Summary: Mr X complains the Council is failing to enforce planning conditions which protect trees on a site opposite his home. The Ombudsman will not investigate this complaint. We have not seen evidence of fault in the Council’s actions and further investigation is unlikely to lead to a different outcome.

The complaint

1. Mr X complains the Council is failing in its statutory duty to enforce planning conditions defending protected trees on a development site opposite his home.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council. Mr X commented on the draft version of this decision.

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What I found

5. The Council granted planning permission to develop a plot opposite Mr X’s home. The plot contains about 40 trees which have Tree Preservation Orders. The planning permission includes conditions to protect the trees.
6. In March Mr X reported to the Council the developer had breached the conditions protecting the trees. The Council says an officer visited the site the following day. He did not establish there was a breach of planning control.
7. Work recommenced at the site in June following the lockdown during the Coronavirus outbreak. Mr X reported a further breach of planning control. The Council says an officer visited the site the following day. He noted there is a breach of planning control regarding the protection for the trees.
8. The Council wrote to Mr X confirming a minor planning breach exists and the developer has been advised to stop work around the area until a tree specialist has inspected the site. The Council also reminded the developer of the consequences of damaging a protected tree and asked for a response.
9. In July, the developer put in a retrospective planning application to amend the conditions on the planning application about tree protection.

Assessment

Legal and administrative background

10. A breach of planning control is defined as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject to which planning permission has been granted. (Section 171A of the Town and Country Planning Act 1990)
11. Councils are under a duty to investigate complaints about alleged breaches of planning control. If a breach of planning control is found, a council has power to act, but no duty to do so. The duty is to consider whether it is expedient in the interests of public amenity to take enforcement action.
12. The National Planning Policy Framework says:

‘’Effective enforcement is important to maintain public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

13. Councils often first try to deal with breaches informally, through negotiation with the developer/landowner. Negotiations may take time and can result in a developer/owner making a planning application for the unauthorised development that has taken place. This allows the Council to give local people an opportunity to comment on that development and then assess it against planning policies. Normally, development meeting planning policies will get planning permission, unless other relevant planning reasons justify refusal.
14. I understand Mr X disagrees with the way the Council has dealt with his reports of breaches of planning conditions. He is particularly concerned the officers have not measured the actual distances applied for the root protection measures. But I see no evidence of administrative fault. The Council has performed its statutory duty by investigating the reports. It reminded the developer of its responsibilities. The developer has now put in a retrospective application to change the planning conditions for tree protection. Mr X has been informed of the application and may comment if he wishes to.
15. Mr X also complains the Council has made reporting breaches of planning control neither easy nor transparent. He says it has no procedures in place that he could find to help with reporting contraventions within the public domain.
16. I have looked at the Council’s website which has a section on planning enforcement. It contains an online form for people to use to report their concerns. I do not agree with Mr X that the Council is making it difficult to report such matters.

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Final decision

17. I will not investigate this complaint. I have seen no evidence of fault the way the Council considered Mr X’s reports of breaches of planning control. .And further investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman