Planning department judged ‘at fault’ over boundary dispute

Emails from residents unanswered, six-month delays in dealing with a formal complaint, and a planning department that ignored a court order. Just another episode in the regular shambles at Fisher’s Folly

Another day, another ruling from the Local Government Ombudsman against Croydon Council.

‘Professional’: Heather Cheesbrough

This time, through a relatively minor boundary dispute between neighbours, the Ombudsman has exposed massive levels of incompetence in the council’s planning department.

Croydon’s planners have recently lost a significant Judicial Review case in the High Court for their failure to enforce conditions on developments around the borough. But this latest ruling from the Local Government Ombudsman effectively declares the planners to be utter buffoons.

The ruling stems from a long-running boundary dispute between three neighbours, where one of them started to build a garage on land that they do not own. The council effectively encouraged this illicit building work to go ahead after it granted planning permission, because the planners never bothered checking on the Land Register or other certificates to confirm the property ownership.

The two neighbours who really owned the property even had a court ruling in their favour over the incursion on to their land.

As a result of this case, the council has been forced to pay out a modest amount of compensation to the two wronged neighbours, while giving an undertaking to change its official complaints procedures.

Heather Cheesbrough, the six-figure salaried council exec in charge of the planning department, recently lectured elected councillors, telling them that, “All the planning officers in the team have the highest personal integrity and professionalism.”

This latest Ombudsman’s decision against Cheesbrough’s department would appear to contradict that contention.

In the mixer: if you spot some unwelcome building work going on on your property, you might want to ask the council if they have granted planning permission

For reasons that should be obvious when dealing with local authorities and their planning departments, the Ombudsman tends to try to avoid becoming enmeshed in disputes between the public and their councils’ planners.

Which is what makes this ruling, published yesterday, all the more extraordinary in its criticism of the council planners’ incompetence and lack of professionalism.

Routinely, the Ombudsman’s office, when issuing its rulings, avoids identifying the complainants. Their reports are deliberately written in a dry, officialese.

But with this report, it is impossible not to imagine the impartial, objective observer drafting it raising their eyebrows while muttering aloud, “They did what??!!

The Ombudsman’s report says, “I have called the complainant ‘Mr X’. He is supported in his complaint by ‘Mr Y’. They own land built on by ‘Ms Z’.

“They complain the council should not have given Ms Z planning permission to build on their land in January 2020. Mr X has previously gone to court and won orders declaring Ms Z has built on his land and entitling him to remove structures built there.

“But he says because the council gave Ms Z planning permission, she undertook further building work.

“He and Mr Y will now incur more time, trouble and expense in returning to court to seek a further order for removal of building work.

“They say this is necessary as the existing court orders do not allow them to remove the further building work undertaken by Ms Z after she received planning permission.”

Section 65 of the 1990 Town and Country Planning Act requires that a council “shall not entertain” a planning application that does not meet the certification requirements set out in the Town and Country Planning (Development Management Procedure) (England) Order 2015. This includes seeking planning consent on land that is owned by someone else.

And as the Ombudsman points out, “It also says that anyone who knowingly or recklessly issues a false or misleading certificate is guilty of an offence.”

The Ombudsman’s report explains that Ms Z had been seeking to build a garage since around 2016. “Mr X and Mr Y contested Ms Z’s garage encroached on land in their ownership. They went to the High Court and in April 2018 obtained a court order which confirmed this. The court judgement established the boundaries of Ms Z’s house. It found that at its southern and western boundaries, the garage trespassed on land in the ownership of Mr X or Mr Y.

“The High Court ordered that Ms Z should therefore remove three steel stanchions outside the boundary of her house which formed part of the frame of the garage. It said Mr X could return to court and seek an order permitting him to remove the stanchions and recover the costs of this if Ms Z failed to comply. The court also said it would link a copy of its order to the Land Registry record alongside an expert report which identified the boundaries of Ms Z’s property.”

Ms Z appealed the court judgement, and lost. “Ms Z partially removed two of the three stanchions and left the third one standing complete. Consequently, Mr X returned to court seeking an order for their removal. The court granted this in January 2020,” the Ombudsman’s report states.

It then adds, in what appears to be especially restrained understatement: “One day after the court granted this order the council approved the planning application at the crux of this complaint.”

It was not as if the council’s planners had not been on notice about the on-going boundary dispute. In May 2018, the council opened a planning enforcement investigation to consider various potential planning breaches committed by Ms Z. This included the garage under construction to the south of the plot.

The council found the size of the garage then under construction exceeded that allowed under “permitted development” rights, where a developer does not need any planning permission. The council invited Ms Z to apply for planning permission retrospectively, which she did 12 months later, in May 2019.

“With her application, Ms Z presented ‘Certificate A’ – saying she owned all the land covered by development,” the Ombudsman writes.

“Both Mr X and Mr Y learnt of Ms Z’s planning application and objected. They made the council aware of the dispute over land ownership and the 2018 court judgement.

In June 2019, the council contacted Ms Z’s planning agent querying if she had presented the correct certificate…. The agent replied saying Ms Z had completed the correct Certificate A and would not be building outside the boundary of her land.”

Unimpressed: Croydon Council planners’ handling of the neighbours’ boundary dispute saw the Ombudsman being sharply critical

By this stage in the Ombudsman’s report, the author is clearly warming to the theme of the mind-numbingly, staggering incompetence of the Croydon Council planners.

“I note that at no point in the application did Ms Z present a plan showing the footprint of the garage in relation to the property boundaries or surrounding land. The only plan showing location was a ‘red-line’ plan showing the outline of the whole curtilage of Ms Z’s house at 1:1250 scale.

“It is not clear the council gave any further consideration to the certification issue before January 2020 when it determined the application. A planning officer’s report accompanying the decision noted Mr X and Mr Y’s objections, based on their ownership of some of the land on which Ms Z had built the garage. But it said this was a ‘civil issue’ and as such not a relevant planning consideration. The report said that a planning permission would not define the property boundaries.

“The report discussed the perceived planning merits of the application and found no reason to refuse it.”

Three days after the council approved planning permission, Mr X got back in touch with it saying Ms Z had recommenced building the garage and was committing a further trespass on his land.

Mr X also contacted Ms Z directly asking her to stop the trespass. The reply Mr X received from Ms Z said “we are building lawfully and within [the] granted planning permission”.

No reply: Katherine Kerswell is the £192,000 per year chief exec of a council that is slow to respond to resident complaints

By November last year, Mr X made a formal complaint. The council said it would reply before the end of December.

It will surprise no one who has had to deal with Croydon’s cash-strapped council that it failed to do so.

In January and February this year,  Mr X sent the council three emails, chasing a response. The council failed to reply to any of them. So, in March, Mr X asked to escalate his complaint to Stage 2 of the procedure because of this delay.

It took the council another two months to reply – six months after the original complaint had been lodged. The council’s excuse was that the impact of covid on the council’s working practices and due to the council having cut staff. made staffing cuts because of budgetary constraints.

When the council finally got round to replying to the Council Tax-payer, it claimed that the court orders gained by Mr X and Mr Y were “immaterial” to its consideration of the planning application.

The council has told the Ombudsman that it is seeking to improve its complaint handling, by:

  • undertaking a review of the members’ enquiry process (even elected councillors struggle to get prompt replies to their questions)
  • recruiting planning staff
  • having more team managers respond to complaints
  • implementing a new complaints management system and “improving communication with residents over delays in complaint handling

In their findings, the Ombudsman said that the council was correct that land ownership is not a relevant planning consideration, “But this does not mean the question of land ownership has no relevance to the planning process…

“The law is clear that applicants must produce certification to show whether they are building on land they own or which is in third party ownership. The council must pay attention to which certificate the applicant provides as it must not ‘entertain’ an application with incorrect certification.

“There is no discretion in that. The law uses the word ‘shall’, meaning it is mandatory on the council to reject such an application…”

“I cannot see the council scrutinised Ms Z’s service of Certificate A through any such process here. It has provided no explanation or audit trail for what happened in the seven months between Ms Z’s agent maintaining she had provided the correct certificate and the council issuing its decision.

“An examination of the council’s enforcement log suggests the Council only issued a decision in January when its enforcement officer queried at that time with the planning officer why they had not taken a decision on the application.

“So, I find the lack of scrutiny of Ms Z’s submission of Certificate A is a fault.”

The Ombudsman says that there were two key points that the council ought to have considered. The application was retrospective, and the council had photographs from May 2019 that showed the strutural stanchions on Mr X and Mr Y’s land.

And the council knew of the April 2018 High Court judgement and the documents placed on the Land Registry records.

“The facts about land ownership in this case were clear and in the public domain,” the Ombudsman report states.

“In May 2019 and all points after that, it was clear at least some of the garage structure was on land outside Ms Z’s ownership.”

The council “should have gone further”, the Ombudsman says. “It would not have taken much to point out to Ms Z or her agent the structure under construction was already on land outside the property boundary.”

The Ombudsman says that the council has accepted its findings, and will pay Mr X £750 in recognition of his distress, time and trouble, and pay £500 to Mr Y, with apologies to both. Booth seem likely to be left considerably out of pocket because of the necessity, through the council’s actions, of undertaking anothr court case to get Ms Z’s garage off their land.

“The council has also agreed to try and learn lessons from this complaint,” the Ombudsman states, probably more in hope than expectation.

For a start, there’s nothing to be found anywhere on the council’s clunky website that reports any part of this latest clusterfuck by the planning department.

Indeed, it has been Croydon Council’s policy, under successive chief executives Nathan Elvery, Jo Negrini and now Katherine Kerswell, never to publish Ombudsman rulings against the authority. Because, after all, that kind transparency and honesty about dealing with its failures might catch on, and could even lead to the council learning from its mistakes, and who at Fisher’s Folly would want that?

  • Are you Mr X? Or Mr Y? If you are, it would be great if you could get in touch and let us know how you’re getting along with the council and Ms Z

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12 Responses to Planning department judged ‘at fault’ over boundary dispute

  1. CentralCroydon says:

    What a shit show the planning department is. Utter incompetence and no one ever held to account.

  2. Nick Davies says:

    “having more team managers respond to complaints”

    Am I missing something? The implication is that there are too many complaints for the current management to handle, so we’d better get some more £50k a year (and the rest) managers to fob people off. If they’re going to hire more managers isn’t it better that they understand “quality management “, ISO 9001 and all that, to ensure that complaints seldom arise in the first place?

  3. Lancaster says:

    Accountability stopped in public service with William Whitelaw and the Michael Fagan incident. No public servant has understood their responsibility or how to show contrition since.

  4. I’m afraid this is just the tip of the iceberg for the Croydon Planning department.

    There are a large amount of formal complaints about their planning practice that are on file but delayed internally – once responded to they then go onto the ombudsman – you can see why Croydon Planning Department is choosing to stall these internally.

    But they will see the light of day and the ombudsman will direct responses.

    But, is there any surprise about this?

    Planning delivery has always been a weakness at Croydon Council and is the major factor in the recent referendum for a mayoral election.

    Other than essential front line services, Planning is the thing that Croydon Council has let down the people of Croydon the most on and continues unaddressed at a high level in the council. Until it is, it will exponentially grow as the major problem in our borough.

    And Katherine Kerswell remains inflated but silent on the matter and Heather Cheesbrough is in professional denial (but we’re not exactly sure what her professional qualifications are??)

  5. John Harvey says:

    There has long been a lack of clarity as to whether a planning authority has to to get involved in a dispute about land ownership or can leave it to differing owners to sort out

    This was complicated by the Land Registry being set up in 1862 on the basis that registered plans would be definitive. But this was changed to “general” boundaries in 1875 which are only indicative and open to challenge. They remain so.

    The Government is introducing many improvements at the Land Registry but is not addressing the status of plans. There is a process under which registered owners can obtain definitive boundaries from the Registry but at a cost

    With building plots becoming ever smaller and in need of precision and cartographic technology advancing there is a strong argument for a national survey giving reliable boundaries to all plots of land. But lawyers who get fees from boundary disputes will oppose this

    Having reliable and continuously updated INTERNAL plans of all properties should also be an additional (but separate) part of fire safety improvement post Grenfell

  6. PRAKASHBHAI PATEL says:

    I got neighbour from hell and Croydon council don’t wish to do anything. He has built out building in his back yard without lawfully planning. Got away with it. He has build wall in my front garden in my property.

    He thinks he is smarter than law he know law order more than anyone.

  7. Lewis White says:

    Re Mr. Harvey’s comment above, I would comment that Land registry plans (at least, those shown on the Land Title documents) rarely if ever show the ownership of a boundary fence. As the plans on larger properties can be at very broad scale (big site, small plan) even the thickness of a thin pen line showing the land boundary as drawn on plan can translate to a wide line on the ground even if set out by a land surveyor. A curved boundary can be very difficult to establish unless there are features shown on the Title map which are still in existence on the ground.

    Hence the importance of having boundary markers such as concrete posts or brick pillars at all corners of a property, and making sure that neighbours don’t nibble away and steal a sliver of land by moving a fence line. Walls tend to stay put. Wooden and mesh fences can rot away.

    Perhaps a Government could bring in a requirement for new title pans to accurately plot all boundaries and building plans on NEW and REBUILT properties using modern surveying methods down to a very high level of accuracy eg by Satellite co-ordinates. Over a hundred years, maybe 33% of the country’s existing properties would come up for renewal.

    Re Mr Patel’s comments above, it is actually frightening as to how much of the plot that can be filled up with sheds, under what is termed “permitted development” under “The Town and Country Planning (General Permitted Development) (England) Order 2015”

    Worth looking up the UK Government Website……………

    under its pages titled:-
    The Town and Country Planning (General Permitted Development) (England) Order 2015

    https://www.legislation.gov.uk/uksi/2015/596/contents

    particularly as set out under SCHEDULE 2
    Permitted development rights

    PART 1 Development within the curtilage of a dwellinghouse
    Class E – buildings etc incidental to the enjoyment of a dwellinghouse
    Class F – hard surfaces incidental to the enjoyment of a dwellinghouse

    PART 2 Minor operations
    Class A – gates, fences, walls etc
    Class B – means of access to a highway

    There are rules about heights of structures, their maximum height alongside a boundary, the area of land that can be covered with sheds without the need for planning permission, and heights of walls, fences gates etc.

    Mr Patel might be best advised to contact a qualified property ( legal / building surveying) professional to check whether his neighbour has a legal right to build the wall on Mr P’s land. The Planning department can advise on height of wall needing Planning Permission (PP) , which will depend on whether the wall is alongside a highway.

    The other key Legislation is the Party Wall Act , affecting construction on and near boundaries.
    see https://www.gov.uk/party-walls-building-works

  8. Ian Clarke says:

    Who says slapstick is dead? Those of us who deal with Croydon’s planning service are used to their incompetence but this one reaches a new level.

  9. Ben Pratley says:

    This article really sticks the boot in, but no Planning Department has the legal power to defend private land rights. All Planning Departments can (and do) grant planning permission on land that is not owned by the applicant. The only requirement is that the correct Certificate is completed by the applicant (which may not have been done here), but this is pretty minor. Ultimately it seems very like a boundary dispute between neighbours and Planning Departments are not best placed to become involved.

    In the interests of openness, I have worked for 2 Council Planning Departments (not in London). It seems like this website loves to stick the boot in on the Croydon Planning Department. However, I cannot see that a lot of what they are accused of here is entirely within their control, and they do not appear to be significantly worse than many other Planning Departments (although admittedly may be a bit too relaxed regarding over-development). Also, with workloads the way they are nationally most Planning Officers simply don’t have the time to deal with things as closely as they would like.

    I am so glad I don’t work for Croydon Planning Department. Other Council workers seem to get more sympathy from this website, but not the Planning Department. However, Planning Departments have seen some of the biggest budget cuts of any Council Departments (although of course I don’t know if this is the case at Croydon), so maybe its not a suprise that things are starting to fall apart at the seams. I would put out a plea to maybe cut the officers a bit more slack, particularly the ones, at my lowly sort of level, that are not managers, have no control over how many applications they are allocated, and also have no real control over the policies they are required to apply, or the Planning Laws that govern their powers.

    • “Putting the boot in”? You’re having a larf.

      This report simply relates what the Local Government Ombudsman says. And if they say that Croydon’s planners are, at best, negligent, or at worst, incompetent, then perhaps it is well overdue that suitable action is taken at Fisher’s Folly.

  10. WM says:

    Silverleaf Developments made a planning application that included my land. This was submitted to the Council and verified by the Planning Team without my knowledge. I knew nothing about the development – I found out afterwards by way of a backdated letter. The Council confirmed that the developer must have served notice before making the planning application. Heather Cheesborough said in writing “The application was accompanied by an application form in which the applicant had signed Certificate B to state that the notice had been given” even though it had not (and she was given numerous pieces of evidence including a postmarked envelope) and that I had been given “notice of the forthcoming planning application” even thought by her own admission she knows that I knew nothing about it until after it had already been made. The gaslighting is astonishing.

    • Ben Pratley says:

      To WM – then you, as land owner, have far more powers to stop development on land owned by you, than the Council as Local Planning Authority has. I always tell people that planning permission does not automatically grant permission to build – it is just one piece of the jigsaw. It is up to the applicant to make sure they have all the other permissions in place, such as the permission of the land owner, Building Regs etc. The only responsibility the Planning System has is to ensure that correct notice has been served on land owners.

      From your message it appears that there was some dispute over whether notice was served on you. In that case, and its one persons word against another, I would suggest that the Council (or someone) should warn the applicant that, if it turns out that the notice was not served, they risk their planning permission becoming void. Although, as this website appears to have put my actual name, rather than the alias as I thought it would, I should add that this is just informal advice and you may wish to get your own professional planning or legal advice.

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