any planning contravention notice, enforcement notice, temporary stop notice or stop notice issued with regard to the above development”. The officer replied that they could “only confirm at this stage that the planning enforcement case file is on-going, and the site is still under investigation”.

Later in the day, they added, “At this stage I cannot give you further information about this on-going investigation, but it is very much a live case.” Which says a lot for the planning department’s lack of public accountability.

Anyone else think that they might be hiding something?

The non-enforcer: head of planning Nicola Townsend

Note, John Penn was the officer involved in all the above examples. You do have to wonder whether all Croydon’s planning enforcement officers are as naturally obstructive and apparently incompetent as Penn, or whether they are instructed to act in this way.

Given the performance at this month’s planning committee meeting by Freeman and his boss, Nicola Townsend, it is hard to reach a view that the situation might improve any time soon.

“We make sure that all the planning conditions are properly implemented,” Freeman said, which is totally untrue. He clearly can’t help himself.

Townsend chipped in: “I think it is a little wrong to say that we will just retrospectively grant a planning application if someone does something wrong. If we do have an enforcement breach, we have to look at that breach. We have to look at the extent of the harm and whether it is in the public interest to take enforcement action or what enforcement action we could take.”

This is just more defensive flannel, to cover for a failed and failing service on Townsend’s watch.

Just like her old boss, Pete Smith, before her, Townsend appears to be in denial about the important part being played by her “planning enforcement” team in a perverse “course of dealing” with developments which are unlawful. Townsend also seems oblivious to the scale of the physical mess that the council’s chosen strategy has helped create across the borough and the harm it is causing to individuals and communities.

At the end of the latest planning committee meeting, it was announced that Freeman is to leave his job with the council. I suspect there will be very few who have witnessed his offensive and misleading performances at committee who will be sorry to see him go.

Yes, there are those glimmers of hope, but if we leave things to the council directors, managers and staff who have helped create this mess, it seems unlikely that there will be any significant change of course.

In which case it looks like I’ll be heading back to court, and from what I’ve been hearing I won’t be alone.

Read more: Buyers beware: High Court judge puts planners in the dock
Read more: Director of planning’s bogus claim over Institute membership
Read more: Developers given free rein from a council with no controls

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10 Responses to The enforcers: residents making plans for council court action

  1. Jamie Sylvesters says:

    I hope Heather didn’t put the same qualification on her CV when applying for the job at Croydon Council.

  2. What’s happening in Croydon Planning Department will not be put right until there’s a change of its leadership. The department is directionless, officers side with developers, residents are ignored and lied to, enforcement is a complete farce and nobody answers emails or returns phone calls.

    Richard Freeman is particularly directionless; he lacks planning instinct and unfortunately has picked up too many of Cllr Paul Scott’s tropes over the years. A Planning Department with clear direction would have pulled Freeman into line – this hasn’t happened.

    And let’s not dismiss too readily the damage SPD2 has caused and will continue to cause; we know it’s guidance only but it is the reason much of our borough, particularly in the south, has been built over indiscriminately. It remains an open door for developers and planning inspectors will be referred to it by those who go to appeal (and inevitably win).

    Also, let’s not get too carried away with Fraser and Ben-Hassell refusing the application on Thursday. These two, whipped by Cllr Paul Scott, have nonchalantly waved through dozens of 9-flat residential private residential schemes (with zero affordable housing) which has fucked up large swathes of our borough and there are many more in the pipeline. Don’t forget Fraser and Ben-Hassell are now fighting for their political lives. Fraser saying “the design doesn’t seem right” is complete bollocks- the sooner he’s voted out of office, the better.

    Planning is the divisive subject in our borough, it’s been handled appallingly by officers and councillors, residents have been ignored on an industrial scale and it is the reason we are now going to have a mayoral election.

    Does Katherine Kerswell have an opinion on any of this? Silence.

  3. Ian Kierans says:

    Having had experiences of both Penn and Townsend I am not surprised. In fact I am still waiting for data requested under the freedom of information act. In January 2022 I will no longer wait and release evidence of wrongdoing that they have been offered but refused to view.

  4. Lewis White says:

    Interesting comment –
    The officer later claimed that, “The two properties either side are not surveyed by the developer and are a ‘representation’ about what is there…….
    “The developer only has to submit accurate plans for what is being constructed inside the red lines of the submitted site plan, which in this case is the curtilage of No12.”

    My observatiion is that drawings should be accurate, capturing both the new structure in total detail, and accurately plotting the adjacent houses’ locations, their elevational outlines and basic detailing, but also the relative ground and roofline levels betweeen proposed and the neighbouring properties.

    Without those key essentials, it can’t be possible for anyone– whether planning officer, councillor nor member of the public–to assess the potential impact of proposals on the context.

    Impressions are just not good enough when it comes to a new building. They might be OK for alterations that don’t create major changes.

    A difference in roof line “real as built” measurement of 1.75 m (1750mm) of the new building above the roof ridge of the adjacent existing house against the approved 350mm is a truly massive difference of 1400mm. That’s over 4 feet.

    I think that every new build or major alteration should be subject to a simple act of regulation — similar to an award under the Party Wall Act– as part of the planning and Building control process where key facts such as location of new buildings, rooflines and measurements relative to adjacent buildings are approved by Planning Permission, but inspected and signed off by a truly independent building surveyor.

    • Quite so Lewis, quite so!

      Which is why, on 20 July this year, I wrote to Penn (cc Townsend) as follows:

      “I note that the Council’s Validation Checklist (2018) includes the following:
      – The plans, drawings and other supporting information that describes your proposal should be comprehensive, accurate and unambiguous.
      – Applications that involve building works require … Street elevations showing the proposal in relation to neighbouring buildings.
      – On sites where there are existing (and/or proposed) changes in land levels, i.e. where a site is sloping, where neighbouring land is at a different height or where land levels are proposed to be changed, drawings of sections through the site showing the relationship to adjoining properties or land is required.

      I note also that the Detailed Checklist for use with Full Planning Applications, at Appendix 2 of SPG12 (Landscape Design), includes “Sections through the site indicating relationship of proposed scheme … to adjacent properties”.

      With the above and your comment about ‘representation’ … in mind, are you seriously suggesting that an applicant does not have to submit drawings that accurately show the relationship between the development and the adjoining properties, either in plan, elevation or section?”

      There was of course no response from Penn, or from Townsend, or from anyone else at Fisher’s Folly.

  5. Lewis White says:

    Hi Steve, I think I made it clear that accuracy is vital in all cases. The only case where I think an “impression” of the adjacent buildings might be sufficient is in cases where minor elevational changes are proposed on the property for which the application is being made. In all other cases, I would say that a measured drawing is needed.

    So, in any new build situation, or major alteration, I would say that it is vital that every drawing showing all of the four elevations normally given (front, back and 2 sides) , should show the context accurately, meaning that the ground and roof lines , the building outlines and other key elevatinoal features of all neighbouring buildings should be shown — and that they should be properly measured by an surveyor. Plus of course the proposed development in full detail.

  6. Accuracy, yes, absolutely Lewis! But what we’re really talking about here is HONESTY, or the lack of it.

    Honesty on the part of all developers would be lovely. Of course it would. But to check on that we must rely on “the highest personal integrity and professionalism” of Ms Cheesbrough’s officers … and therein lies a problem.

    We need those officers to HONESTLY check what is submitted by developers, to write HONEST reports that don’t mislead and to HONESTLY enforce when the facts speak for themselves. What we need is for Ms Cheesbrough and her officers to show residents some respect and to act LAWFULLY in their decision-making.

    I really don’t think that’s too much to expect, but it’s certainly not happening in too many cases.

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