Summary: X complained about the Council’s failure to retain mature trees behind their home, which is a listed building. The mature trees were intended to provide screening from a new development and protect the setting of the listed building. We found fault because the Council has no record to show why it allowed existing trees to be replaced with smaller trees under a planting scheme. The Council agreed to the remedy we recommended.

The complaint

1. The person that complained to us will be referred to as X. The land behind X’s home had planning permission for development.
2. X complained about the Council’s failure to retain mature trees behind X’s home, which is a listed building.
3. X said because the Council did not retain the trees:
• it approved an application it would have otherwise refused;
• the setting of the listed building was not protected;
• the impact on their amenity from noise and dust from construction work at the site was greater because the trees were removed;
• their home and garden are overlooked from new dwellings on the site; and
• the value of their home went down because of the failure to protect their amenities.
4. X also complained about how the Council dealt with their complaints about what happened.
5. X would like to the Council to compensate them for the loss of privacy and the reduced value of their home.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. It is our decision whether to start, and when to end an investigation into a complaint or any part of a complaint the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

9. 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 the case with a planning manager.
10. 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 - applications

11. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
12. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
13. 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.
14. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
15. Most planning approvals relating to development will include a condition requiring compliance with approved plans. If after approval is granted, applicants want to carry out development without complying with planning conditions, they can apply to remove or vary the original condition. The Council will then decide whether to grant permission to change obligations required in the original application.
16. An application under section 73 of the Town and Country Planning Act 1990 may allow a developer to apply to carry out development without complying with conditions in original the approval. In other words, this section can be used to vary approved plans.

Listed building control

17. Buildings that are considered to have significant historic or architectural interest may be recorded and graded on the National Heritage List for England. The grades of listed buildings are as follows:
• Grade I – Buildings of exceptional interest;
• Grade II* – Buildings of particularly important/more than special interest;
• Grade II – buildings of special interest.
18. If a building is listed, it is subject to an additional layer of planning control and protection. In addition to any planning permission that may be required, any work to a listed building will also need listed building consent from the local planning authority.
19. Development proposals on sites next to or near to a listed building may need to take account of the impact proposals will have on the character and setting of the listed building.

Tree Preservation Orders

20. Councils may impose Tree Preservation Orders (TPO) on 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.
21. Once a TPO is in place, works cannot be carried out without written consent by the Council. 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

22. Several years ago, the Council considered a planning application for development behind X’s home, which is a grade II listed building.
23. The application documents included a heritage statement, which said the proposal was acceptable because it maintained a separation distance and the listed building was screened by established mature trees and vegetation to its boundaries.
24. 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;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including trees and landscaping, heritage and archaeology issues, impact on residential amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions. One of the conditions proposed submission and approval of a landscaping scheme.
25. In relation to the impact the development would have on residential amenities and the impact on the setting of the listed building, the case officer report said:
• the separation distances between X’s house and the nearest dwellings were adequate to protect privacy, though it was acknowledged that there would be some overlooking into X’s garden; and
• the proposed development’s impact on the listed building was acceptable because it maintained satisfactory separation distances and existing mature trees, which blocked views of the site, would be retained.
26. The Council approved the application subject to recommended conditions.
27. The Council later approved an application to discharge the planning condition relating to landscaping. The planning condition discharge plans showed existing mature trees would be replaced by new planting.
28. I spoke to a planning manager about what had happened. I asked why the Council had allowed existing trees to be replaced by new planting. The planning manager said:
• the Council did properly consider the impact on privacy but found the separation distances were adequate;
• the case officer report did indicate existing trees would be retained, but the landscape plans submitted with the application showed new planting in the place of existing trees. They (the planning manager) did not know why new trees were approved to replace existing trees, as there was no clear record to explain reasons on the planning file;
• it was possible the decision might have been connected to the health and condition of the existing trees. However, the officers involved no longer worked for the Council and there was no file note to confirm this;
• there was an email from the heritage officer to the planning case officer saying the landscaping plans were acceptable, but the email was imprecise and unclear. The planning manager would have expected the planning case officer to respond to this email with well-focused questions to clarify the reasons for the advice and a record to be kept on the planning file, but this did not happen;
• the developer had recently submitted a section 73 application to vary the plans in relation to a number of issues, including a significantly improved landscaping plan. The Council has not yet made its decision, but the section 73 application drawings include a larger planting buffer zone and a significant number of new quite mature, taller plants, between 3.5 and 5.5 metres high. The revised condition for a planting scheme would be time limited, but if the application was approved, the trees are planted and become established, the Council intended to use its TPO powers to protect them in the longer term;
• in their opinion, removal of the existing mature trees had caused temporary harm to the setting of the listed building, but they believed a new planting scheme along with TPO protection should provide a long term and satisfactory solution.
29. I discussed the Council’s explanation of what had happened and what it proposed to achieve with X. X was dissatisfied with the Council’s response. X said:
• if the Council had known mature trees on the boundary would be removed, it would have refused the original planning application;
• the Council had not explained why it was acceptable to replace existing mature trees with smaller replacements. The new trees would take years to establish and this would add further years of overlooking and adverse impact on the setting of the listed building. None of this would have happened if the Council had not allowed removal of existing mature trees;
• X intended to seek compensation through the courts for the impact removal of the existing mature trees has had on the value of X’s home.
30. I made further enquiries relating to X’s complaints about the complaints process and the disturbance caused by construction work. The Council responded to say:
• it did consider concerns about construction work but did not find enough to take formal enforcement action. It said it monitored the site during later visits;
• earlier letters sent by X were taken as complaints about what had happened on the site, and so were dealt with by planning officers rather than considered through the corporate complaints process. There was a short delay in responding to the stage 1 complaint which it had apologised for. X later asked for more time to submit a stage 2 complaint, which it agreed.
31. Though there is a lack of written evidence on the planning file, I did not seek to interview the officers involved at the time the decisions were made, because:
• recollections fade over time and statements made long after the events are often of limited evidential value; and
• our investigations need to be proportionate, and I think it is unlikely such an enquiry would make a significant difference to the outcome of my investigation. In reaching this decision, I have taken account of more recent steps taken by the Council to resolve matters.

My findings

Impact on X’s residential amenities

32. The case officer report shows the impact on residential amenities was considered before a decision was made. The Council accepted there was an impact, but decided the development was acceptable.
33. Before it made its decision, the Council considered comments from consultees, relevant policy and guidance, the application plans and the relationships between proposed and existing buildings. This is the decision-making process we would expect and so I find no fault in how the Council considered overlooking and privacy.

Failure relating to retention of existing trees

34. 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.
35. The case officer report for the original application makes it clear that the impact on the listed building would be acceptable, partly because existing mature trees would be retained. The report indicates the trees would be retained, but they were removed. There is no evidence on the planning file to explain or justify why removal of the trees was necessary or acceptable. This is fault.

Injustice caused by the fault

36. X has been complaining about what has happened for several years. They expected that the trees behind their home would be retained and I understand why they are upset and angry that they were not. They would like the Council to compensate them for the impact the new development will have on the value of their home, the disturbance suffered during construction work and for the time and trouble they have spent on trying to deal with the problems they have faced. X has also suggested that if the Council had known the existing trees would not be retained, the whole application would have been refused.
37. Because the fault I found is in the Council’s record keeping, I cannot say, even on the balance of probabilities, whether there was fault in the Council's consideration about retention of the screening trees. I can see the planting scheme was considered, but I cannot see the reasons for accepting it. There are possible reasons, but we can only speculate now on what they might have been. Trees do sometimes suffer from disease or found to be in poor condition, and, when considered necessary for planning purposes, councils can require replacements as an alternative to retention. On other occasions, different species are considered more suitable for the purposes required by the planning authority.
38. For these reasons, I am not persuaded that, but for the fault, it is more likely than not the outcome would have been different.
39. Even if I had evidence to show the decision to allow removal was unjustified, I would have to take account of what the Council has done since X complained. I can see it has recognised the problem, acted to improve the listed building’s setting by working with the developer to resolve the issue.
40. Until new trees grow, there will be a gap where the visual contrast between the new development and listed building remains stark, but we cannot make recommendations that will undo all that has happened. In relation to the need to protect the setting of the listed building, it is unlikely we could recommend the Council should do more than it is currently attempting through the section 73 application process. I also accept that it is quite possible that a planned scheme with specially selected trees and a larger planting area may, in the long term, provide better protection for the listed building’s setting than would the original trees.
41. X says the loss of the trees has caused a significant impact on the valuer of their home. I do not doubt this is possible, but the fault I have found does not justify a recommendation to compensate X for this loss. This is because the purpose of the Council’s planning powers here is to protect heritage assets for the public, not to safeguard the private interests of those who own them. However, I do consider that the fault I found has caused X unnecessary confusion, uncertainty, upset and frustration, and so I asked the Council to provide a personal remedy for X.
42. I also recommended the Council carries out a review to avoid recurrence of the fault I have found.
43. The Council agreed to my recommendations.

Other matters

44. X also complained about how the Council dealt with their complaints about what had happened, and the impact caused by construction work.
45. I decided not to investigate these issues further, as I am unlikely to find fault, recommend a remedy or reach any other meaningful outcome.

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Agreed action

46. The Council has agreed to:
1. write to X and apologise for the impact caused by the fault I found; and
2. pay X £300 in recognition of the confusion, uncertainty, frustration and upset caused by the fault I found.

This will happen within one month from the date of our final decision.

47. To avoid the likelihood of the same fault happening again, the Council will also review what has happened, make any changes considered necessary to ensure it has adequate records, and provide updates/training to planning officers of changes it decides to make. This will happen within three months from the date of our final decision.
48. The Council will provide us with evidence it has complied with the above actions.

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Final decision

49. I found fault that caused an injustice and may occur again. I have completed my investigation because the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman