Summary: Mr B complains about how the Council handled planning matters at a development next to his home. There was fault by the Council because it failed to properly address his complaints. The Council should apologise, review how it handles similar complaints, and share this decision with the relevant staff. It is not clear how the Council assessed one aspect of the development, but this will be resolved by it deciding a subsequent application to amend the planning permission.

The complaint

1. Mr B complains about how the Council dealt with a planning application to demolish a bungalow and replace this with a block of flats on a plot next door to his property. In particular, he says the Council:
• Did not properly consider whether the application breached various policies of the Croydon Local Plan and the London Housing Supplementary Planning Guidance;
• Did not properly take account of consultation responses or objections against the development;
• Unreasonably applied planning conditions that effectively deferred decisions on substantive aspects of the development until after the planning approval;
• Has shown bias towards the developer;
• Did not take enforcement action when the developer breached planning control;
• Has approved amended plans but has not made these available to the public; and
• Failed to address his complaints in its responses to him.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have considered the information Mr B sent me and discussed the complaint with him. I have watched the video recording of the Council’s planning committee meeting. I have read the Council’s planning documents and considered its response to my enquiries. Both parties have had the opportunity to comment on a draft of this statement.

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What I found

The law and guidance

5. All decisions on planning applications must be made in accordance with the Council’s development plan, unless material considerations indicate otherwise.
6. Where the development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
7. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise. Government statements of planning policy are material considerations. General planning policies may pull in different directions (eg in promoting residential development and protecting residential amenities). It is for the Council to decide the weight to be given to any material consideration in determining a planning application.
8. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material planning reasons.
9. In this case, the Council has its own development plan (the Croydon Plan) but also needed to take into account the London Housing Plan (the London Plan).
10. Planning permission may be granted subject to conditions relating to the development and use of land. The Government has issued guidance on the use of planning conditions. This says that planning conditions should be kept to a minimum, and only used where they satisfy the following tests:
• necessary;
• relevant to planning;
• relevant to the development to be permitted;
• enforceable;
• precise; and
• reasonable in all other respects.
11. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control. Government guidance says:

“Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2018, paragraph 58)

What happened

12. Mr B lives in a residential area next door to a detached bungalow. The area has a mixture of single and two storey properties, generally of traditional design. The Council was working to increase housing in the area and entered a Planning Performance Agreement with a developer, to seek to resolve various planning issues before it submitted planning applications. The agreement sets out how the Council will advise the developer before he puts in a planning application to make sure that it is suitable. The Council then will decide the application in the usual way.
13. The developer identified the plot next door to Mr B and put to the Council, a proposal to build a block of flats there. The Council engaged in preapplication advice and also consulted its experts on Transportation, Spatial Planning and Trees.
14. The Council received the following pre-application consultation responses:
• The Council’s Tree Team advised that it had no objections to the proposed application. There were no trees of merit on this site. However, the layout did not allow quality landscaping to the front and this would need to be addressed by the developer’s planning application.
• The Council’s Transportation Team advised that it had concerns about the car park at the front of the proposed development which would have eight parking bays. This is because the front access is linked to a four-arm intersection on the public highway and the layout of the car park would have cars reversing into the intersection. The planning application would need to reduce the number of parking bays and ensure that vehicles could access and exit in forward gear.
• The Transportation Team advised that it would need more information to properly assess whether the development was suitable including visibility splays, a statement covering the number of trips residents of the new flats would generate; and details of cycle and refuse storage facilities.
• The Council’s Spatial Team said the massing of the new building was too deep, more information was needed, and the landscaping scheme was not coherent.
15. The Council wrote to the developer. It set out the relevant parts of national planning policy and the local plan and it said:
• There was no objection to flats on that site in principle subject to more detailed consideration.
• The proposed development was too deep, and it must be brought in line with the surrounding area. The height and depth combined would impact too greatly on neighbours. There are concerns about loss of light for existing residents.
• There needed to be more space at the front for soft landscaping and this would mean there would be less room for car parking.
• There should be more 3D images of the scheme, more information on the plans, the intended materials, landscaping and access, a sustainable urban drainage system, flooding and transport.
16. The developer submitted the planning application with a different design, and more information including a tree report. The Council consulted again those professionals that had previously expressed concerns about the design. It also consulted the normal statutory consultees.
17. The Council’s Spatial Team said the massing was now acceptable. However, the proximity of the bedroom of a ground floor flat to the car park and path was unacceptable and the entrance door of one flat needed amending. It said the landscape design appeared ‘confused’ and the developer needed to give this more consideration.
18. The developer had submitted a plan showing fewer parking spaces and how a vehicle could access and exit the site in forward gear. The Council’s Transport Team confirmed this was acceptable.
19. Mr B and his neighbours objected to the planning application. I have summarised the relevant objections:
• The development overshadows adjacent houses and is bulkier than these. The sunlight assessment does not take into account Mr B’s home and windows from the new flats overlooking his garden.
• Mr B also said the architectural drawings are misleading and the ground levels are not accurate. If the Council grants permission, it will be the second development in this same area, and inconsistent with the reasons for refusing an extension on that plot because the Council said it would be too dominant.
• There are no soil samples to support the basis for the surface water, drainage and flood risk assessments, and no details of how the drainage will be managed.
• The design does not meet the requirements of parts of the Local Plan and the London Plan, particularly around accessibility, and cycle and refuse storage.
20. The Council’s report to its committee:
• Describes the surrounding area. It sets out that the existing building is a detached bungalow. It says the area has a mix of single and two storey properties in generous plots with good spacing and generally traditional dwellings. The area is designated as surface water flooding and critical drainage.
• Summarises the objections and stated which are material planning considerations, and explained why certain objections are not a material consideration.
• Sets out the relevant policy considerations from the Croydon Plan.
• The site is within a residential area and the proposal accords with the Council’s aim to increase housing in the area.
21. The Council’s planning committee considered the application. A spokesperson for the objecting residents summarised the objections. Officers addressed the committee. The Council granted planning permission subject to planning conditions.
22. The developer submitted details to discharge the planning conditions. The Council again consulted the usual consultees and other professionals within the Council, as well as the public. The Council produced a report setting out its assessment of the details submitted to it. The Council decided to discharge the conditions.
23. As the build developed Mr B complained that certain conditions were not being met and another resident made clear that the ground floor design was not as the approved drawings. Mr B said he had no details of what would be on his boundary with the site. The Council investigated the enforcement complaints and I have set out details of this below.
24. Mr B made a formal complaint to the Council that it had not properly considered the application or the discharge of planning conditions, and later that it had not taken enforcement action. Again, these details are below.
25. The developer found that it could not develop the flats in accordance with the planning permission and so it submitted an application to amend the design. The Council is yet to decide this.
26. I have set out the issues around each part of the complaint and my findings. I have looked at not only what was available at the planning application stage but also how these aspects were dealt with through planning conditions, enforcement investigations and the more recent application to amend the scheme.

The Council did not take account of the development plan policies, or those of the London Housing Plan and did not consult the local lead flood authority

27. Mr B and other objectors said that the development did not meet the requirements of the Croydon and London Plans.

Accessibility

28. Both Plans say that new homes should be accessible, including that 10% should be wheelchair adaptable dwellings. However, the Council may have to be flexible on this requirement in low rise and in-fill flats (such as this development which has less than four storeys) as it would require a lift which and there may not be room for this. However, the developer must show that achieving step fee access would make the development unviable or the service charges unaffordable for residents.
29. Mr B says the development breaches this because only the ground floor is accessible. The Council explained to its committee that the building does not need a lift because it is less than four storeys and it will ensure that a one unit is adaptable, and one unit is suitable for a wheelchair user.
30. The Council is right to take a flexible approach. The Council’s advice to the committee is not wrong, but it is not complete. The report refers to the limited footprint but there is no clear indication that the Council assessed the viability of requiring that a lift be installed. This was necessary to allow the Council to exercise its discretion not to require a lift and disabled access to other storeys, and the lack of evidence that the Council completed the assessment is fault.
31. The developer has since applied to amend certain conditions. As part of this, the developer has asked the Council to approve a new internal design where there is no wheelchair user flat on the ground floor, and instead it provides two accessible and adaptable flats. This is because, there is not enough room for a wheelchair user flat.
32. The application to amend the design is under consideration. The Council has consulted the residents and has received comments and objections. The Council will need to consider the viability and acceptability of the development when approving changes that effectively limits the accessibility. If the Council decides it can depart from the policy and approve the amended design, I would expect the Council to show fully how it has decided this. This would mean that any fault by the Council in how it considered whether the original design was acceptable in terms of accessible flats, will be remedied by the Council’s decision on the application to amend this.
33. Should the Council decide that the new design is not acceptable, the developer can decide how to proceed. If he proceeds with the unauthorised design the Council can decide whether to take enforcement action.
34. Mr B can bring a new complaint to the Ombudsman in the future, if he feels the Council either has not considered the amended application properly or has not considered any enforcement action properly.

Waste Recycling

35. The London Plan says that communal refuse and recycling facilities should be accessible on a hard service and satisfy local waste collection requirements. It also says that flats should be carefully designed to limit the impact on the residents of storing waste. The Croydon Plan says that the waste storage should be visually screened and part of the design.
36. The planning application showed the waste storage inside the communal areas of the building. Mr B and other residents said that there was not enough room for this. The Council imposed a planning condition that final details of the storage should be submitted to the Council. The objectors were correct. There was not enough room for the storage, and it had to be relocated to the side of the building. The objectors said that the path to the storage was stepping stones and not a hard surface and so not accessible or in accordance with the London Plan. However, the design now is that store is on block paving and so it is accessible.
37. There was no fault by the Council. Although the design had to be altered, the Council considered the new design and decided it limited the impact and is visually screened and so is acceptable in terms of both Plans. A new design is also part of the current application to amend the original permission, giving the Council a further opportunity to consider the final design.

Sustainable drainage

38. Both Plans have requirements for sustainable drainage. They say that new development should incorporate sustainable drainage and should aim to achieve a run-off as close as possible to the site.
39. Mr B is concerned about the potential impact of increased surface water causing flooding. He says the Council’s report identified the area as a critical drainage area. However, the developer had given no details that the Council could properly consider, rather a vague opinion of what might be possible, and it could not enforce this in the future. Mr B said the developer did not conduct infiltration tests for the ground, so could not say for certain whether permeable paving would be viable. He says that in other developments this has proved not to be the case.
40. The Council’s report to its committee says it can make sure the hardstanding is permeable when it discharges planning conditions.
41. The Council is clear that as this is not a major development it was not required to consult the Lead Local Flood Authority (“LLFA”). The LLFA is only a statutory consultee in the case of major developments. The developer submitted a Flood Risk Assessment as part of the original application including mitigation measures and that surface water would run off to permeable paving.
42. The developer submitted a sustainable drainage report. Although this was a desk top model it was detailed and specific to the site, using modelling to ensure the drainage was sustainable. The Council properly considered the drainage information. The model is an accepted means of assessing drainage and it was open to the Council to approve the proposal.
43. The Council included a condition, which said the parking area, ‘shall be made of porous materials, or provision shall be made to direct run-off water from the hard surface to a permeable or porous area within the curtilage of the dwelling house’. In doing so the Council provided a condition that is enforceable, to ensure sustainable drainage is in place, whether or not future infiltration tests showed permeable paving was viable.
44. I can see no evidence of fault in how the Council considered this matter.

Cycle storage

45. Both Plans require storage for bicycles. If this is outside it should be secure, sheltered and adequately lit. The original plan showed indoor storage. Mr B objected that there was not sufficient room for indoor storage. The Council decided that there are lots of solutions for cycle storage and attached a condition that the developer must submit details of this. When detailed plans were submitted it became apparent that Mr B was correct and there was not enough room for indoor cycle storage. The developer proposed outside storage at rear of the building in a cycle storage unit.
46. The Council considered that although the details had changed since the planning application, the new proposal for cycle storage was in accordance with its policy. This means that it would not have been right for the Council to refuse permission for the development on this basis. The Council has properly assessed the final design.

Trees and Landscaping

47. The Plans say that the Council will not permit a development that results in the avoidable loss of trees. The Council’s Local Plan says that proposals should incorporate soft landscaping and seek to retain existing landscaping features.
48. The developer submitted details of the landscaping and trees for the plot. Planning officers asked its Tree team for comments on the application. It concluded that there were no trees of merit on the site, but that the front of the site did not allow for quality landscaping and that this should be revised for a final layout.
49. Mr B told the Council that the developer had not submitted a plan that the committee could consider or that could be enforced in the future. The Council attached a condition to the planning permission that the developer must submit landscaping details for the Council’s agreement.
50. The developer submitted a landscaping plan for the Council’s approval. The Council consulted its Tree Team on this. The team’s advice says it is now satisfied with the landscaping proposal but recommended some amendments.
51. We asked the Council for more information about how it had considered the trees and landscaping. It said this was discussed at the committee meeting and the developer’s subsequent landscaping scheme reflected the comments. Mr B says the Council only discussed permeable paving and the introduction of an environmental area at the meeting, nothing else.
52. The Council considered the details put to it and took account of the Tree Officer’s comments, along with residents’ objections, before discharging the condition. It also referred to concerns. This is the Council’s decision to make. I cannot question the merits of the Council’s decision and can see no evidence of fault in how it reached that decision.

Unreasonably applied planning conditions to the planning permission to defer making decisions about substantive matters until after planning approval

53. Mr B and other residents complained that major and important aspects of the development were dealt with by planning condition. His concern is that this means that important issues are not open to consultation or consideration by the committee, and the planning permission is granted without enough information about the details of the development.
54. I have looked at how the Council used planning conditions. The main aspects controlled by conditions were landscaping, refuse and cycle storage, boundary treatments, finished floor levels, and lighting.
55. The Council’s position is that the approach is evolving and that it is moving away from lots of pre-commencement conditions. In this case however, the Council consulted residents on the discharge of planning conditions.
56. The Council consulted the residents who submitted a petition. The Council’s assessment of each condition to be discharged was set out in its officer’s report. This is considered under each aspect headed above.
57. It is open to the Council to use conditions and it has confirmed it is moving away from this. Despite Mr B’s concerns the Council did consult residents and properly considered the discharge of conditions as set out under the various aspects. For this reason, even if the Council would now not allow so many aspects to be controlled by a planning condition, its actions did not impact significantly on Mr B.

That the Council is bias towards the developer

58. The Council gave the developer pre-application advice and the parties had also entered into a Planning Performance Agreement (PPA). This is an agreement setting out how the developer will bring applications to increase housing supply in the area.
59. I have seen the pre-application advice and I have been able to share this with Mr B. I can see that it might seem that the Council is having secret discussions with developers to which the public are not privy. But there is no evidence of bias in this and pre-application advice is a normal part of development. It allows the developer to find out what will not be acceptable so that it can propose a more appropriate scheme.
60. The PPA is designed to set out how the application process will proceed. The Council says it helps foster a closer collaboration and designs better development, especially when the impact is high. However, it does not oblige the Council to grant planning permission. There is no evidence of bias.

That the Council did not take account of the objectors’ views and misrepresented or disregarded those views. That it did not take into account the views of relevant agencies.

61. I have read the committee report, details of the objections submitted by the public and watched the recording of the committee meeting. The objectors’ views were set out properly by the Council officers and were considered by its committee before it reached its decision.
62. I have seen the responses to the Council’s consultation on the planning application. It is clear the Council took these into account. The Council’s assessment of each is set out in the officer’s report to committee.
63. The residents may not all agree with the Council’s assessment but there was no fault here.

That the Council did not take enforcement action

64. Mr B complained that the developer was not building in accordance with the approved plans and was not complying with planning conditions in that:
• The developer was not following the construction plan, so that deliveries and movement of vehicles on and around the site is dangerous.
• Mr B lives next to the development. He complains the developer has not agreed the boundary treatment. The original planning permission does not make clear what this should be. The Council should have required a full topographical survey showing ground levels on the site as well as the neighbouring land. This would have given a better understanding of how the building and the landscaping would relate to the surrounding homes and gardens.
• The developer was not building in accordance with the plans. The building could not accommodation the internal bicycle store or an accessible three-bedroom unit on the ground floor as approved.
65. The Council investigated Mr B’s enforcement complaints. It decided:
• The plans for deliveries and construction traffic are acceptable. There will be times when these will not be accommodated on site. However, the Council has taken this up with the developer’s contractor on site and there should be no further deliveries that block the road at busy times.
• It did not have to insist on a topographical survey to establish the ground levels ahead of the development. The ground is relatively level and spot levels were shown on the landscape plans approved as part of the discharge of conditions, both within the site and the surrounding area.
• The approved landscape plans show there will be a 1.8m fence along the boundary with Mr B’s home. The Council accepts that there would need to be a retaining wall, the details of which can be agreed between the parties, and it will take this up with the developer.
• The retaining wall is to make sure that land from Mr B’s property is retained to keep it from the development site. Even if the Council has not approved a retaining wall, it is unlikely to take enforcement action because the retaining wall will not cause harm, in its judgement, but will protect Mr B’s property and the site.
• The developer had applied for an amendment to the planning permission that would allow it to assess the suitability of the changes to the ground floor unit and the refuse and cycling storage.

Confusion around the plans

66. Mr B raised concerns that the Council had approved amended plans, but these are not available to the public. The Council has explained that it has not approved amended plans. It did make a mistake in the decision notice for this development which then gave the impression that the Council had approved different plans to those made available on its website.
67. The correct plans were part of the Council’s discharge of the planning conditions and are on the website and available to the public. Further plans have been submitted as part of the application to amend the planning permission.

That the Council did not address his complaints

68. Mr B complained to the Council. It did not address all the matters he raised and instead referred him to its private responses to other complainants in the community who had made similar complaints about other developments. The Council says these complaints are part of an organised campaign and are lengthy and often duplicates. The Council also told Mr B it would not respond to his complaint where this involved allegations that it had not considered the objection of a third party.
69. This was fault by the Council. I appreciate that the complaints may be time consuming and the Council may have already responded to many similar complaints as part of a campaign. It is possible that Mr B had seen the Council’s response to these complaints, but it is wrong for the Council to have assumed this or to have given details of other complainants.
70. It was also fault for the Council not to respond to Mr B’s complaint about how it had considered another resident’s objection.

Summary of fault found

Complaint handling

71. There was fault in how the Council handled Mr B’s complaint about how it decided the original planning application. It should address the issues raised or say why it cannot. However, it is not right for the Council to direct Mr B to other complainants, even if it is sure he knows them, and the responses the Council gave. This potentially breaches the confidentiality of the other complainants, and the Council should not expect them to pass on complaint responses to third parties.
72. I can see how a complaint that the Council has not properly considered an objection to a planning application, may carry more weight if it comes from the objector himself. However, the Council should address such a complaint even if it comes from someone else. It should not have told Mr B that it could not do so.
73. The Council’s shortcomings here caused Mr B frustration and meant he had to take his complaint further.

The Council’s assessment of whether the development meets accessibility standards

74. I can see that the Council considered the planning application thoroughly. However, I cannot see that it specifically considered whether it could agree that lower accessibility standards could be applied in relation to the viability of the development. This was fault by the Council.
75. However, it is not clear whether the Council made this assessment but did not evidence it specifically, or whether this consideration would have defeated the planning application.
76. In any case, the current application to amend the permission deals with the changes to the flats and their accessibility. This means that any injustice from the Council not being clear in why it allowed the flats to depart from the policy will be remedied by a proper determination of the application to amend the design.

Agreed action

77. Within one month of this decision, the Council should show the Ombudsman it has:
• apologise to Mr B for not addressing his complaints properly and for not being clear on how it had assessed that the development would not be viable if it insisted on lift access to make the upper storeys accessible; and
• shared this decision with the relevant staff.
78. Within three months of this decision, the Council should show the Ombudsman it has reviewed how it handles complaints when there are similar complaints about the related issues, so that it makes sure it addresses complaints individually and does not refer to those already made.

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Final decision

79. I have found fault by the Council causing injustice to Mr B.

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Matters not investigated

80. Mr B raised concerns that the cycle storage does not comply with the Croydon Local Plan because it could not also be used for parking mobility scooters and/or motorcycles. I have not investigated this aspect of the complaint as it does not cause a significant personal injustice to Mr B.

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Investigator's decision on behalf of the Ombudsman