Summary: Mr B complains that tree reports considered by the Council when granting planning permission for the construction of a pavilion in a park do not comply with British Standards. He also says the Council failed to take enforcement action in respect of breaches of planning permission. There are no grounds to criticise the Council. There is no requirement for tree reports to comply with British Standards. The Council properly investigated Mr B’s concerns about breaches of planning permission and was entitled to decide enforcement action was not warranted.

The complaint

1. Mr B complains that tree reports considered by the Council when granting planning permission for the erection of a pavilion do not comply with British Standards. He also says the Council has failed to take enforcement action in relation to breaches of planning permission.

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The Ombudsman’s role and powers

2. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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 have:
• considered all the information provided by Mr B together with documents on the Council’s website;
• made enquiries of the Council and considered its comments and the documents it provided; and
• watched a recording of the planning committee meeting.
6. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Planning law and guidance

7. 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 impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

Key facts

8. The Council applied for planning permission to erect a pavilion in a park. In support of the application it submitted a tree survey report by external consultants. The purpose of the report was to consider the potential impact of the proposal on trees on the site and to provide recommendations.
9. The report concluded the root protection area (RPA) of only one tree (Tree 4) would be affected by the proposed development and only by 3-4%. This was considered acceptable. The report also concluded there was no conflict with the canopy spreads of any of the trees. The report stated the construction of the pavilion would require sensitive positioning to minimise the impact on retained trees. The author calculated the RPAs of the trees in an appendix to the report.
10. The case officer prepared a detailed report on the application which was considered by the planning committee. At the committee meeting Members decided to defer the application to allow details of the proposed soft landscaping scheme to be provided.
11. Following concerns raised by Mr B about the contents of the tree report, the case officer requested a more detailed tree survey to enable the local planning authority to properly consider the impact of the proposed development on existing trees.
12. The original tree report showed the RPA’s as circles centred on the main stems of the trees. But there could potentially be asymmetrical route development because of the presence of adjacent roads and pavements so more of the protected areas of the root systems may be within the park than shown on the diagram. In the later report, the author took the worst case scenario and assumed that 100% of the RPA’s lay within the park and, on this basis, concluded that the amount of RPA incursion to Tree 4 would increase to approximately 8% and the RPA of Tree 5 would also be incurred by less than 5%.
13. The author of the report considered both of these incursions were acceptable. But, to reduce the impact further, the pavilion would be constructed on screw piles which would have a negligible effect on the roots. In addition, a small gap between the bottom of the pavilion and the ground would continue to allow for gaseous and water exchange between the air and the adventitious rootlets, the majority of which lie within the top 100 mm of the soil. The report confirmed there was no conflict with the canopy spread of any of the trees.
14. The report stated construction traffic and material storage areas would be contained on existing hardstanding away from the retained trees and that protective barrier fencing would be provided to protect trees during construction work.
15. The case officer prepared an amended report for the committee before the next meeting. Members considered the application and voted to grant planning permission subject to conditions.
16. Mr B subsequently complained to the Council that the construction work was not being carried out in accordance with the planning permission. Enforcement officers investigated Mr B’s concerns and concluded there were no grounds to take enforcement action.

Analysis

Tree reports

17. The impact on trees is a material planning consideration which must be taken into account by the Council when deciding whether to grant planning permission for a proposed development.
18. Local planning authorities have a duty to ensure they use planning conditions to provide for tree preservation and planting, where appropriate.
19. In this case, the case officer informed Mr B that a tree report in accordance with British Standard 5837 would be commissioned. The author of the tree reports stated they had been prepared in accordance with British Standard BS 5837: 2012 Trees in relation to design, demolition and construction. But Mr B says the reports do not meet the necessary requirements in several respects.
20. It is not for the Ombudsman to decide whether the tree reports comply with BS 5837 2012. For planning purposes, there is no requirement for tree reports to comply with British Standards. It is a matter for the case officer’s professional judgement as to whether a tree report submitted in support of a planning application is adequate. The case officer was satisfied with the contents of the report. This is a decision she is entitled to make and there are no grounds for the Ombudsman to question her judgement.
21. The case officer prepared a detailed report for the planning committee including a section on the impact on trees. It is for Members of the planning committee to weigh all factors in the case, including the impact on trees, when deciding whether to grant planning permission. Members were aware of residents’ concerns about the trees because of written objections received. In addition, a member of the public addressed the committee on behalf of local residents and raised the issue of damage to mature trees. It was open to Members to refuse the application or defer it pending the submission of further information if they had concerns. Members raised no concerns about the impact on trees or the contents of the tree report during the meeting.

Enforcement action

22. Planning permission was granted subject to a condition that the works were carried out in complete accordance with the tree survey report and arboricultural method statement in order to protect trees on or adjacent to the development site.
23. Mr B says the works carried out did not comply with the recommendations in the tree report but the Council failed to take enforcement action when he brought this to its attention. He reported that:
• The tree report said the pavilion would be constructed on screw piles and there would be a small gap between the bottom of the pavilion and the ground which would allow for gaseous and water exchange between the air and the adventitious rootlets. But driven piles were used and no gap was left;
• the report stated “no mechanical digging or scraping is permitted within a RPA” but mechanical digging was carried out within the RPA’s of at least two trees;
• The report stated that, during construction, RPA’s must not be breached including by transporting or storing materials within them but materials were transported and stored within the RPA’s of two trees; and
• a tree was pruned despite no permission being granted for this.
24. The Council’s enforcement team investigated these issues, including visiting the site.
25. Officers were satisfied the pavilion had been erected in the correct location. They explained that screw driven piles were not used because a contractor could not be arranged within the necessary timeframe so, instead, steel driven piles were used. These were smaller in diameter than the screw driven piles so the ground disturbance and potential risk of damage to the tree roots was less than originally proposed. Officers were therefore satisfied that, although there had been a technical departure from the report, no formal action was necessary.
26. The Council accepted the amount of materials needing to be stored on the site exceeded that which was originally envisaged by the team who submitted the planning application. But it’s building control department confirmed the soil in the area was sandy gravel and not clay. Officers were satisfied that, because of the type of soil, there was a reduced risk of compaction and subsequent damage to the tree roots arising from storage and transportation of materials within the RPA. They were satisfied that, although there was a technical departure from the submitted details, this did not cause enough damage to warrant any remedial action or further investigation.
27. The Council’s construction and property manager advised the enforcement team that he asked for the tree to be pruned because the ends of some branches over the path were hanging low enough to hit people on the head and were also likely to be damaged by the protective fencing that was required as a condition of the planning permission. The Council accepted that, as the tree is in a conservation area, the street scene team should have notified the forestry and landscape officer of the proposed work. But it was satisfied that, had this been done, permission would not have been refused. Accordingly, there were no grounds to take enforcement action.
28. Having investigated the issues raised, the Council was satisfied that, although there were technical breaches of planning permission, none of those breaches warranted enforcement action.
29. Whether something is a breach of planning control is a matter of fact and degree and is a matter for the professional judgement of officers depending on the merits of the case. Likewise, it is a matter for officers’ professional judgement whether enforcement action is appropriate. I am satisfied the Council investigated Mr B’s concerns properly. In the absence of administrative fault, there are no grounds to criticise officers’ judgement that the breaches of planning control did not justify enforcement action.

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Final decision

30. I do not uphold Mr B’s complaints.
31. I have completed my investigation on the basis I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman