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Planning department judged ‘at fault’ over boundary dispute

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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:

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?

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