Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Mid Sussex District Council (20 007 192)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 22 Mar 2021

The Ombudsman's final decision:

Summary: Mrs X complains of fault in the Council’s handling of a planning application for removal of a protected tree. There is a lack of evidence that the Council took account of representations made by Mrs X on the application. However, the complaint was closed because the identified fault did not cause Mrs X significant injustice.

The complaint

  1. Mrs X alleges fault in the Council’s handling of a planning application for removal of a protected tree. Mrs X says:
    • Her household sent a letter objecting to the planning application by letter rather than through the Council’s website and so the Council did not tell her what to do if she wanted to be informed of a decision on the application.
    • The notification letter sent by the Council did not include any information on the criteria required for determination of a planning application by the planning committee and the Council only pointed to its constitution in response to their complaint. The Council will not accept that the advice/information it provided regarding this and the previous point was inadequate.
    • There is no evidence that their grounds of objection were taken into account.

Back to top

The Ombudsman’s role and powers

  1. 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:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

  1. 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)

Back to top

How I considered this complaint

  1. I considered the complaint and background information provided by Mrs X and the Council. I discussed matters with Mrs X by telephone. I sent a draft decision letter to Mrs X and the Council. I considered the Council’s comments in reply.

Back to top

What I found

  1. The Council received a planning application that proposed removal of a protected tree close to a public footpath. It publicised the application. Mrs X wrote to the Council to object to the proposal.
  2. The Council determined the application through delegated powers. This means a planning officer decided the application. The planning officer’s delegated report noted the evidence provided by the applicant to justify removal of the tree. The report noted the advice of the Council’s own tree officer on the proposal. the officer granted planning permission.
  3. The report did not refer to or assess any objections the Council received.
  4. Mrs X complained to the Council following its decision to grant planning permission. She said she had raised many objections to the application regarding visual impact; impact on the area; impact on wildlife; loss of privacy; damage to her home; works not needed; and land ownership. She said the Council did not address these issues before granting planning permission. Mrs X said she was not notified once the decision was made despite objecting to the application. Mrs X said the Council did not consider the long term stability issues that would be caused by the tree’s removal. She said the Council had failed to add a condition requiring the applicant to plant a new tree. She said the application should have been determined by the planning committee.
  5. The Council responded to Mrs X’s complaint. It said:
    • It received many responses to planning applications and does not automatically notify people of the outcomes. It said Mrs X could have registered an account on its website and she would then have received an update by email when the application was decided.
    • The case officer considered her objections. It accepted her concerns were not detailed in the delegated report. But it said the case officer referred to the issue of heave in the informative included with the decision notice. As this was mentioned in Mrs X’s objections the Council was satisfied the officer took account of what she said. It apologised and said it had spoken to the case officer to ensure representation letters are appropriately addressed in future reports.
    • The decision to decide the application through delegated powers was in line with its constitution.
    • It was not for it to have determined ownership of the tree through the planning application.
    • It was not appropriate to impose planning conditions in this case. The land was not owned by the applicant and the tree was being removed because of damage it was causing.
    • It accepted the tree had amenity value but there was sufficient evidence to show the tree was damaging the applicant’s property.
    • The potential for heave was not a reason to refuse permission and the Council would not be responsible for any future damage caused by removal of the tree.

Finding

  1. I do not find fault by the Council on the first and second grounds of Mrs X’s complaint concerning information the Council provides once it decides a planning application and the requirements for a referral to its planning committee. I do not find these are matters properly concerning administrative fault but rather they are service requests to be considered by the Council. They emerged in the course of a complaint and the Council duly responded to them as complaints.
  2. Mrs X makes the point that some people respond to notifications of planning applications by post rather than through the Council’s website and so should be similarly kept informed of the decision through the post. As information on how to be kept informed of the decision is available on the website it is not an unreasonable request that the Council makes the same information available to those who respond by post rather than use its website. That is a decision for the Council to make if Mrs X makes a service request.
  3. Similarly, information on the planning committee referral procedure is available on the Council’s website. Mrs X says she expected this to have been included in the guidance notes the Council sent with its notification letter because the guidance notes already include two sections of text about planning committees. Mrs X says she would have read the constitution had the Council included information in the guidance notes it sent by post. Again, it is for the Council to consider whether it should act on this service request.
  4. I find fault by the Council on the matter of its consideration of Mrs X’s objections. The Council is statutorily required to take account of material planning considerations raised in third party representations it receives. There was no reference at all to Mrs X’s representations in the planning officer’s report. I am satisfied the planning officer was aware of the objections and there is oblique reference to part of the objections when the officer included the issue of heave in the informative section of the decision notice. But the reference in the informative is not sufficient for me to now conclude the officer took proper account of Mrs X’s objections.
  5. Where we find by a local authority we must consider the injustice caused and, where possible, a remedy for the injustice.
  6. Mrs X says the removal of the tree has caused a serious loss of privacy and there is a risk of heave.
  7. Here, I do not find Mrs X suffered a level of injustice that warrants further pursuit of this complaint by, or a remedy from, the Ombudsman. The impact on Mrs X’s amenity is speculative whether in terms of privacy or the matter of heave. While there is a risk of heave it is not certain this will affect Mrs X’s property given the distance from the location of the tree to her home.
  8. I recognise the leaves of the tree could block direct views from the properties close to the tree into Mrs X’s home but it is uncertain this would have outweighed the damage caused to the applicant’s home.
  9. The Council confirmed the officer concerned has been reminded of a need for fuller reports to show the Council has addressed the concerns of neighbours.

Back to top

Final decision

  1. There was fault by the Council because it cannot show it took proper or full account of Mrs X’s representations. But this fault did not lead Mrs X to suffer significant injustice to warrant further pursuit of the complaint by the Ombudsman.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page