The Ombudsman's final decision
Summary: Mr X complained about the Council’s decisions to allow removal of trees in his neighbour’s garden. Mr X said the loss of trees affects his amenity. We ended our investigation as it is unlikely to result in a finding of fault, a remedy for Mr X or others, or any other meaningful outcome.
The complaint
Mr X complained about the Council’s decisions to allow removal of trees on land behind his home.
Mr X said the trees screened his rear garden and were a benefit to the environment. He would like the Council to require the landowner to replace them.
Mr X also complained that, at the time one of the applications was made, the landowner was a council officer, and this created a conflict of interest.
The Ombudsman’s role and powers
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 an organisation’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) We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may use our discretion and decide not start or continue with an investigation if we consider: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I read the complaint and invited Mr X to discuss it with me. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
I gave Mr X and the Council an opportunity to comment on an earlier draft of this decision. I considered the comments I received before making a final decision.
What I found
Planning law and guidance Not all planning decisions are made by council planning committees. Councils may delegate decisions to planning officers to make some decisions, restricted to circumstances set out in delegation schemes. Delegation schemes are found in a council’s constitution.
Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
Planning considerations include things like: access to the highway; protection of ecological and heritage assets; and the impact on neighbouring amenity.
Planning considerations do not include things like: views from a property; the impact of development on property value; and private rights and interests in land.
Planning guidance and policy should not be treated as if it creates binding rules that must be followed. While councils must take account of relevant policy along with other material planning considerations, it is not unusual for different policies or guidance statements to conflict with each other and fall on either side of the ‘planning balance’. It is the planning authority’s role to ‘weigh’ the different considerations and reach a judgement on the application.
Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as: cutting down; topping; lopping; uprooting; and wilful damage and destruction.
Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within six months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.
Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
Trees in Conservation Areas are protected by statute. An individual who intends to remove or carry out work on trees in Conservation Areas must give notice to the Council. These notices are an application for consent, so they cannot be refused or accepted with conditions. It is an opportunity for the Council to decide whether to protect trees by making a TPO.
The Council’s delegation scheme says that all matters relating to the committees’ functions are delegated to the Director of Environment and Regeneration, apart from exceptions, which include: where the proposal involves the Council either as applicant or landowner and the scheme is not of a minor nature; and where the applicant is a councillor or council officer.
Details of how a council considered a planning application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
However, the courts have made it clear that case officer reports: do not need to include every possible planning consideration, but just the principal controversial issues; do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
Background
Mr X lives in a Conservation Area. The rear of Mr X’s house is more than 40 metres from his neighbour’s rear garden. The Council received notice from a person indicating an intention to remove some of the trees in the rear garden that were not protected by a TPO. The notice was considered by a tree officer who decided not to protect the trees with a TPO.
The neighbour later applied for planning permission to build a rear extension and carry out other works, including removal of trees for purposes related to the development and landscaping.
The Council’s planning case officer considered the application and wrote a report setting out their analysis and recommendations. The case officer’s report included: a description of the proposal and site; a summary of relevant planning history, including the notice to remove trees on the site; comments from Mr X, and other neighbours; planning policy and guidance including that which relates to tree protection and nature conservation; an appraisal of the main planning considerations, including a tree survey, removal of trees in the front garden, and the trees already removed in the rear garden, the impact on neighbouring amenity, and transport and parking; and the officer’s recommendation to approve the application, subject to planning conditions.
The Council’s planning committee approved the application subject to the recommended conditions.
Neither the planning application nor tree notice were submitted by an officer. The name on both is a new owner. The Council said that, after Mr X complained, it checked the land registry to find out who had owned the neighbour’s house at the times the notice and application were submitted. The land registry indicated that the house was ‘pending transfer’ a few days after the tree notice was submitted. The planning application was submitted a few weeks after the pending transfer date.
Mr X said the Council had failed to consider policies in its local plan, when it allowed removal of mature trees. In his response to an earlier draft of this decision, Mr X said that some of the trees that were removed were felled without the Council’s permission.
My findings
We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
Before we begin or continue our investigations, we consider two, linked questions, which are: Is it likely there was fault?
Is it likely any fault caused a significant injustice?
If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide: not to investigate; or to end an investigation we have already started.
Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
I think it is unlikely that further investigation is unlikely to result in a finding of fault, a remedy for Mr X or any other meaningful outcome, my reasons are as follows: Before it made its decision to allow development on the neighbour’s land, the Council considered the application plans, comments from the public, local and national policy and the main planning considerations. The Council followed the decision making process we would expect and so I find no evidence of fault.
The case officer’s report for the planning application shows the Council considered a tree survey listing trees to be removed for development and for landscaping purposes. Trees in both front and rear gardens were also considered, as was the planning history which showed the Council took account of its tree officer’s decision relating to the tree notice.
Mr X is concerned that an officer was the landowner when the tree notice was submitted. The officer did not submit either the tree notice, or the planning application. I have seen no evidence that the delegation scheme was not followed.
Mr X has a significant distance between the rear of his home and the development site. The purpose of council tree protection powers is to protect the public, generally, rather than the rights and interests of private individuals. Even if we found evidence of fault in the way the Council made its decision relating to removal of trees on the site, I think it is unlikely we would find a personal injustice we should remedy.
If trees have been removed without planning permission, the allegation should be referred to and decided by the Council’s planning enforcement officers. We are not a planning enforcement body, so cannot decide what action should be taken in relation to alleged breaches of planning control. We are not an appeal body, so if allegations have already been considered against enforcement powers and decisions about whether or how to use planning powers have been made, we cannot comment in the absence of fault in the decision making process.
Final decision
I ended my investigation as I am unlikely to find fault in the way the Council made its decisions, recommend a remedy for Mr X or others, or provide any other meaningful outcome.
Investigator's decision on behalf of the Ombudsman