Summary: Mr X complains the Council was at fault in the way it responded to his complaints about a breach of planning control for a landscaping scheme at a nearby development. The Ombudsman has found no evidence of fault in the way the Council considered these matters.

The complaint

1. The complainant whom I shall refer to as Mr X complains the Council failed to ensure a nearby development complied with the landscaping conditions approved as part of the planning permission. Mr X says this has had a detrimental impact onto his amenities and business.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mr X and the Council and considered the comments received.

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What I found

Government guidance on enforcement action

5. Government guidance explains Councils have a range of ways of tackling alleged breaches of planning control and they should act in a proportionate way. It says Councils have discretion to take enforcement action when they regard it as expedient to do so having regard to the development plan and any other material considerations. Councils should have an enforcement plan showing how it will manage enforcement action.

The Council’s enforcement policy

6. The Council’s enforcement policy is based on five principles. These are transparency, accountability, proportionality, consistency and targeted only at cases where there is a need for action. Under proportionality the policy says any action taken will be proportionate to the breach or wrongdoing. The Council will look at factors including the seriousness of the offence, risk to health, safety, environment and need to protect the public and the public purse when considering what action to take.

Key events leading to the complaint

7. Mr X is one of the owners of a listed building from which he runs a business. The Council received a planning application to develop housing on land next to Mr X’s property. The application was to approve all matters apart from landscaping the site.
8. The Council’s Development Control Committee visited the site and considered the application. The planning report noted the impact of the proposed development onto Mr X’s property but considered it ‘less than substantial’ making the development acceptable. The planning report included an indicative landscaping plan showing an earth bund with a hedge planted on it on the boundary of the application site with Mr X’s property. The Council approved the application subject to the developer putting in a reserved matters application before any development started on site for some issues including landscaping.
9. The Council received a reserved matter application for landscaping proposals following discussions between officers and the developer to improve the scheme. The revised scheme omitting the earth bund and proposed keeping the existing hedge and trees on the site. The developer intended to add a new mixed hedgerow of different hedge types between 1.5 to 3 metres high with trees planted between 6.5 to 7 metres high. The officers’ report considered the proposed planting appropriate and enough to mitigate the impact of the development on the landscape and setting Mr X’s property. The developer submitted a Construction Management Plan setting out the planned development of the site including hours of operation.
10. The Development Control Committee considered and approved the application subject to planning conditions. One condition needed the developer to carry out the planting and fencing before starting work on the site. Another condition needed the developer to replace any trees or shrubs that died.

Monitoring of site and Enforcement action

11. Mr X complained the developer did not carry out the required tree planting and landscaping before starting work on site. Mr X said the landscaping application was to ensure a green buffer between the development and his property and business to protect it.
12. The Council opened an enforcement case about the site after receiving Mr X’s complaints. The Council also received complaints the landscaping did not comply with the condition and the developer was working outside the operating hours for the site. The developer told Enforcement officers a rogue delivery had arrive on site before works were due to start for the day and only on-site preparations were underway. This included bring machinery onto the site and moving topsoil around. Officer documents noted it was site clearing and not actual works. An officer confirmed there were no conditions imposed on the site for working hours. But the Construction Management Plan listed the proposed working hours. Council notes show officers told the developer about breaching operating hours and this ceased.
13. The developer confirmed the instant hedging and screening was due to arrive to comply with the landscape condition. The Council’s Landscape Officer as tree expert visited the site in June 2018 which showed 90% of the tree screening had been planted. The developer explained they had not ordered enough trees and were sorting out the shortfall.
14. The Council says developers normally carry out planting in the dormant growing period for trees and hedges during October to March. But the developer wanted to start building works which meant planting trees in summer to comply with the planning conditions. The developer discussed with the Landscape officer the appropriate trees to plant on the site. The Council confirms the instant hedge was planted in early summer 2018 along with several trees.
15. The Council received complaints in July 2018 including one from Mr X’s business partner, the newly planted trees were not at the agreed height. The Landscape officer visited the site and considered the trees were an appropriate size and height for the development. But found the developer had not planted the last section on the boundary with Mr X’s property. The developer explained it was because the suppliers of the mature trees refused to release them due to the unusually hot and dry weather and difficulties in keeping the trees watered. The officer agreed it was a valid reason, so asked the developer to erect full height green screening in the missing section on the boundary with Mr X’s property. The Council confirmed the works taking place were on other site of the site away from the unscreened section of the site and Mr X’s property.
16. The Council confirmed the developer quickly complied with the request to provide green screening.
17. The Council says although the works had now started on the site a significant amount of the required landscaping was completed. And so, it needed to decide whether it was expedient to take any stronger enforcement action. The Enforcement officer decided on advice from the Landscape officer there was no need to pursue any more enforcement action during the hot weather. The Council considers its decision not to take any more action was proportionate to the breach of planning control that occurred.
18. The developer completed the outstanding planting. The Landscape officer visited the site in early August 2018 and found some trees had failed due to the harsh conditions and exceptionally dry weather of summer 2018. The officer visited in September 2018 to assess the planting and ensure it complied with the planning condition. The officer found the developer had planted the replacement trees and the hedge had grown due to being watered in the dry weather. The officer said the trees were between 5 and 8 metres high.
19. The officer noted the developer had pruned some trees but considered the trees and hedge would grow well. The officer considered there was enough planting to meet the planning conditions, even with the weather conditions and replacements needed, and so discharged the condition.
20. Due to further complaints about the height of the trees the Landscape officer visited the site again and measured the trees using specialist equipment. This confirmed the trees planted ranged from 5 metres and 8 metres with an average of 6 metres. The officer noted any trees under 6 metres had been planted where larger existing trees were already present in Mr X’s property. The officer considered this minimised the impact onto Mr X’s amenity. The hedge had also grown to a height of 1.5 to 2.5 metres. The officer considered where there had been a breach the impacts were offset and so could not justify any enforcement action.
21. The Landscape officer considered the extensive planting effectively met the condition to mitigate the impact on amenity. The officer also considered the developer had taken suitable action to ensure the vitality and vigour of the trees during the exceptionally hot weather.
22. The Council agreed officers should visit the site in March 2019. The landscape officer found one tree showing signs of stress so visited again in June 2019. The officer reported the trees were in full leaf, but one tree had failed with another showing signs of stress. The developer agreed to replant in the next growing season. The Council accepts this planting still needs to go ahead and officers will monitor it.

The Council’s comments on the landscaping scheme

23. The Council says the few planting failures have been compensated by the vigour and extent of the other landscaping in place. This was due to the trees exceeding the 6-metre requirement, the hedgerow planting, existing landscaping and general growth of the planting. The Council considers that despite the few failings the landscaping condition has been complied with.
24. The Council is satisfied officers have taken great care to ensure appropriate planting was designed to mitigate the impact of the development onto Mr X’s property. It says officers have carried out many site visits and contact with the developer to ensure they provided suitable forms of mitigation. The Council says officers have made sure the developer discharged the conditions appropriately. It says the requirement of the planning application was to provide ‘an effective’ planting scheme along the boundary of the site with Mr X’s property. The Council considers this has been complied with in the view of its tree expert.
25. The Council confirms officers will carry out a final visit in the next planting season to ensure planting has been established and maintained including the two trees that failed.

My assessment

26. The Council’s documents show officers responded to Mr X’s complaints about landscaping at the site. They regularly updated Mr X, advised him of the situation and responded in detail to his complaints.
27. Mr X disagrees with the Council’s decision not to take formal enforcement action against the developer but the decision whether to enforce or not is a matter of the officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
28. This is because officers visited the site to check on the alleged breach of planning control. They assessed whether works had started on site before completion of the landscaping. The officers assessed the planting in place and ensured the developer erected green screening to Mr X’s property when there was a delay in completing the planting. Officers did not consider it necessary to take more formal action. This is according to the Council’s enforcement policy under proportionality as officers were satisfied the planting carried out complied with the requirements of the planning condition to provide an effective screen. So, officers discharged the condition. This is a decision the officers are entitled to reach. There is no evidence of fault in the way the Council reached this decision from the documents I have seen so far.
29. The Council is to continue to monitor the site in the next growing season to ensure compliance once the replacement trees have been planted.
30. The Council cannot provide contemporaneous officer site visit notes and taken documents to show the events match officer recollections of what happened. The Council’s Enforcement file has also not been available due to being with Council’s scanning contractor. However, I am satisfied from seeing the documents provided by the Council so far do support the Council’s information about actions taken.
31. The Council plans to ensure planning and enforcement teams have contemporaneous site note making and recording. I consider this suitable action for the Council to take.

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Final decision

32. I am completing my investigation. I have found no fault by the Council in the way it has responded to Mr X’s complaints about a breach of planning control at a nearby development.

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Investigator's decision on behalf of the Ombudsman