Summary: X complained about the Council’s decisions relating to protected trees on his land. We found fault because the Council did not properly assess the impact development might have on a tree that was protected by a Tree Preservation Order. We found that if the application had been properly considered, it is likely it would have been refused because of the likely damage to a protected tree. The Council agreed to our recommendations to remedy the injustice caused by the fault and which might help avoid it happening again in future.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council approved two applications without following the proper process. X said that:
• the Council did not have the information it needed to make its decisions;
• one of its case officer reports contains inaccuracies.
3. X said that because of this, they were subjected to costs to remove a tree and they will be overlooked from a terrace/balcony that has planning permission.

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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)

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. I discussed what had happened with one of the Council’s tree officers.
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.

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What I found

Planning applications

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:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring 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. 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.

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.

What happened

The TPO application

15. In X’s garden, there are trees subject to TPOs. X’s neighbour found cracks in their walls and contacted their building insurance company. The neighbour sought advice from a tree expert. The expert advised that one tree should be removed and the crown of another (which was close to the side of the neighbour’s house) should be significantly reduced.
16. The insurance company wrote to X alleging that the damage was caused by the roots of X’s trees. The insurance company applied to the Council to carry out work to the protected trees.
17. The TPO application was considered by a case officer, who wrote a report which included:
• a description of the proposed work and site;
• an appraisal of the impact the works would have on the amenity value of the area;
• comments from X that there was a lack of engineering and drainage information to support the claim that works were necessary; and
• the officer’s recommendation to approve the application, subject to conditions.
18. The TPO application was approved by another officer using delegated powers.
19. X was still unconvinced that the works were necessary, but reluctantly agreed to carry them out. X employed a tree surgeon who removed one tree and cut back the crown of another.

The planning application

20. After the tree works had been completed, the neighbours submitted a planning application to extend their house. The proposal included a first-floor balcony/terrace close to the boundary of X’s garden and the tree with the reduced crown.
21. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant but no mention of its decision to approve a TPO application;
• comments from neighbours about loss of parking, overshadowing, damage and noise caused by construction, a land ownership dispute, overlooking and loss of privacy, and potential damage to a protected tree;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, which were the principle of development, the visual impact of the proposal, the impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
22. The planning case officer report concluded that:
• the development would not cause an unacceptable impact as there were significant distances between it and neighbouring properties. It said the balcony at the side terrace overlooked ‘a field’, beyond which was X’s house about 30 metres away;
• the protected tree would not be affected during construction because it was ‘not located within the boundary and the site address and there was a considerable distance between the two’.
23. The application was not supported by:
• a plan showing the location and root protection areas of protected trees; or
• a tree survey or a scheme of works to show how damage would be avoided.

My enquiries

24. I asked the Council if the TPO application had been considered by a tree officer. The Council said that it did employ a tree officer at the time, and they could have been consulted.
25. I examined guidance in the relevant British Standards on works on or near protected trees. The guidance includes a formula to calculate the root protection areas for trees. I asked the Council:
• the stem diameter of the protected tree;
• the extent of the root protection area;
• whether the pillars supporting the balcony/terrace were within the root protection area; and
• how far each pillar was from the stem centre of the protected tree.
26. I discussed the case with the Council’s tree officer, who has visited the site. The tree officer said:
• the tree is closer than they expected, with the structure only 1.5m from the trunk of the tree;
• the tree was a mature native lime tree of significant value to public amenity. The tree also provided ecological and wildlife benefits;
• they would expect to be consulted on any application that was likely to have significant impact on a tree, especially protected trees;
• they would expect issues relating to the tree and root protection areas to be mentioned in the case officer report;
• if planning officers had consulted them, they would have recommended refusal because the tree was too close to the structure and damage to the health of the tree is likely to result;
• even if a way could be found to reduce damage to the roots during construction, the balcony would overhang about 30% of the root protection area, where normally a 20% maximum intrusion would apply;
• because a large root area would be under cover, roots would not be open to rainfall, and the soil could be subject to excessive compaction;
• the canopy was directly over the balcony/platform area and this could lead to conflict between those using the structure and the health of the tree;
• the best outcome would be for the balcony platform not to be built. If that is not now possible, the more the structure could be reduced, the better chance of the tree’s survival.

My findings

27. 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.

The TPO application

28. Before the Council made its decision to approve the TPO application, it considered:
• the application, including the tree expert’s report;
• objections from X; and
• policy and guidance considered relevant.
29. The Council followed the decision-making process I would expect and so I find not fault in relation to this decision.
30. X told me that construction work has not yet begun.

The planning application

31. The planning case officer said the protected tree would not be affected by the development, because there was a ‘considerable distance’ and the tree was on the other side of the boundary.
32. The report did not include information to show where protected trees were, where their root protection areas would likely be, how the development or construction methods might avoid damage to the tree. I would expect any council evaluating development near protected trees to consider issues such as these before deciding applications for development. The absence of evidence of consideration of key relevant issues is fault.
33. When we find fault, we must decide whether it caused an injustice to the individual complainant. As an individual, I consider it likely that X will feel disappointment and frustration because of what has happened.
34. If the Council had considered the proposal and its impact on the tree properly, I think it is likely the outcome would have been different. Unless concerns, like those expressed by the Council’s tree officer, were resolved, I would expect the Council would have refused the application.
35. I will recommend an apology to X for what has happened and ask the Council to consider service improvements to avoid recurrence in future.
36. If work near the tree has not been completed, the Council may be able to act to avoid damage to the tree. I will recommend it considers what might be done to protect the tree and to take reasonable steps to avoid damage.
37. I consider the fault and injustice it caused to be significant, and so I will ask the Council to refer this case to the relevant oversight and scrutiny committee.

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Agreed action

38. To remedy the injustice caused by the fault I have found and to avoid recurrence in the future, the Council has agreed to:
1. apologise to X for the disappointment, uncertainty and frustration caused by the fault I have found;
2. negotiate with the developer in consultation with its tree officer in an effort to ensure the tree is protected. The Council is prepared to compensate the developer for additional costs they may incur, including abortive development costs, and architectural re-design and planning fees;
3. review its service in relation to tree protection powers and make changes to practice and procedure and provide any officer training it finds necessary; and
4. refer this case to its relevant oversight and scrutiny committee.
39. The remedy will be carried out within the following time scales from the date of our final decision:
1. the apology will be sent within 4 weeks;
2. negotiations to protect the tree will begin immediately and be completed within 3 months;
3. the outcome of the review and any changes to practice and procedure will be reported to the Ombudsman within 4 months;
4. this case will be referred to the first available meeting of the appropriate oversight and scrutiny committee following receipt of our final decision on this complaint.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

41. I found fault in the way the Council considered a planning application that caused an injustice. I completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman