Summary: We will not investigate this complaint alleging the Council failed to protect trees on the complainant’s property. There is insufficient injustice to warrant our involvement and is unlikely we can add to the Council’s investigation. Nor is further investigation likely to lead to a different outcome.

The complaint

1. The complainant who I shall call Mr X, complains Council failed to enforce a condition to protect trees on his land from the actions of a developer working on a site next to his property.
2. He wants the Council to confirm:
• what it is going to do to compensate for the possible loss of his trees
• how is it going to monitor the health of his trees; and
• how is it going to ensure occupants of the new house do not cause further damage?

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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’. 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:

• the injustice is not significant enough to justify our involvement
• it is unlikely we could add to any previous investigation by the Council
• we cannot achieve the outcome someone wants

(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
• the Council’s responses to his complaints
• information about the planning applications on the Council’s website

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What I found

5. In 2017, the Planning Inspectorate granted outline planning permission for 10 new houses on a site next to Mr X’s property, reserving details of design and the layout of the site for a later application.
6. In September 2019, the Council approved a reserved matters application. It did not receive any comments about the trees on Mr X’s land bordering to a proposed plot. The Council granted planning permission. It did not place any conditions on the permission to protect trees.
7. In February 2020, the Council received another reserved matters application for the design and layout of the site, to replace that previously granted permission in 2019. The Planning Officer notes the layout in the new application broadly followed that previously approved in 2019.
8. The Planning Officer’s report on the scheme includes the Council’s Landscape Officer comments. It notes the proposed development will impact on existing trees and vegetation to the perimeter of the site. The Landscape Officer stated that if the application progressed then more information be provided to justify the impact on the landscape setting, character, soils, and trees.
9. The Planning Officer’s report on the scheme notes the site already benefits from planning permission for both outline and reserved matters. Having considered the proposal and comments received and the relevant planning policies, the Planning Officer recommended approval.
10. The Council agreed with the recommendation and granted planning permission under its scheme of delegation. The planning permission includes a condition which states:

“Development hall be carried out in accordance with BS5837:2012 Tress in relation to design, demolition and construction. “

11. The Council says it included this general condition to protect existing trees and hedgerows and to comply with the Council’s Core Strategy policies.
12. The developer started work on the site. Mr X reported to the Council the foundations for one of the plots intrudes into the root area of two trees on his property. And the developer had cut back the branches to the boundary line.
13. The Council’s tree officer visited the site. His opinion is that work should be carried out in accordance with BS58/37. This requires a report. But such a report should have been required at outline stage. The outline planning permission was granted by the Planning Inspectorate which did not place any conditions on the permission requiring tree reports.
14. The Tree Officer notes the nearest property is built about 4 metres from two almost mature trees on Mr X’s land. He says the root protection radius for these trees is likely to be 5 metres. However, he also says:

“The incursion into the rooting areas is unlikely to start the decline of the trees or affect their stability but it will shock them and there might be some signs of physiological stress in the next year or two. However, this type of tree is resilient and only a small portion of the whole rooting area has been impacted. Also, these aren’t old trees so should be able to withstand the limited damage.”

Assessment

15. Mr X wants the Council to compensate him for the possible loss of his trees. He also wants to know how it is going to monitor the health of the trees and how it is going to ensure subsequent occupants of the new house do not cause further damage.
16. The Council is not responsible for monitoring the health of Mr X’s trees, nor it is responsible for ensuring occupants of the new property do not damage his trees. Planning permission does not give the recipient the right to damage another person’s property or land. Should this occur it would be a civil matter between Mr X and either the developer or the occupants of the new house. Cutting back overhanging branches to the boundary is not an offence.
17. Also, the Tree Officer has confirmed the incursion of the foundations into the rooting area of the trees is unlikely to start the decline of the trees, nor to affect the stability. Considering this professional opinion, I do not consider that Mr X has suffered significant personal injustice which warrants our involvement.

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Final decision

18. I will not investigate this complaint. This is because the Tree Officer has advised Mr X’s trees are unlikely to become unstable or to decline in health. Therefore, the injustice claimed by Mr X is not significant enough to justify our involvement. Nor are we likely to add to the investigation already completed by the Council. And further investigations unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman