Council planning approvals being ‘sold’ for £1,500 per flat

STEVE WHITESIDE, a former council planner, has been carefully monitoring development applications around the borough over several years. In the course of that work, he has observed a systemic move by the council to attach money-spinning legal agreements to approved applications

In black and white (and purple): Croydon’s ‘guidance’ on S106 ‘contributions’

Early last year, I noticed that it had become the “norm” in Croydon for planning approvals for smaller developments (less than 10 dwellings) to be subject to legal agreements to secure financial contributions from developers towards “sustainable transport”.

None of the applications with which I had been involved during 2018 to 2019 had been linked to such a requirement, and I could find no policy change that would warrant the introduction of what appeared to have become a standard “planning obligation”.

Here were applications being granted approval, with legal requirements attached requiring contributions to the council often running into five figures.

It was almost as if Croydon’s planners were “selling” planning approvals. Yet, as we have reported previously, the council was sitting on more than £20million-worth of unspent community levies.

There’s no suggestion at this stage of any unlawful conduct within the planning department over these payments. What appears to be happening is that the planning system is being “gamed” to generate additional income for the local authority, while granting planning permissions to schemes which might otherwise be deemed to be unacceptable.

According to the gov.uk website, planning obligations under Section 106 of the Town and Country Planning Act 1990, “assist in mitigating the impact of unacceptable development to make it acceptable in planning terms”. S106 agreements have thus become a means of planning authorities to get developers to pay for some aspect of local infrastructure.

But there are limitations on what kinds of obligations can be entered into, set out at Regulation 122 of the Community Infrastructure Levy Regulations 2010.

As confirmed in the council’s own guidance on S106 contributions, “Planning Obligations are always site specific and are negotiated based on the characteristics of an individual site and proposed development.” The full document is here.

Planning law: what Regulation 122 says about the use of planning ‘obligations’

In June 2021, as part of a formal complaint to Heather Cheesbrough, the council’s director of planning, about the application to develop 89 Hyde Road, I argued that the council official’s report on the application offered no justification for recommending a £13,500 contribution towards “highway management measures and delivery of sustainable transport initiatives in Sanderstead”.

When the legal agreement was finally published on the council’s website, I noted that in describing how the £13,500 contribution would be spent, the phrase “which could include but not limited to and Council exercising absolute discretion” had been inserted.

To me, this gave the council carte blanche to spend the “contribution” on anything, without restriction and not even necessarily within “Sanderstead”.

Planning permission, at a price: the developers’ CGI of their proposal for 158 Purley Downs Road

In March this year, following another very late publication of the related legal agreement, I decided to pursue a Judicial Review of the council’s decision on planning application 21/01619/FUL, for a development of seven houses at 158 Purley Downs Road.

The agreement again contained the words “Council exercising absolute discretion”.

One of the grounds for the Judicial Review was that the granting of planning permission on the basis of the legal agreement to secure a £10,500 “sustainable transport contribution” was unlawful.

The main, but by no means only, concerns here were that there was again no justification for that figure nor any clear indication of how the money would be spent. This appeared to be another case where the council had in effect “sold” a planning approval in order to boost one of its S106 “pots”, which could be dipped into whenever, to fund whatever and wherever.

It was only after the application had been considered by the planning committee and as a result of a Freedom of Information request about a different development that I discovered that the developers’ S106 contribution would likely be made up of £1,500 per dwelling. Neither the planning application nor planning official’s report on the application had actually mentioned the figure involved.

 

It was in the council’s response to my Judicial Review application that they took an early opportunity to tell the court that it ‘‘specifically denies” that I represent a “wider public interest” on planning matters in the borough.

My Judicial Review application was refused. Unhappy with the reasons given, I asked for a review and the decision was (at least in part) reversed and permission granted to proceed to Judicial Review.

For the next stage, the council was ordered to provide evidence concerning

  1. the manner in which the £1500/unit contribution has been calculated; and
  2. the manner in which the £10,500 contribution would in fact be spent.

That evidence duly arrived in the form of witness statements by two officials from Cheesbrough’s department.

The main evidence regarding the source of the £1,500 figure comes from “Witness A”, an officer from the Strategic Transportation Team. According to their statement, Witness A was employed by the council “in these proceedings”. It is unclear whether they perform any other duties.

Tidy sum: the agreement that was finally revealed after 158 Purley Downs Road was granted permission. The council has been slow to provide evidence of how this figure was arrived at

Witness A suggests that at some point in 2019, “it was becoming apparent to… the Strategic Transport Team that the spatial policies in the Local Plan and SPD2… meant that high levels of development and growth were taking place in suburban areas with low levels of accessibility to services public transport… and cycling networks”. No shit, Sherlock!

Objections to applications during 2018 and 2019 had consistently highlighted poor access to public transport. Meanwhile, the Strategic Transport Team had regularly not objected to the poor level of on-site parking, on the basis that having to find somewhere to park on the road would somehow encourage future occupiers to use other, more sustainable transport modes.

During that period, the permissions granted (of which there were many) did not depend upon securing a sustainable transport contribution. According to Witness A, that all started after Transport for London “withdrew funding resulting from their financial crisis due to covid”. Except that is not what happened. TfL only paused funding (in May 2020), and it was reinstated towards the end of the same year.

So according to Witness A, since sometime in 2020, “Croydon has been asking developers to mitigate the impacts of their developments through individual financial contributions on a case-by-case basis based on typical costs and related primarily to the size, PTAL rating and controlled parking zone status of a site”.

It is still not clear what these “typical costs” are, how they are adjusted on a “case by case basis”, or if any such adjustment took place in the case of 158 Purley Downs Road. Nor has Witness A explained how the £1,500 per unit relates to the size of this development, in terms of bedrooms and potential occupant numbers.

Bigger units usually mean more occupants. More occupants could mean more pressure on infrastructure, including sustainable transport. So why are the bigger units not charged more, or the smaller units less? The records show that they used to be.

According to Witness A, the £1,500 per unit figure is all to do with the Kenley Intensification Zone Transport Study carried out in February 2020.

Council’s defence: how Croydon has sought to undermine the case brought by the claimaint, Steve Whiteside, by claiming he is not acting in the public interest

That study proposed measures that might address existing transport-related issues in a small part of Kenley, as well as those “likely to be exacerbated by increased vehicle and pedestrian trips associated with the proposed growth of housing”.

According to Witness A, the calculation was based on a list of “transport and place schemes/mitigations needed to sustainably accommodate the level of growth underway/planned in Kenley”, then deducting the cost of “specific schemes bespoke to [Kenley] such as bridges and structures”, and what remained “divided by the anticipated number of dwellings proposed/committed/under construction in Kenley”.

And that gave the answer of £1,500 per dwelling.

Which might be fine for Kenley, but the area that was studied is far from typical of the rest of the borough. The study was never put out for any form of consultation, but now seemed to be used to apply to developments throughout Croydon.

Witness A’s statement, they say, was prepared with the assistance of “the Council’s solicitors”, though not any working on the council staff, but the outside solicitors… Browne Jacobson LLP.

Since this was the first time I’d seen this evidence, I needed to respond. I did more digging to inform a witness statement. Research suggests that the council’s guidance on S106 has never been formally consulted upon or adopted. It also makes no mention at all of financial contributions for “sustainable transport”.

Further research has discovered several instances of appeal decisions in which planning inspectors have concluded (using their professional, planning judgement) that a Sustainable Transport Contribution requested by the council on the basis of the Kenley Study would not meet the requirements of Regulation 122.

Research has also revealed that there have been figures used for Sustainable Transport Contributions other than £1,500 per dwelling. There’s even  examples where no contribution towards sustainable transport has been required at all, all similarly without justification.

I filed some Freedom of Information requests relating to the Kenley Study’s “costings”, the missing Transport Study for another development, at 52 Welcomes Road, and about the council’s S106 guidance. The council has failed to provide responses within the legal time limits.

Stalling: the council has delayed, possibly deliberately, responding to key questions raised in research for the Judicial Review

Such stalling by the council resulted in my evidence and witness statement towards the Judicial Review having apparently taken too long and permission to rely on my statement has been rejected. An application for permission to cross-examine Witness A at the hearing is now with the court. Of course, true to form, the council has objected, so we’ll have to wait and see.

The substantive hearing in the Judicial Review is scheduled for next Tuesday, December 6.

In a final shot before the hearing, the council’s lawyer has repeated that, “The Council… specifically denies” that I represent “any wider public interest”.

I remain sceptical of the application of the Kenley study. How could the outcome of that study help determine the level of financial contribution made by the owners of 158 Purley Downs Road, as deemed essential to help mitigate specific planning issues arising from what would otherwise be an unacceptable development of their land?

Meanwhile, the related complaint from June 2021 about 89 Hyde Road has never been answered.

Read more: Tory Bains is forced to confess: planning is ‘all but broken’
Read more: Council delays and lack of enforcement cause residents misery
Read more: Director of planning’s bogus claim over Institute membership
Read more: Buyers beware: High Court judge puts planners in the dock


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News, views and analysis about the people of Croydon, their lives and political times in the diverse and most-populated borough in London. Based in Croydon and edited by Steven Downes. To contact us, please email inside.croydon@btinternet.com
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7 Responses to Council planning approvals being ‘sold’ for £1,500 per flat

  1. David White says:

    We seem to have entered a period where financial considerations are paramount for the Council, over and above what is best in public policy terms.

    As well as the issues raised by Steve Whiteside in this article there’s also the matter of LTNs (lower traffic neighbourhoods). These should be supported (where appropriate) for environmental reasons, but the Council also has in mind how much can be raised through fines, to alleviate the borough’s financial difficulties.

    The backdrop to all of this is the Government’s substantial cut in grants to local authorities. This gives the Councils little room to manoeuvre and they tend to carry the can.

  2. Jim Bush says:

    Well Croydon Council are the undisputed experts at “not working in the public interest”, so I guess they would know all about that ?!

  3. WP says:

    In these legal agreements that Council also charge the developer a £1500 “monitoring fee”. This in itself is unjustified – £1500 for putting the money in the bank and adding the details to a spreadsheet! This is on top of the legal fees for actually drafting the agreement as well. Nevertheless the Council are therefore paid by the developer to monitor themselves and the Council should be able to readily identify where the money has been spent. The contributions should be reasonably related to make the development necessary. The monies should not be “pooled” to be spent on something remote from the development – that is what the Community Infrastructure Levy (CIL) is for. I have yet to see any evidence where the money has been spent, if at all.

    • Since the introduction of new CIL regulations in September 2019, local planning authorities ARE entitled to levy a monitoring fee. BUT the fee must be fair and reasonable in any particular circumstance … based on the local planning authority’s estimates of the ACTUAL costs of monitoring.

      In the case in question, the fee agreed is £1500, for monitoring … errr, well …. whatever it says they might get around to doing with the £10,500 … and with the “Council exercising absolute discretion”. I have no idea as to how that monitoring fee was (or could ever be) anywhere near accurately estimated. (If anyone has, please get in touch).

      As mentioned in the main piece, the Council’s only current guidance on s106 contributions makes no mention of ‘sustainable transport contributions’ or of any associated monitoring fee. In any case, there seems to be no evidence that this document has ever been consulted upon or formally adopted.

      The 2019 amendments to the regulations removed the previous restriction on ‘pooling’ more than 5 planning obligations towards a single piece of infrastructure … BUT whatever’s done with the ‘contribution’ still has to meet the 3 tests set out in CIL regulation 122.

      For evidence of where s106 has been spent, check out the Council’s two Annual Infrastructure Funding Statements (IFS), under ‘CIL reports’:
      https://www.croydon.gov.uk/planning-and-regeneration/planning/make-planning-application-developer/community-infrastructure-levy-cil-and

      The IFS for 2021-22 should (by law) be published by 31 December.

      Absolutely agree regarding Community Infrastructure Levy (CIL), but as Witness A has told the court ‘sustainable transport schemes are not included in Croydon’s … CIL’. Now whose brilliant idea was that I wonder?

  4. Esme Gonzalez says:

    Why are you trying to allow developers to get away with not paying for infrastructure?

    We need better infrastructure in South Croydon – there aren’t enough cycle lanes or electric charging points (and we need more buses and new pavements!). We also need more homes – my generation are priced out of our area – and if the developers have agreed to pay for improvements (like they do in other boroughs) they should do.

    I know that you’re on the side of developers and against the Council, and that’s fine, but the developers have already agreed to pay this money so I don’t understand why you want to stop the Council taking their money and spending it on infrastructure.

    If this court case succeeds, the infrastructure would either have to come out of taxpayer’s money (and the Council apparently has no money anyway so that’s not going to happen) or we will end up with more homes and no new infrastructure.

    I admire your dedication but you are making things worse for local people. You can blame the Council if you want to, but that doesn’t actually fix any problems – we should be trying to get developers to pay for more rather than less!

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