The Ombudsman's final decision:
Summary: Mr X complains about the Council’s decision to consider an application to amend planning permission to be a non-material amendment. There is no evidence of fault in how the Council made this decision.
- Mr X complains that the Council is at fault for considering an application to remove trees as a non material planning amendment and it did not give proper consideration to making a tree preservation order to protect the trees. Mr X considers the loss of the trees has affected his outlook and he is concerned about the impact on the environment.
The Ombudsman’s role and powers
- 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)
- 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.
(Local Government Act 1974, section 24A(6))
- 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)
How I considered this complaint
- I have:
- Considered the complaint and the information provided by Mr X;
- Discussed the issues with Mr X;
- Made enquiries of the Council and considered the information provided;
- Invited Mr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.
What I found
Non material amendment
- Where planning permission is granted it is sometimes necessary to make changes to the approved proposals. Where the modifications are fundamental or substantial a new planning application should be submitted. Section 96A of the Town and Country Planning Act 1990 provides that the local planning authority may make a change to any planning permission if it is satisfied the change is not material. This means if the proposed changes are minor and the nature of the application remains substantially the same then the planning authority can consider a non material amendment without the need to begin the planning process again.
- There is no statutory definition of ‘non material’ as it depends on the context of the overall scheme. The Council’s guidance to customers gives examples of material amendments which include if the amendment will result in greater visual intrusion to neighbours and if there were relevant objections which would be compromised by the proposed amendment.
Tree Preservation Orders
- A planning authority can make and confirm a tree preservation order (TPO) if it appears expedient in the interests of amenity to do so. A TPO is an order to protect specific trees and prohibits works to the trees without the planning authority’s consent. Before making a TPO the planning authority should assess the amenity value of the tree. Government Guidance sets out the criteria to be taken into account when assessing the amenity value of the trees and whether it is expedient to protect the trees.
- Government guidance also provides that the planning authority’s consent is not required for carrying out work to a tree protected by a TPO if the work is necessary to implement planning permission.
- Some years ago a developer obtained planning permission for a development which included a new bridge and associated landscaping works on land near to Mr X’s property. In 2021 the developer submitted an application for a non material amendment to amend the landscaping scheme to accommodate the installation of the bridge. This included the removal of a number of trees which would have previously been retained.
- The Council set out its assessment of the application in a report. It noted that the amendment was relatively small when considering the scale of the approved landscaping scheme and considered to be minor.
- The report noted concerns had been raised about the loss of the trees. Officer A, landscape officer evaluated the trees and scored them for public amenity, public visibility and merit. She then considered the expediency of making a TPO for the trees. The report set out officer A’s evaluation of the trees and her reasons why it was not expedient to make a TPO. Officer A found most of the trees had low amenity value so it would not be expedient to make a TPO. She found one tree to have high amenity value but it was not expedient to make a TPO as it would frustrate the planning permission for the bridge which was granted several years ago. She noted even if the tree had been covered by an adjacent TPO the original planning permission would void the TPO. The Council considered the application to be a non material amendment and granted the application.
- Mr X made a complaint to the Council about its decision to allow the developer to submit a non material amendment to remove the trees. He considered the Council was not following the proper process when the trees were protected under the original planning permission. Mr X also raised concerns that the Council would not grant a TPO despite a tree meriting one as it would be overridden by the original planning permission. The Council did not uphold Mr X’s complaint. Mr X remained of the view that the Council had not followed the proper process when considering the non material amendment.
- I asked the Council what consideration it had given to consulting residents on the non material amendment. The Council has said residents had raised their concerns with the Council and in the local press and it was in contact with residents and local councillors about the matter.
- The law provides that councils can consider applications to amend previously granted planning permissions. One such option is for a developer to submit an application for a non material amendment which the developer did in this case. So, the question for me is whether there is fault in how the Council considered the application.
- On balance, I consider there is no evidence of fault in how the Council considered if the application was a non material amendment. The Council’s report setting out its assessment of the application explains why it considers the amendments to be minor. The Council carried out an assessment of the trees and explained why they do not warrant a TPO so it considered the proposed amendments in removing the trees were non material.
- Mr X considers the Council’s reasons for not making a TPO are flawed as it considers making such an order would frustrate the planning permission for the bridge. Government guidance provides that trees subject to a TPO can be removed without the Council’s consent to implement a planning permission. The planning permission for the bridge was granted several years ago so the Council had to take account of this factor when deciding if it was expedient to make a TPO.
- Mr X considers the Council should have considered the increased visual intrusion on neighbours and residents’ objections to the proposed amendment. These are examples of material considerations set out in the Council’s guidance on non material amendments. The report does not address whether the any increased visual intrusion would amount to a significant change. But I do not intend to pursue the matter further as there is a significant distance between Mr X’s property and the development. So, it is unlikely the Council would have considered this to be a material amendment.
- The Council’s report noted concerns had been raised at the removal of the trees, and had assessed the trees when making its decision that the application was non material. So, I am satisfied the Council considered if there were any relevant objections.
- The Council did not have a statutory duty to consult on the non material amendment. However, councils have discretion to consult and we would expect a council to consider if should consult on a non material amendment depending on the circumstances of the case. We would also expect to see a contemporaneous record of the Council’s decision on whether to consult. The Council has not provided evidence to show it made a decision on the fairness of not consulting on the application. However, Mr X had raised his concerns about the removal of the trees before the Council considered the amendment. The report on the amendment also notes concerns had been raised about the trees and the Council considered those concerns when determining the non material amendment. So, I do not consider the Council’s decision not to formally consult was flawed as Mr X was able to comment on the proposal to remove the trees. But the Council should ensure it records its decisions on whether to consult on a non material amendment.
- I therefore find there is no evidence of fault in how the Council considered the non material application so I do not have ground to question its decision to approve it.
- There is no evidence of fault in how the Council made its decision to consider proposed amendments to a planning permission to be a non material amendment. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman