Summary: Mrs X complained about the Council’s decision that affected a protected tree. The planning decision was made several years ago, before our 12-month time limit and we found no good reasons to investigate it now.

The complaint

1. Mrs X complained about the Council’s failure to protect a tree that is on the boundary between her home and a new development. Mrs X said that the Council failed to:
• properly consider the original planning application, which was approved several years ago; and
• take enforcement action when the developer dug within the tree’s root protection area.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I read the complaint and discussed it with Mrs 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.
5. I gave Mrs X and the Council an opportunity to comment on an earlier draft of this decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.
8. 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.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. 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 likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• Cutting down;
• Topping;
• Lopping;
• Uprooting; and
• Wilful damage and destruction.
12. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days to for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

What happened

13. Several years ago, a developer applied for permission to build on land behind Mrs X’s home. The Council approved the application subject to planning conditions, some of which sought to protect trees and require landscaping plans for new planting.
14. There is a tree on the boundary between Mrs X and the site which is subject to a TPO.
15. Mrs X said she objected to the application at the time because she thought the development was too close to the protected tree. Mrs X said her fears proved correct, as later the developer dug within the root protection area.
16. Mrs X complained to the Council and a planning officer and tree protection officer visited the site. The Council decided not to take enforcement action because it considered the encroachment was marginal and the tree had not been harmed. Mrs X said some soil around the tree was removed but there are no obvious signs that it was harmed. However, she fears that what has happened may lead to damage to the tree in the future
17. Mrs X said that she did not complain about the Council’s decision when it was made because it was not until the developer dug within the root protection area that she knew there was a problem.
18. I discussed the planning and planning enforcement decision-making process with Mrs X and though she accepts the Council may well have followed the right process, she believes it has acted poorly, failing to protect the tree and the interests of existing residents. Mrs X believes the Council should have ensured that the application and construction work complied with British Standards 5837 (Trees in relation to Design, Demolition and Construction).

My findings

19. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
20. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
21. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
22. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
23. The Ombudsman’s powers are also subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or when the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
24. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision, and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
25. Mrs X’s complaint about the original planning application is late and she has not provided any good reason why I should use my discretion to investigate it now. This is because:
• Mrs X knew about the development and the tree at the time the application was decided, and she could have come to us sooner. The Council has a time-limited opportunity to consider the application and the time for her to comment has passed.
• Mrs X main concern was an absence of a reference or adherence to the relevant British Standard. While the requirements of British Standards can be planning considerations, it is up to the Council to decide what the main planning issues are and what weight to give to each in the decision-making balance. We are not a planning appeal body and so are unlikely to be able to say how the Council should have used its discretion or exercised its judgement.
• Despite Mrs X’s concerns about what happened before the original application was approved, the Council did maintain planning control because it had conditions it could enforce and a TPO in place to protect the tree. Mrs X is not happy with the enforcement decisions the Council has made, but unless there is evidence to show there was some fault in the decision-making process, we cannot criticise the judgements of the Council and its officers. The Council considered Mrs X’s allegation, visited the site and made a decision it was not necessary to take enforcement action. This is the enforcement decision making process we would expect.
• Even if there was evidence of fault we could investigate, we would need to show it caused some injustice we can remedy. We cannot remedy a speculative injustice.

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Final decision

26. I ended my investigation because this is a late complaint and I have seen no good reason to investigate it now.

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Investigator's decision on behalf of the Ombudsman