London Borough of Croydon (18 017 042)

Category : Planning > Planning applications

Decision : Not upheld

Decision date : 04 Oct 2019

The Ombudsman's final decision:

Summary: Mrs Y complains about various aspects of the process followed by the Council when it granted planning permission for the development of a nearby property. The Ombudsman does not uphold the complaint because there is no evidence of fault by the Council.

The complaint

  1. The complainant, whom I will call Mrs Y, complains about the process followed by the Council when it granted planning permission for the re-development of a neighbouring property. In particular, she says the Council:
      1. provided inadequate and incomplete advice at the pre-application stage
      2. validated the planning application, despite not having the required information
      3. failed to properly consult on the application, and disregarded and misrepresented comments received from the public
      4. presented a misleading report to the Planning Committee and failed to detail how the proposal breached planning policies. The Council also failed to make clear that the officer’s recommendation was ‘on balance’
      5. failed to properly deal with material planning matters, and instead applied excessive and unlawful conditions to the grant of planning permission
      6. failed to formally notify Mrs Y of the demolition works, despite having a statutory duty to do so
      7. wrongly accepted post-decision proposals as ‘minor amendments’, despite the requested amendments not being minor in nature
      8. failed to properly discharge several planning conditions
      9. failed to ensure sustainable development
  2. Mrs Y says she has suffered injustice because the development has impacted negatively on her amenity, reducing her privacy, light and peace.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

  1. During my investigation, I have:
    • discussed the complaint with Mrs Y by email and given her the opportunity to discuss matters with me by telephone;
    • made enquiries of the Council and considered its response;
    • considered any relevant planning law and guidance; and
    • issued a draft decision and invited comments from Mrs Y and the Council. I considered any comments received before making a final decision.

Back to top

What I found

  1. Mrs Y says planning officers, through the provision of pre-application advice, deliberately encouraged a sub-standard planning application. For example, with regards to information on the levels of the development. As a result, Mrs Y says it was more difficult for the public to assess and quantify their objections.
  2. Mrs Y says the scope and content of the advice provided at the pre-application stage formed the biased basis for the Council’s management of the proposal.
  3. In response to my enquiries the Council provided a copy of the pre-application advice it provided to the applicant. I understand Mrs Y already has a copy of this following an information request she made of the Council. I have considered what information the Council provided about the levels. It advises:

“Given the changes in the land levels the provision of the subterranean level could be appropriate in this location, however it would need to incorporate a tiered terrace type arrangement as previously discussed… the current arrangement is too deep and would create a stark appearance…”

“There are some concerns in respect to the impacts with the adjoining property at [Mrs Y’s address] given that this would be adjoining a three storey mass very close to the boundary…”

  1. Pre-application advice is a matter between the Council and the applicant and does not bind either party. Any application submitted thereafter must still meet the relevant planning requirements. There is no requirement on the Council to ensure the applicant provides information which Mrs Y says was missing from the application.
  2. Although I recognise Mrs Y has concerns about the quality of advice provided by the Council, having considered the advice, it is my view is that it is balanced rather than biased. I do not therefore uphold this part of Mrs Y’s complaint.

Complaint b)

  1. Mrs Y complains the Council validated the planning application, although the site plan omitted the boundary treatments (including walls and fencing). Mrs Y also says the application included no information about the existing and proposed levels. Mrs Y says this was crucial due the nature of the sloped site and the proposal to excavate the basement area.
  2. The Council uses a ‘validation checklist’ against which it checks new planning applications. Article seven of the Town and Country Planning (Development Management Procedure) (England) Order 2015 stipulates that an application for planning permission must be submitted with the following:
    • a plan which identifies the land to which the application relates;
    • any other plans, drawings and information necessary to describe the development which is the subject of the application.
  3. The Council’s validation checklist says, “the plans, drawings and other supporting information that describes your proposal should be comprehensive, accurate and unambiguous…. The test is not whether a planning officer can work out what is proposed on the site, but whether the details would allow interested parties to understand your proposals and judge whether or not it would affect them”.
  4. It also says, “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.”
  5. The Council’s planning website shows a section drawing which displays the various levels in the property, the ground level and the proposed basement. But it does not show finished floor levels.
  6. When Mrs Y objected to the proposal, she described the relationship between her home and the proposal, “[Road name] slopes down and each house is built at a different level… In May 2012 a planning application was put in to build a higher roof to the bungalow. This was turned down because the angle and steepness of the proposed roof would have deprived me of light and sunlight into the living room”.
  7. The officer’s report, as presented to committee, also described the sloping nature of the road: “Furthermore, given that the topography slopes down from south [road name removed] to the north which the proposal takes advantage of, the ridge height would be akin to the adjoining property as such not visually intrusive, providing a development that reads more as a large detached house rather than a “block of flats” and as such would not appear out of keeping in the character of the surrounding area”
  8. The webcast of the Committee meeting shows discussion around the issue of site levels. The officer presented photographs of the site and made reference to the sloped nature. The Council decided to apply a condition requiring the developer to submit details of the finished floor levels prior to commencement of the build.
  9. The Ombudsman’s role is to consider injustice caused by fault. Although the plans did not show the floor levels, I am satisfied that decision-makers were aware of the sloping nature of the site when it granted permission. Mrs Y was able to interpret the plans submitted by the applicant when she objected. She cited the sloped nature of the proposal and the potential impact on her light and general amenity. I do not therefore uphold this part of the complaint.

Complaint c)

  1. Mrs Y complains the Council failed to consider the views of the ‘Spatial Planning’, ‘Transportation’ and Tree teams before granting planning permission. This is because the Council proceeded with the application despite not having received a response from these teams. Mrs Y says this limited the scope of the consultation.
  2. The Council has provided the response received from the Tree team, which confirmed: “I raide [sic] no arb [sic] objection to the proposed development”.
  3. The ‘Senior Transport Planning Officer’ also responded to the consultation, providing some comments about the proposal. The officer put forward some suggested conditions before concluding, “Strategic Transport has no objection in principle to the above proposal provided the above comments are addressed by the applicant”.
  4. I have seen no evidence of any comments received from Spatial Planning. The lack of response was a likely indicator that it had no comments to make on the proposal. The Council was not obliged to ensure it had a response before it continued.
  5. Mrs Y also says there was no specialist review or comment on material matters such as flood risk, surface water assessment, car parking, cycle storage, waste provision and landscaping.
  6. Although not provided by a specialist, the committee report contained comments on the issue of drainage and surface water, “The site lies within a critical damage flood risk area and is sloping. Given the areas for landscaping there are opportunities for SuDS to be located in the communal areas. Officers are satisfied that these issues can be dealt with by condition. Furthermore a Flood Risk Assessment has been submitted with mitigation measures included and these can be conditioned as part of any approval”
  7. It also referred to the need for landscaping, “The boundary will continue to be landscaped which would be in keeping with the area. Whilst it is acknowledged that the front of the site would be given over to hard-standing to allow for off street parking for the new dwellings, this is a feature of the surrounding area and there are areas of soft landscaping at the ground floor and along the boundary of the site to soften the appearance. This would reflect the arrangement of the neighbouring buildings and would be acceptable”
  8. The committee report noted the relevant policy considerations for the planning committee, including the consolidated London Plan 2015 as well as the Croydon local plan policies. These policies cover the other matters Mrs Y refers to here (car parking, cycle storage and waste provision).
  9. There is also a detailed analysis of the potential impact on neighbouring properties, particularly Mrs Y’s. The report summarises the public objections received, and outlines which of those objections engage material planning considerations. In my view, the report is suitably detailed on this point and allows the Committee to make an informed decision.
  10. I appreciate Mrs Y would have preferred for a planning officer to undertake a site visit to consider the potential impact first-hand, however there was no requirement for the Council to do so. I consider the officer’s analysis suitably covers the material planning considerations raised in the representations received, and so I do not uphold Mrs Y’s complaint that the Council disregarded and misrepresented those views.

Complaint d)

  1. Mrs Y says the planning proposals failed to comply with many of the Council’s adopted policies, and the committee report failed to make this clear. Mrs Y says this covered not only subjective matters, such as impact on the character of the area and residential amenity, but also ‘measurable’ breaches of policy, such as the living conditions of future occupiers, parking standards and highway safety, flood risk mitigation, cycle and waste storage, tree protection and landscaping.
  2. I have considered each point in turn. The committee report makes clear that:
    • Four units wold comply with the internal dimension requirements, however three units are ‘fractionally’ under the minimum requirements by around 3 square metres. But, on balance, the internal layout of those units is acceptable and adequate. The committee minutes show discussion around this point.
    • Cycle storage complies with the London Plan, which requires 14 secure and undercover spaces. But consideration should be given to a more conventional layout. Further details regarding this can be secured by way of a condition.
    • There are no trees on site subject to a Tree Preservation Order. The development would have an ‘acceptable relationship’ with trees on site and in neighbouring gardens. A condition was applied to protect a nearby street tree.
    • The proposal includes space for five cars. This does not meet the required 1:1 parking ratio. On-street parking is generally unrestricted in surrounding roads. The ‘Strategic Transport Team’ has no objections as the proposal promotes sustainable travel. The proposed parking is acceptable.
    • The site lies within a ‘critical damage flood risk area’. A Flood Risk Assessment has been submitted with mitigating measures which can be subject to planning condition.
  3. The committee report concluded the proposal was ‘considered acceptable within the area’. The officer did not stipulate that their view was ‘on balance’. Mrs Y says this is fault. The statutory requirement is for the planning committee to be provided with all the necessary information on the application to enable it to make a decision, irrespective of whether the officer makes a recommendation for or against the proposal.
  4. I consider the committee report contained enough information for the committee to make its decision. The officer made clear which parts of the proposal fell short of any relevant planning requirements. It was for the planning committee to make up their own minds on the merits of the application. The committee minutes and webcast reveal many of these contentious points were discussed. I do not therefore uphold this part of the complaint.

Complaint e)

  1. Mrs Y says the Council imposed excessive and unlawful conditions in order to ensure the proposal was acceptable for approval.
  2. Government guidance says planning conditions can enable development to proceed where it would otherwise have been necessary to refuse planning permission. This is because planning conditions can mitigate any adverse effects of a proposed development.
  3. Mrs Y is correct to point out there were negative aspects of the planning application. This is clear from the committee report. However, it is within the Council’s remit to use planning conditions to mitigate the impact of any negative aspects of the proposal.
  4. I do not find fault. The Council was entitled to impose planning conditions which it thought were necessary in making the development acceptable. It was for members of the planning committee to decide whether the conditions were fair, reasonable and practicable.

Complaint f)

  1. Mrs Y complains to the Ombudsman about how the Council dealt with proposals for a ‘rushed’ demolition of the existing building. She says the Council, in her belief, may have actively worked with the developer to ensure demolition took place before any complaints could be investigated.
  2. Mrs Y also says the Council has failed in its statutory duty to issue a copy of the relevant notice as required under Section 81(5) of the Building Act (1984).
  3. Mrs Y has not formally complained to the Council about this matter. The law says the Ombudsman can only investigate a complaint once the Council has been provided with the opportunity to respond to the complaint made. Based on the information seen, I am not satisfied the Council has been provided with this opportunity and so I have not investigated this part of Mrs Y’s complaint.

Complaint g)

  1. Section 73 of the Town and Country Planning Act (1990) allows planning applicants the option to submit applications seeking non-material or minor-material amendments (MMA) once planning permission has been granted. There is no statutory definition of a non-material or minor-material amendment. However, the government’s ‘Planning Practice Guidance: Flexible Options for Planning Permissions’ says a MMA “… is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved”.
  2. The developer applied to the Council for a non-material amendment because they wanted to:
    • enlarge one of the units within the basement
    • provide private amenity space for another unit
    • change one of the proposed three bedrooms units to a two-bedroom unit; and
    • change four other units to become two-bedroom apartments, rather than maisonettes.
  3. The Council refused the application because it said that, although the proposed amendments were internal to the development, the changes would add two windows on the first-floor level. The Council said this created a ‘noticeable’ difference to the visual appearance of the development and could result in additional impact on the amenity of adjoining properties.
  4. Following the Council’s refusal, the developer then submitted a request for a minor-material amendment (MMA). This proposed the following:
    • altering the mix of units internally, and thus the description of development
    • altering the side elevation to include less windows on the ground floor, but proposing four new windows at the first floor, plus an extra roof light
    • altering the other side elevation to change the position of the windows at the ground floor, including the removal of one window and to add a roof light
  5. The officer’s report shows a summary of the objections received via 15 letters of representation, as well as a petition containing 25 signatures. The officer considered the material planning considerations, and specifically the impact on Mrs Y, before concluding, “subject to conditions the scheme was previously found acceptable in terms of impact on residential amenities of these properties and given the relatively minor changes to the proposal this is once again the case here. There are additional windows at the first floor on the flank elevation front [road name] however there is sufficient separation distance between the properties not to warrant any overlooking or loss of privacy”.
  6. The Council granted the MMA.
  7. The developer then submitted a further MMA which sought the following:
    • amendment of internal layout to comply with Building Regulations
    • amendments to external elevations, including 100mm increase in roof height, reducing the number of rooflights and altering the number and size of windows
    • increase the size of the bin store and include an area for bulky items
    • relocation of the cycle store
    • removal of the internal lift
  8. The officer’s report again summarised the objections received: five letters, a petition containing 198 signatures, and a letter of objection from a local ward Councillor. The report shows the officer’s analysis of each amendment. The Council decided the proposed changes were acceptable and granted the MMA.
  9. In response to my enquiries, the Council said it recognises the S73 applications included amendments to the description of the development, removal of the lift and reconfiguration of the internal space. But it maintains that it was reasonable for the Council to decide the application under the MMA process. This is because, in its view, the amendment did not propose changes which were “substantially different”. This was a judgement for the Council to make.
  10. In any event, it is clear from the officer’s analysis that the MMA would not decrease Mrs Y's amenity as most of the proposed changes were internal. This is a relevant consideration because the Ombudsman can only remedy the effects of injustice caused by fault. Even if the Ombudsman found procedural fault in the MMA procedure used in this case, any impact on Mrs Y is limited.

Complaint h)

  1. Mrs Y complains that officers failed to properly scrutinise details submitted by the developer before discharging many of the planning conditions attached to the permission.
  2. When the Council first granted planning permission, it attached 14 planning conditions. Some of those conditions required the submission of further information from the developer before they could be discharged.
  3. As mentioned in the section above, the Council received an application seeking a non-material amendment to the permission previously granted. After considering the application, the Council decided the amendment was material in nature and therefore refused the application. The Council then granted permission for a minor material amendment in 2019, effectively forming a new planning permission. After this, the Council received an application seeking discharge of the following planning conditions.
    • Condition two: no works to any above-ground external elevation of the building shall start until details of the external facing materials have been submitted and approved by the Council.
    • Condition three: no works shall start without the approval from the Council in respect to; refuse storage, cycle storage, boundary treatments, land level changes to front parking, electric vehicle charging points and finished floor levels in relation to existing and proposed site levels. Details shall also be submitted regarding roads, footpaths, access routes and gardens including levels and gradients.
    • Condition six: no works shall start without full details of the landscaping.
    • Condition ten: no works shall start until the developer submits a scheme to show how the ‘street tree’ will be retained and protected during the works.
    • Condition eleven: visibility splays shall be provided before the new access is used and should be retained while the development remains in place.
    • Condition thirteen: no building or engineering works shall start until the developer has submitted a ‘Construction Logistics Plan’.
  4. The Council decided it had received enough information to discharge all the above conditions, except for of condition ten. It later received further information about tree protection works, and as a result the Council was satisfied in September 2018 that it was also able to discharge condition ten.
  5. Having reviewed the relevant files, there is no evidence of procedural fault in the way the Council discharged the planning conditions in question. I recognise Mrs Y has concerns about the level of scrutiny applied by officers and refers to some officers not being active members of the RTPI (Royal Town Planning Institute), however this is not a matter for the Ombudsman. We have no jurisdiction to consider personnel matters. It is for the Council to decide whether it is an essential requirement for its planning officers to be active members of the RTPI.

Complaint i)

  1. Mrs Y complains the Council granted permission for development which is not sustainable. In my view, this complaint centres on a difference in opinion about the sustainability of the development rather than any alleged procedural fault.
  2. The Ombudsman does not question the merits of decisions made by the Council, unless procedural fault calls those decisions into question. Having reviewed the committee report, it is clear the officer had regard to the relevant polices and guidance about sustainability before deciding: “... subject to the provision of suitable conditions the scheme is acceptable in relation to residential amenity, transport, sustainable and ecological matters. Thus the proposal is considered in general accordance with the relevant policies”
  3. I appreciate Mrs Y disagrees with the Council’s view, but there is no evidence of procedural fault in the Council’s consideration. I do not uphold this complaint.

Back to top

Final decision

  1. I have completed my investigation with a finding of no fault for the reasons explained in this statement.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings