Summary: X complained the Council failed to ensure its contractor complied with planning conditions that were meant to ensure wildlife was not disturbed when work was carried out on a hedgerow. We found no fault in the way the Council acted.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council allowed its contractor to carry out work on a hedgerow that was in breach of two of its planning conditions, because the work was carried out:
• during bird nesting season; and
• in breach of a scheme meant to protect hedgehogs.
3. X said they found the Council’s failure to comply with the conditions was distressing and frustrating.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’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

6. I read the complaint and discussed it with X. 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.
7. I interviewed one of the Council’s project managers and read copies of emails between the Council and its contractor. I discussed the complaint with a senior planning manager.
8. I gave the Council and X an opportunity to comment on a draft of this decision and considered the comments I received.

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What I found

9. There are two separate council departments involved in the issues raised by this complaint.
10. The Council’s asset management department applied for planning permission for the development and employed a contractor to carry out work on the site.
11. The Council’s planning department considered the proposal, dealt with the application through to approval by its planning committee, and also subsequent allegations of breaches of planning conditions.
12. This decision focuses on the role of the Council’s asset management department.

Planning law and guidance

13. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
14. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
15. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
16. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
17. Conditions can limit or control a grant of planning permission or the way it should be implemented. Councils often require evidence to show the condition requirements were met, and so developers should apply to ‘discharge’ the conditions. Councils consider the evidence the developer provides and, if satisfied, will issue a discharge notice.
18. Councils sometimes need to apply for planning permission for their own developments. When this happens and planning controls are breached, planning authorities cannot take formal action against their own councils. However, we expect them to treat their planning breaches with the same rigour and determination as they would against a breach of planning control by any private individual.

What happened

The planning conditions

19. The Council as planning authority considered and approved a planning application for development from its asset management department. The approval included two conditions, which imposed the following:
• There should be no work on trees, hedgerows and shrubs in the nesting season (1 March to 31 August) unless an ecologist had carried out a detailed check for nests 24 hours before work commenced.
• Prior to the commencement of development, details of measures to protect hedgehogs on the site should be provided and approved, and the scheme should be implemented and adhered to at all times, both during construction work and the operation of the development.
20. In the January after planning permission was granted, the asset management department submitted a construction and environment management plan (CEMP) which was meant to address a number of conditions, including hedgehog protection measures.
21. The planning officers shared the CEMP with the Council’s Nature Team. The Nature Team objected to the hedgehog protection measures and recommended refusal until the scheme was varied to ensure an Ecological Clerk of Works was on site to ensure hedgehogs were not disturbed or removed. The Nature Team’s comments were sent to the planning department a week after the work to clear undergrowth was completed.
22. The Council discharged the condition, including the CEMP. The case officer’s report does not mention the Nature Team’s objections.
23. The contractor did submit a revised CEMP which appears to take account of the Nature Team’s concerns. The contractor told me their work on site has since followed the terms of the revised CEMP.

Work on the site

24. The asset management department instructed a contractor to carry out work on a hedge on the site, which involved flailing the undergrowth. The Council provided evidence to show that the work was carried out and completed before the end of February.
25. Members of the public reported what had happened to the Council and it sent an ecologist to check. The ecologist said there was no evidence to show that nesting birds were disturbed by the work.
26. X suspected the work was done during the bird nesting season, which started in March. I interviewed the Council’s contractor who provided digital photos that showed the work was carried out in mid-February. An asset management officer provided copies of emails between the contractor and Council to corroborate the exact date.
27. However, the work on the hedge was completed before the Council had discharged the condition requiring a hedgehog protection scheme. I asked the Council whether this was a breach of its condition. Hedgehogs typically hibernate, often in piles of leaves and undergrowth, until March. I asked the Council’s planning officers whether the work was in breach of the condition meant to protect hedgehogs.
28. The Council’s planning officers said there was no breach, because in mid-February the condition was not legally enforceable. They explained that when an application is approved, planning control begins when work on the approved development starts, and this did not happen until early summer.
29. The Town and Country Planning Act 1990 says that:
• development can be taken to have started when ‘material operations’ begin; and
• ‘material operations’ means construction of a building, digging a trench, laying a pipe or foundation, laying out a road or changing the use of any land.
30. The Act’s definition of material operations does not extend to works carried out to prepare a site for development, and that was what had happened when the Council’s contractor flailed the undergrowth beneath the hedge.
31. Apart from planning controls, there are other powers to protect wildlife. Certain animals have special ‘protected species’ status, which includes protections for their habitats.
32. Other wild animals have more limited legal protection, but the police can prosecute anyone who:
• kills, takes or injures any wild bird, or a nest that is in use; or
• kills or captures other wild animals, including hedgehogs.
33. I asked a senior planning manager to comment on the discharge of the CEMP. The manager agreed the case officer’s report should have shown the Nature Team’s comments had been considered and what the case officer made of them. The manager explained that while the planning authority was not obliged to follow the Nature Team’s advice, the case officer’s report should have provided reasons for not doing so.
34. I asked whether the Council could correct its discharge decision and formally recognise or approve the revised version of the CEMP. The manager said this would serve no useful purpose, because the original CEMP had been discharged and was now lawful. Because of this, even if a further plan was approved, work on site could follow either version of the CEMP. Meanwhile, there was nothing to stop contractors working on site to higher standards than were required by the hedgehog planning condition, including those in the revised CEMP.

My findings

35. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
36. The planning authority decided to impose conditions to protect wildlife on the site, but these conditions could not be enforced until the approved development had legally commenced. I am satisfied this did not happen until early summer, and so there is no fault in the Council’s decision that work on the hedge was not a breach of planning control.
37. During the course of this investigation, a question arose about whether we would expect the Council to have taken more care to ensure hedgehogs on site were properly protected. In other words, while all landowners and developers have to comply with planning and environmental law, should councils, when developing land they own or control, be expected to do more?
38. If we found the Council was at fault for not having interim measures in place, we would in effect be imposing obligations on this and all local authorities that go beyond the law. While I understand X is frustrated and disappointed by what has happened, it is not our role to impose obligations in areas where parliament has already legislated.
39. In response to an earlier draft of this decision, X asked whether we could make recommendations for the Council that might improve its communications and better understand biodiversity. We can only make recommendations where we find fault.

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Final decision

40. I found no fault in the way the Council acted and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman