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Lichfield District Council (20 011 249)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 18 Jun 2021

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s failure to impose a planning condition on a planning permission for development on land next to his home. Mr X said that because of this failure, trees and a hedge that protect his outlook are no longer protected. There was fault in the way the Council made its decision causing injustice to Mr X and others, which it has agreed to remedy.

The complaint

  1. Mr X complained on behalf of himself and other residents. He complained the Council failed to impose a condition to retain trees and a boundary hedge when it granted planning permission for development on land next to his home.
  2. Mr X said that the Councill failed to protect the amenities of nearby residents, as development work is likely to involve removing or damaging some of the trees or parts of the hedge.

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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’. 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)
  2. 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

  1. I read the complaint and discussed it with Mr 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.
  2. I gave Mr X and the Council an opportunity to comment on my draft decision and took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

  1. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
  2. Planning considerations include things like:
    • access to the highway;
    • protection of ecological and heritage assets; and
    • the impact on neighbouring amenity.
  3. Planning considerations do not include things like:
    • views from a property;
    • the impact of development on property value; and
    • private rights and interests in land.
  4. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
  5. We accept that delegated reports might be written differently, as their target audience is a professional planner, not a member of the planning committee. However, delegated reports still need to demonstrate the core issues have been considered and set out the reasons for judgements on planning matters, albeit briefly stated.
  6. The purpose of the report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.

What happened

  1. Mr X represents himself and others who share a boundary with a development site. The owner of the site submitted a planning application to build an outbuilding near the boundary.
  2. Mr X and other residents objected to the application because they were concerned that the boundary hedge and trees on the land would be damaged by construction work. They pointed out that the land was subject to a condition which protected the boundary hedge and trees on the site and they wanted that protection to continue.
  3. The application was considered by a planning case officer. The case officer wrote a report which included:
    • a description of the proposal and site;
    • a summary of relevant planning history;
    • comments from neighbours and other consultees;
    • relevant planning policy and guidance;
    • an appraisal of the main planning considerations, including impact on amenity of neighbours and the impact on trees and vegetation; and
    • the officer’s recommendation to approve the application, subject to planning conditions. One of the recommended conditions was to retain trees and vegetation on the site. The report explained that the purpose of this condition was to protect the outlook from neighbouring properties.
  4. The application was approved by another officer using delegated powers, but the decision notice did not include a condition to retain trees and vegetation.
  5. Mr X complained to the Council about its decision. In its response to his complaint, the Council apologised and accepted that it had intended to impose a condition to retain existing trees and vegetation but did not do so.
  6. Mr X is concerned that the boundary hedge and trees on the site will be damaged by construction works, as the outbuilding is planned to sit very close to the boundary.

My findings

  1. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for fault in the decision making process, and when we find it, we decide whether it caused an injustice to the complainant.
  2. There was fault in the way the Council dealt with the application. It intended to impose a condition to retain trees and vegetation on the site but did not do so.
  3. Because of this fault the trees and boundary hedge which protect the outlook of neighbours are no longer protected if the permission is implemented and building work begins.
  4. The Council should take action to remedy any injustice caused by the fault I have found.

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Agreed action

  1. To remedy the injustice I have found, the Council has agreed to attempt to negotiate a solution with the current landowner which would allow it to regain planning control to protect the hedge and trees on the site.
  2. If the landowner intends to carry out the development, the Council will offer to pay the landowner’s reasonable costs caused by varying the planning permission.
  3. The Council will write to the Ombudsman and Mr X after three months from the date of our final decision to explain the outcome of its negotiations.

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Final decision

  1. There was fault in the way the Council made its planning decision causing injustice, as it did not impose a planning condition to protect a hedge, as it had intended. I completed my investigation as the Council accepted my findings and recommendations.

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Investigator's decision on behalf of the Ombudsman

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