Summary: X complained about the Council’s failure to protect a hedgerow, part of which was removed causing damage to public visual amenity and the environment. We found fault in the way the Council made its planning decision, and the same fault might happen again. The Council has agreed to review its policy, guidance, work practice and procedure, to make recurrence of the same fault less likely.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council failed to protect a hedgerow when it approved development on land near X’s home.
3. X said that because of this, the developer removed a large section of the hedge, which may benefit the new development, but harms the environment and public amenity.

Back to top

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)

Back to top

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 from an earlier outline approval and a more recent full application approval, including the plans and the case officer reports.
7. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• the planning history of the application site;
• protection of ecological and heritage assets; and
• the impact on neighbouring and public amenity.
10. 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.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer reports 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.
13. 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.
14. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
15. 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.
16. Planning decisions can be for ‘full’ applications, where all or most details needed to make a decision are provided by the applicant. Alternatively, applicants can submit ‘outline’ applications, with key details so the principle of development can be considered. If approved, outline applications can be made lawful by the submission and approval of ‘reserved matters’ applications, where remaining details are considered.

What happened

17. X lives near a site that has been subject to a number of planning applications and approvals in recent years, including an outline application approval and a more recent full application approval.
18. X does not live close enough to the site to be personally affected, but complains the environment and public are affected by the most recent approval, which did not protect a long boundary hedge to the development site. X walks on the footpath, next to the hedge.
19. X said that since the grant of permission for the full planning application, the developer has removed a large section of the hedge to give occupants of the new development views over open countryside, but this has harmed the environment and public amenity.
20. X thought the hedge was protected by a planning condition attached to an earlier outline approval, which required retention of the existing hedgerow. The purpose of that condition was to protect the visual amenity and character and appearance of the area.
21. After a new permission on a full plans application was granted and parts of the hedgerow removed, X complained to the Council that the planning condition on the earlier approval was in breach.
22. The Council’s planning enforcement officer explained there was no breach of planning control, because the planning permission for the full application did not include a condition protecting the hedgerow.
23. I spoke to the Council’s tree officer, who said:
• they had advised the planning case officer on the earlier outline application that they had no objection, subject to retention of the boundary hedge and trees to protect the visual character of the local area;
• they did not know why this condition was not carried through to the full plans application approval and they were surprised this had not happened, because the hedgerow had value to public visual amenity;
• after being consulted on the full plans application, they had not recommended a condition, because they expected there would be a standard condition to protect the hedgerow as part of general landscaping controls;
• since the developer had removed part of the hedgerow, they had applied for a TPO to protect the parts which remain. This process was ongoing.
24. I asked the planning case officer why the condition protecting the hedgerow from the outline approval was not carried forward to the most recent full application, and they said they did not know.

My findings

25. The planning history of the site shows the Council had previously decided there was good reason to protect the boundary hedge, as the earlier outline approval had included a condition to do this. This did not happen when the Council granted approval for the full plans application, and there is no explanation in the case officer report to explain the difference in approach. This is fault.
26. But for the fault, I think it is likely the Council would have used a planning condition to protect the hedge.
27. X is not caused a personal injustice by what has happened but is upset about the impact caused by the loss of a large section of the hedgerow. This happened because the Council did not have planning control to prevent it. I will ask the Council to apologise for the disappointment and confusion caused by the fault.
28. The loss of parts of the hedgerow affects the natural environment and causes an adverse impact on the visual amenity from public views. The same fault could happen again, so I asked the Council to review its practice and procedure to avoid recurrence. The Council has agreed to my recommendations.

Back to top

Agreed action

29. The Council has agreed to:
1. apologise to X for its failure to properly consider protection of the hedgerow before making its full plans application decision. It will do this within one month from the date of my final decision; and
2. review what has happened and decide whether any changes to policy, guidance, practice or working procedures are necessary to avoid similar fault happening again. It will complete its review within three months from the date of my final decision.
30. The Council will provide us with evidence it has complied with the above actions within the timescales required.

Back to top

Final decision

31. I found fault that might happen again. I completed my investigation because the Council agreed to my recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman