TOPIC: UK PLANNING - LONDON BOROUGH OF HAMERSMITH AND FULHAM (LBHF) - LOCAL GOVERNMENT OMBUDSMAN (LGO)

MISTAKES, MISSTATEMENTS AND MISFEASANCE

CASE SUMMARY

An Incongruous Development

In 2015, the Planning Department of the London Borough of Hammersmith and Fulham (LBHF) approved a rear mansard roof extension with an adjoining terrace at 3rd Floor level in a conservation area of Fulham.

The planning consent came as a surprise to the neighbouring resident because a rear extension at this height was unseen in the area. Furthermore, no other resident in similar houses on the same street had been allowed to build at 3rd floor level. The development meant that there would be a 4 story rear extension next to similar houses that were limited to 3 stories.

Mistakes and Omissions

The adjoining neighbours (The Neighbours) who had objected to the development on the grounds of loss of amenity were also surprised to find a number of errors and omissions in the planning report that lead to approving the development. All 3 favoured the applicant (The Applicant) to the detriment of The Neighbours:

1. The planning report made no mention of the creation of a new rear terrace at 3rd floor level which The Neighbours had objected to on the ground of loss of privacy (the terrace offering plunging views at close range into their bathroom and a rear bedroom)

2. The planning report also incorrectly claimed that the new additional extension at the rear would be within the maximum limit allowed. The extension would in reality go over the legal limit by a third.

3. An existing illegal rear rooftop at second floor level was treated as being a lawful terrace and included in the development. There was no mention in the planning report that when the rear extension was originally built in 1987, it was under the strict condition that none of the flat rooftops on this site could be used or converted into terraces, this in order to preserve The Neighbours' privacy. This past planning condition and its breach had been brought to the planning officer's attention by The Neighbours during the consultation period. However, instead of a acknowledging this fact, the planning officer's report treated the rear rooftop at second floor level as if it were a legal terrace without any mention of the site specific planning condition it breached or any related history.

Misstatements and Denial

The Neighbours wrote to the planning officers responsible for the report, Mr Graham Simpson and his Manager Mr Roy Asagba-Power who had approved the development. Mr Simpson was unresponsive while Mr Asagba-Power refused to acknowledge any error or omission, let alone the incongruity of the development. On the advice of a solicitor, The Neighbours then wrote to the Head of Planning Department at LBHF, Ms Juliemma McLoughlin, highlighting the 3 errors found in the report. However Ms McLoughlin did not respond to their letter and apparently referred the case back to M. Asagba-Power who did not respond either.

Upon The Neighbour's insistence, and instead of responding to the letter's points, M. Asagba-Power sent Mr Simpson alongside another planning officer to discuss the matter with The Neighbours on site. However, neither of the officers were aware of the letter and the issues raised in it. During the visit, Mr Simpson insisted that he had very carefully considered the development including the new terrace (which was later shown to be untrue). He acknowledged the intrusion of privacy the development would create but claimed that he could not refuse granting planning permission because privacy concerns never applied to bathrooms (which is untrue), and the intrusion of privacy in the bedroom below was insufficient in his view. He also justified the absence of mention of the new terrace in his report by saying that there was a 'limit' to how much content a report could contain (which later transpired to be another misstatement). The planning officers could not answer the other points raised in the letter to Ms Mcloughlin during the visit but they assured the neighbours that they would receive a formal response in the future.

As there was still no response to their letter or any other form of follow-up to the planning officer's visit, The Neighbours filed a formal complaint with the Council. The complaint was handled by M. Asagba-Power who declined it on the grounds that there had been no omission or error in the case.

The Neighbours did not agree with Mr Asagba-Power's conclusions and filled another complaint with LBHF (stage 2). This time they highlighted not only the points they had made to Ms McLoughlin but also the omission of the new terrace in the description of development published by LBHF during the consultation period for the new development.

Partial Acknowledgments and Questionable Interpretations of Planning Law

The complaint was handled outside the Planning Department by the Mr James Filus of the 'In Touch' team of LBHF. Mr Filus acknowledged the omission of the new terrace in the new planning process and upheld the complaint. The Planning Officers now acknowledged that they had omitted to consider the new terrace because it wasn't mentioned in the applicant's description of development. But they also claimed that they had not been made aware of this omission and that the new terrace had not been discussed with The Neighbours.

The Neighbours who had recorded their conversation with the planning officers produced the recording to Mr Filus who acknowledged that the new terrace had indeed been discussed and that there had been 'missed opportunities' by the planning officers.

The planning officers also partly acknowledged another error in the report. They agreed that the rear extension was indeed exceeding the maximum limit permitted by law, but claimed however that is was by a far lesser amount than The Neighbours' calculations showed (without providing their own calculations). They also dismissed the significance of this error despite the fact that their report clearly stated that the extension was allowable because it was below the limit. Mr Filus accepted the planning officers' response and did not give the complainants satisfaction on this point.

With regards to the second floor rear rooftop, The Neighbours had provided evidence that it had never been used as a terrace in spite of past attempts. According to Planning Law, a development built in contravention of a specific planning condition for that site is more severely controlled than a development built without planning permission (which only requires 5 years of existence to become lawful). The former needs ten years of continuous use in order to become lawful, a condition that was never met by the rear rooftop at second floor level. But the LBHF's Planning Department responded that being 'in situ' for a significant amount of time was sufficient for them. The Neighbours argued that being in situ was not equivalent to being in continuous use but Mr Filus accepted the Planning Department's loose interpretation and application of Planning Law and did not give the complainants satisfaction on this point either. As a result, an illegally converted rooftop in breach of LBHF's own planning conditions was now given the status of lawful terrace without meeting the legal requirements. This decision meant that there were now two rear terraces allowed by LBHF to intrude into The Neighbours' privacy without any measure taken, such as screens, to protect it.

A Delayed and Superficial Corrective Measure

Of all The Neighbours' reasons for concern regarding the incongruous development, Mr Filus only upheld the new third floor rear terrace's omission. This omission was acknowledged by Mr Filus as soon as he examined the complaint and before work started on the development. However construction was allowed to start while Mr Filus was considering the case and the new extension and terrace were built before Mr Filus published his conclusion, several weeks beyond the deadline for handling such a complaint.

Mr Filus considered that since the new rear terrace at third floor level had not been adequately considered, a retrospective planning application for this new terrace, which he had just allowed to materialize, would repair the 'injustice caused'. Mr Filus agreed that this retrospective application should not be handled by Mr Simpson or Mr Asagba-Power but declined The Neighbour's request to have the application reviewed by the council's planning committee instead of the Planning Department. Despite the evidence of malpractice by at least 3 planning officers and the obvious conflict of interest, Mr Filus refused to take the matter out of the planning department's control. No action was taken against the planning officers for their neglect, misstatements and abuse of the public's trust.

Conscious that the Planning Department could not be objective in reviewing their own mistake, the neighbours met with their ward councillors in order to have the new planning application taken to the Planning Committee. The councillor's response was positive but it took the neighbours several meetings, emails and telephone calls for any action to be taken. After over a month of insistence, Councillor Adronie Alford finally made a formal request to the planning department who declined the request because it was coming too late in the process. The Planning Department however gave Ms Alford the assurance that the neighbours' objection would be seriously taken into account.

Misfeasance and Abuse of the Public's Trust

 

The Council Endorses the Misfeasance

 

The Ombudsman Ignores the Core Complaint

 

The Ombudsman Misrepresents the Facts

 

The Ombudsman Dismisses the Case on False Pretences

 

Case Summary
Implications
Abuse of Authority
Corruption in Public Office
Is the LGO adequate?
Is the UK planning system out of control?

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