Summary: We will not investigate this complaint about the Council’s handling of tree issues associated with developments behind the complainant’s home. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. There is not enough evidence of fault causing the complainant a significant injustice.

The complaint

1. The complainant, whom I refer to as Mr X, says, in summary, the Council failed to properly consider the trees within his garden when it determined a planning application for development on an adjoining site. He is concerned the development will have a detrimental impact on his trees, and that he could be held liable if they were to fall on the new buildings in the future.
2. Mr X also says the Council failed to take appropriate action against groundworks at another property which affected trees within the development site.

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The Ombudsman’s role and powers

3. The Ombudsman can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 do not start an investigation if we decide:

• 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.

(Local Government Act 1974, section 24A(6))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence,
• the Ombudsman’s Assessment Code,
• Information about the planning applications for the site, available on the Council’s website.

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My assessment

6. Before we investigate a complaint, we need evidence to show the individual complainant was caused a significant injustice by the Council’s actions. In the context of a complaint about a planning application, this means we need clear evidence to show that, but for any alleged fault, it is likely the planning outcome of would have been different.
7. In my view, there is not enough evidence to conclude that any fault in how the Council handled or determined the planning application is likely to have affected the outcome here. So, I do not consider Mr X has suffered a significant injustice as a result of the alleged errors by the Council. The Ombudsman will therefore not investigate this part of the complaint. In reaching this view, I am particularly mindful that:
• The proposed ground floor site plan submitted with the application shows the buildings are located outside the root protection zone of Mr X’s trees. An arboricultural implications report and method statement also accompanied the application;
• The arboricultural officer who commented on the application was also responsible for commenting on some of the previously refused applications. He was therefore aware of the planning history and tree issues relating to the site, and was entitled to provide his professional judgement on whether the amendments addressed the previous reason for refusal.
• The summary of objections in the Committee report includes concern about potential root damage to trees. The report goes on to highlight the relevant tree planning policy, and finds that changes to the siting of the proposed buildings allows for a greater distance from the root protection areas of nearby trees, and overcomes concerns raised by the Planning Inspector.
• A condition was imposed on the planning permission requiring the submission of a tree protection plan and method statement. The information submitted to discharge this condition shows where protective fencing and ground protection will be used near to Mr X’s trees.
• The Council’s complaint responses provide further explanation as to why the proposal was deemed to have overcome the previous reasons for refusal.
• Mr X’s trees are subject to tree preservation orders and are within a conservation area, so the Council will retain control over any future requests for tree works by occupants of the new buildings.
8. I also appreciate Mr X is concerned that groundworks at another property have had a negative impact on trees within the development site. But, given the distance between these works/trees and Mr X’s property, I am not persuaded that any fault in the Council’s response to the works causes him a significant injustice. So, we will not pursue this part of the complaint either.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence of fault causing him a significant injustice.

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Investigator's decision on behalf of the Ombudsman