23/01368/CONR (98 Hyde Road) - Advice from 'Leading Counsel'

The request was successful.

Dear Croydon Borough Council,

In his letter dated 30 March 2023 regarding planning application 23/01368/CONR (98 Hyde Road), the Agent [David Kemp BSc(Hons) PGDL MRICS Barrister(non-practising member)] states:
“… In the light of recent discussions with officers regarding these applications and in an
attempt to work with the Council to try to resolve and regularise the outstanding planning
issues relating to this site, the applicant has obtained advice from Leading Counsel as to
the appropriate way to proceed. … This legal advice notes the following:
a) All current breaches in respect of the 2019 Permission vis-à-vis the currently built
scheme can be regularised by a s73A application for retrospective approval.
b) In the present case a building containing 8 flats of particular dimensions has been
constructed. The differences in the building itself are very minor and not of
planning significance. These differences include that the vehicular access has
changed to the reuse of an existing access; the approved number of car parking
spaces have been provided on a different layout; and the refuse and recycling
stores have been moved, in a way which is an improvement.
c) In these circumstances the development has been carried out under the planning
permission – so with planning permission – but in breach of condition. ….

+++ Please provide a full copy of the advice from ‘Leading Counsel’. In the alternative, please confirm that the Council does not hold (and has never held) this information.

Yours faithfully,

Stephen Whiteside

croydon@infreemation.co.uk, Croydon Borough Council

Information Team Croydon
Digital Services
Assistant Chief Executive Directorate
Bernard Wetherill House
7th Floor, Zone B
Croydon
CR0 1EA

Contact: Information Team
[Croydon Borough Council request email]

 

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DEAR Stephen Whiteside

 

Freedom of information request - FOI/8260

 

Subject: Advice from Leading Counsel

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Stephen Whiteside

Dear Croydon Borough Council,
Your Ref: FOI/8260
By law, the authority should normally have responded promptly and by 12 October 2023 at the latest.
Please provide all the information requested, without further undue delay.
Yours faithfully,
Stephen Whiteside

Stephen Whiteside

Dear Croydon Borough Council,

Your Ref: FOI/8260

Another week goes by and still no response. If I don't receive that response by 26 October 2023, I will complain to the Information Commissioner about these unlawful delays.

Yours faithfully,

Stephen Whiteside

Stephen Whiteside

Dear Croydon Borough Council,

Your Ref: FOI/8260

I have now complained to the ICO about the lack of response.

Yours faithfully,

Stephen Whiteside

Stephen Whiteside left an annotation ()

Having ignored his request of 6 November 2023 (to provide a substantive response within 10 working days), the Information Commissioner has today issued a formal Decision Notice telling the Council to provide that response within 35 calendar days.

"Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court". (ICO Reference: IC-266905-K2G5)

Stephen Whiteside

Dear Croydon Borough Council,

The Council has failed to provide a substantive response to this request (within 35 calendar days), as required by Information Commissioner's Decision Notice of 28 November 2023.

If I do not receive that response by 8 January 2024, I will inform the Commissioner of the Council's latest example of 'contempt'.

Yours faithfully,

Stephen Whiteside

Stephen Whiteside left an annotation ()

Following the failure to act on the Information Commissioner's Decision Notice of 28 November 2023, the Council has seemingly now also ignored a ‘final’, 7-day warning letter.
I will now inform the ICO that I have still to receive the information first requested on 14 September 2023, and ask that the file is passed to the Commissioner's solicitors.

croydon@infreemation.co.uk, Croydon Borough Council

1 Attachment

Information Team Croydon
Digital Services
Assistant Chief Executive Directorate
Bernard Wetherill House
7th Floor, Zone B
Croydon
CR0 1EA

Contact: Information Team
[Croydon Borough Council request email]

 

Dear Stephen Whiteside

Request FOI/8260

 

Environmental Information Regulations 2004

Your request has been considered under the provisions of the Environmental
Information Regulations 2004. Please accept our apologies for the lengthy
delay in responding to you. Specifically, you have requested the following
information:

“In his letter dated 30 March 2023 regarding planning application
23/01368/CONR (98 Hyde Road), the Agent [xxxxx) PGDL MRICS
Barrister(non-practising member)] states:

“… In the light of recent discussions with officers regarding these
applications and in an attempt to work with the Council to try to resolve
and regularise the outstanding planning issues relating to this site, the
applicant has obtained advice from Leading Counsel as to the appropriate
way to proceed. … This legal advice notes the following:

a) All current breaches in respect of the 2019 Permission vis-à-vis the
currently built scheme can be regularised by a s73A application for
retrospective approval.
b) In the present case a building containing 8 flats of particular
dimensions has been constructed. The differences in the building itself
are very minor and not of planning significance. These differences include
that the vehicular access has changed to the reuse of an existing access;
the approved number of car parking spaces have been provided on a
different layout; and the refuse and recycling stores have been moved, in
a way which is an improvement.
c) In these circumstances the development has been carried out under the
planning permission – so with planning permission – but in breach of
condition. ….
 
+++ Please provide a full copy of the advice from ‘Leading Counsel’.  In
the alternative, please confirm that the Council does not hold (and has
never held) this information”.

Please find the requested document attached. Some information has been
redacted as it held information relating to individuals.  Personal data is
exempt from disclosure under Regulations 12(3) and 13 of the Environmental
Information Regulations 2004

The Council publishes Access to Information requests and responses on its
online Disclosure Log. (Any request included within this log will be
anonymised appropriately)

To view the Council’s Disclosure Log, please visit our website available
here:

[1]The Freedom of Information (FOI) Act | Croydon Council
(disclosure-log.co.uk)

If you are dissatisfied with the way the council has handled your request
under the Environmental Information Regulations you may ask for an
internal review.  This should be submitted to us within 40 working days of
this response.  You can do this by outlining the details of your complaint
by:

Email:        [2][Croydon Borough Council request email]

Writing:     Information Team
London Borough of Croydon
Bernard Weatherill House
3^rd Floor - Zone E
8 Mint Walk
Croydon CR0 1EA

 Any requests received after the 40 working day time limit will be
considered only at the discretion of the council.

If you are not content with the outcome of the internal review, you have
the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF

Yours sincerely 
 

Croydon Council

 

 

References

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1. https://croydon.disclosure-log.co.uk/
2. mailto:[Croydon Borough Council request email]

Stephen Whiteside left an annotation ()

So finally it arrives, I suppose I should be grateful.

How unsurprising to see, that within the advice from ‘leading counsel’ there is no mention of the material FABRICATION within the street elevations approved by the Planning Committee in December 2017, which was first brought to the attention of the case officer ( Louise Tucker) in March 2020.

That fabrication (drawing BX05-S2-105) suggests that the ridge of the proposed building would be significantly LOWER than the adjacent house (no.96 Hyde Road), when in TRUTH it would be around the same height and would (and does) actually appear HIGHER when viewed from the Road.

Condition 1 attached to that application (17/03542/FUL) states “The development shall be carried out ENTIRELY in accordance with the … approved drawings listed on this decision notice.” BX05-S2-105 was one of those drawings, but the development has not (COULD NOT) be built as shown.

The officer report for the later ‘minor amendment’ application 18/03682/CONR includes that the “The changes to the massing and appearance of the building are minimal” (5.5) and “The relationship to adjoining properties would be similar to that already approved.” (5.9).

So no (or minimal) change to the Committee-approved, but ‘fabricated’ streetscene.

On 15 May 2021, solicitors representing a neighbour of another ‘unlawful’ block of flats (28 Grasmere Road, Purley), wrote to the Head of Development Management (Nicola Townsend) as follows (emphasis added):
“…The Council may wish to consider the recent case of CHOICEPLACE which confirms that if a developer (knowingly or otherwise) submits inaccurate plans and cannot physically build what it has planning permission for then such it its problem (and once of its own making). …”
Choiceplace Properties Ltd v Secretary of State for Housing Communities And Local Government [2021] EWHC 1070 (Admin) [“Choiceplace”]

On 11 August 2021, with regard to yet another unauthorised block (12 The Ridge Way, Sanderstead), I emailed Ms Townsend (copy to Heather Cheesbrough), referring to the judgment in Choiceplace and specifically to paragraph 25:
"... there is no reason why the depicted heights of the existing buildings should be regarded as illustrative or somehow excluded from the requirements of condition 1 on the planning consent. As was pointed out during the course of argument, a relationship between a proposed development and the existing height of either adjacent structures or indeed adjacent ground levels is a matter to be accurately depicted on plans accompanying planning permission for good reason. It is at the very least to be assumed to be an accurate depiction, in the absence of any specific text on the drawing indicating that elements of it are not to scale. ..."

In the case of 12 The Ridge Way, information disclosed following a request under the EIR 2004, has revealed that on 18 January 2022 (having just come out of a meeting with Nicola Townsend, John Penn, Ross Gentry and Helen Furnell) the case officer (Carolyn Southall) told the applicant:
“... a new application is required due to the work that has already commenced on site and the discrepancy between the heights shown on the approved streetscape/contextual drawings and what is actually there. ... As a consequence of this, there is no permission for the development. ...
... there are two outstanding applications, those being 21/03404/CONR and 21/05410/NMA. AS THERE IS NO PERMISSION FOR WHICH THESE APPLICATIONS SEEK TO AMEND/VARY, THEY NEED TO BE WITHDRAWN ...”

As I understand it, 21/05410/NMA was in the end never validated, but I note that 21/03404/CONR was finally withdrawn in December 2023, almost two years after Ms Southall said it needed to be ... and almost a year after the development became occupied!

Louise Tucker et al have known (or should have known) from at least the summer of 2021 that in light of Choiceplace and for the same reason (an inaccurate and materially misleading approved streetscene drawing), the planning permission on 98 Hyde Road (18/03682/CONR) had not actually 'commenced' and had therefore LAPSED. The dreadful development that the Council's disgraceful lack of enforcement has permitted, did not (DOES NOT) benefit from planning permission. It’s unlawful, as well as awful.

A request of Ms Tucker on 21 May 2023 that she confirm that the 18/03682/CONR permission should be considered to have lapsed, remains unanswered.

The situation with 98 Hyde Road is very similar to that at 12 The Ridge Way, so has THIS developer been told (rightly in my view) to withdraw ANY of the five LIVE applications, which ALL seem to rely on the lapsed permission?
(21/01672/NMA, 21/01736/DISC, 22/00211/CONR, 23/00330/DISC and 23/01368/CONR)

Also, will officers (wrongly in my view) ‘sell’ a lapsed permission as a “fall back” permission to be given ‘significant weight’ in the LPA’s determination of any retrospective application on this Site (such as 23/01368/CONR), as they did in June last year in the case of 54 Arkwright Road, Sanderstead?