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
- the manner in which the £1500/unit contribution has been calculated; and
- 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.
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.
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