Summary: X complained about the way the Council dealt with planning and tree protection matters on land next to their home. We found fault that caused an injustice. The Council agreed to our recommendations to remedy the injustice that was caused by the fault we found.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council:
• allowed the removal of a tree protected by a Tree Preservation Order (TPO);
• failed to ensure their neighbour’s driveway was made from porous materials so that water may drain through it. X also said the Council took too long to deal with their allegations of breaches of planning control; and
• approved a planning application without controlling a fence that obstructed their view of the highway and blocks a footpath.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. 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. I made enquiries and interviewed a tree officer.
6. I gave the Council and X an opportunity to comment on a draft of this decision and I took account of the comments I received.

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What I found

Planning law and guidance

7. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.
10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. 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.
12. Not all development requires planning permission from local planning authorities. Certain developments are deemed permitted, providing they fall within limits set within regulations. This type of development is known as ‘permitted development’.

Tree Preservation Orders

13. 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.
14. 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 6 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.

Planning and land drainage

15. The impact development might have on land drainage can be a material planning consideration. This can happen if land is in a known flood zone or when drainage problems are raised in an objection letter to a planning application. When this happens, we expect to see evidence to show the Council had considered drainage issues before it made its decision. Without doing so, we cannot know whether the Council has exercised its discretion properly.
16. However, even if we find evidence of drainage related fault, it does not mean we will expect the Council to provide a significant remedy for the consequences. A grant of planning permission does not allow developers to cause damage to their neighbour’s land. Because of this, we would not expect councils to take responsibility for the acts or omissions of private individuals. Remedies for these matters are available to landowners in the civil courts and tribunals.

What happened

The protected tree

17. A tree on X’s neighbour’s land was protected by a TPO. Twice the neighbour applied to remove the tree, but the Council refused the application. A third application was approved subject to a condition that a replacement tree would be replanted on land nearby.
18. A tree officer told me that:
• the tree was of significant value to public amenity and had recently been assessed as requiring protection;
• the Council should have a record to show why the decision was made to allow removal of the tree, but none exist;
• looking at the evidence that does exist, the evidence to justify removal is weak, and if the application had been properly considered against normal standards it is most likely to have been refused;
• though it is possible to allow removal of trees, good evidence, such as evidence from a structural engineer to show damage to property, or that vulnerable individuals were at risk, would be needed. There is no evidence to suggest that significant reasons had existed at the time the decision was made;
• a replacement tree had been planted but was destroyed last year. The Council intended to plant a semi-mature replacement tree in one of its own parks. This would ensure the tree could be better protected and maintained;
• since the TPO application had allowed removal of the original tree, the Council had changed its procedures to ensure proper computer records were kept of every decision, including analysis of the issues, and details of evidence required to support a decision. Also, any decision to allow removal of a protected tree now required checking and approval by two tree officers;
• there are sufficient tree officers to carry out the service’s work and further technical improvements are planned.
19. In response to an earlier draft of this decision, the Council explained that its Development Management Transformation project is still underway and should be implemented early next year. Th assessment of staffing levels was a priority and has already been implemented.

Driveway materials and delay in enforcement action

20. The Council’s planning enforcement policy sets time limits in which it should respond to matters reported to it. The Council accepts it took too long to investigate X’s allegation of a breach of planning control. The Council said that this was due to staffing issues at the time, and that it was actively attempting to recruit more officers.
21. X had complained their neighbour’s driveway was not permitted development because it was not made from porous materials. X said that, because of this, surface water went onto the highway and their land.
22. The Council said its planning officer did visit the site and ran water from a hose on the same area for several minutes, and it soaked through the surface of the driveway. It said the neighbour also supplied information from the contractor that showed porous materials were used.

Approval of a fence

23. The Council received a retrospective planning application which included a fence near the highway.
24. Before making its decision, the Council considered the application, the height and location of the fence, relevant planning law and guidance, comments from the public and other consultees, including the highway authority, which had no objections. The case officer said that there had never been a public walkway in the location of the fence. The details of how the decision was made can be found in the planning case officer’s report.
25. The Council approved the application.

My findings

26. 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.
27. My findings on the complaints are as follows.

The protected tree

28. The Council does not have a record of why it decided to allow removal of a tree subject to a TPO. This is fault.
29. But for the fault, it is likely the application would have been refused. Since this happened, the Council has made changes to its working practices and procedures to improve its service. Because of this, I have made no recommendations for further reviews or service improvements.
30. However, I did recommend a remedy for the injustice caused by the fault I have found. I will also require evidence to show the Council has planted the replacement tree.

Driveway materials and delay in enforcement action

31. The Council accepted there was delay in investigating X’s allegation of a breach of planning control. This is fault. I will recommend the Council carries out a review so it can consider whether it has the resources it needs to carry out its enforcement function.
32. Before deciding not to take enforcement action, the Council considered X’s allegation, its planning powers and the evidence found following its investigation. This is the investigation process we expect and so I find no fault in the Council’s decision not to take enforcement action.

Approval of a fence

33. Before deciding to approve a retrospective planning application for the fence, the Council considered the application, comments from neighbours and other consultees and relevant planning law and guidance. This is the decision-making process we expect and so I find no fault.

Injustice caused by the fault found

34. X is frustrated, saddened, and disappointed by the Council’s failure to protect a mature tree, which benefited public visual amenity. I recommended a remedy for the injustice caused, which the Council has agreed to carry out.

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Agreed action

35. To remedy the injustice caused by the fault I have found, the Council has agreed to:
1. apologise to X and pay £250 for the frustration, disappointment and avoidable time and trouble that was caused. This will happen within 4 weeks of the date of my final decision.
2. provide evidence to show an additional and suitable replacement tree is planted during this planting season, which is between November and March. This will happen within 3 months from the date of my final decision.

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Final decision

36. I found fault that caused an injustice and have completed my investigation because the Council accepted my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman