Summary: We have discontinued our investigation of this complaint, about the fact the Council has not designated an area as a nature reserve, and has not taken enforcement action against a developer for an alleged breach of planning permission. This is because we could not add to the Council’s responses to these complaints, and because there is no significant injustice to the complainant we could seek to remedy.

The complaint

1. I will refer to the complainant as Mr N.
2. Mr N complains the Council:

• has not designated an area as a local nature reserve, despite this having been a condition it attached to planning permission for a development several years ago;
• has failed to take enforcement action against a (different) developer for removing a hedgerow, which Mr N says it did not have permission to do.

3. Mr N would like the Council to now designate the nature reserve, and to require the other developer to reinstate the hedgerow.

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The Ombudsman’s role and powers

4. We investigate 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’.
5. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any fault has not caused injustice to the person who complained, we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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

7. I reviewed Mr N’s correspondence with the Council, and documents available on the Council’s online planning portal in relation to both sites.

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Analysis

8. Mr N’s complaint concerns two separate issues, relating to planning decisions the Council has made. However, I do not consider either point bears further investigation by the Ombudsman at this time.
9. First, with regard to the nature reserve, the Council has said that it began the process to designate the site in question before the COVID-19 pandemic, but the work then came to a halt. It said that, as a result of Mr N’s complaint, it would now recommence the process.
10. However, the Council explained there was no legal requirement for it to designate the site as a nature reserve. Rather, this was simply a recommendation arising from a report, which the developer had commissioned to meet a condition the Council had imposed on the planning permission. The Council also explained the designation process was complicated because it involved other local authorities.
11. It is unfortunate – albeit understandable – that work to designate the nature reserve was interrupted by the pandemic. It might be reasonable to expect the Council to have recommenced the project sooner than it did; but as it is under no legal obligation to designate the area as a nature reserve anyway, this does not mean I can find it was at fault for not doing so.
12. Either way, given the Council has now started the process again, I do not consider anything worthwhile could come from further investigation by the Ombudsman. As the Council is not legally required to designate the area this is not something we could have recommended anyway. And, while I appreciate his interest in the matter, even if there is fault by the Council here, there is no significant personal injustice to Mr N from this. As I have noted in paragraph 4, under these circumstances we will normally discontinue our investigation of a complaint.
13. Second, with regard to the hedgerow, the Council says the Hedgerow Regulations allow for the removal of hedgerows where necessary “for carrying out development for which planning permission has been granted”, an exemption which it considers applies here. It has also noted the development plans show a replacement hedgerow will be planted, albeit in a slightly different location.
14. Although I am conscious Mr N has been in contact with the Council’s planning enforcement team more recently about this, he has confirmed the developer removed the hedgerow in 2018. The law says a person should approach the Ombudsman within 12 months of becoming aware of the substantive issue they wish to complain about, and I cannot overlook the delay which has occurred here.
15. Even putting this to one side, however, I am not persuaded there is evidence of fault here. The Council is clear the developer was permitted to remove the hedgerow, and this being so, there is no enforcement issue for it to pursue. I acknowledge Mr N disputes this, but the planning process for this development has been extremely complicated and drawn out, and on a simple reading of the evidence available on the planning portal, I cannot draw my own conclusion about this.
16. In addition, I am again not persuaded there could be any significant injustice to Mr N from this matter, even if there were fault by the Council. I acknowledge, again, that Mr N has a personal interest in the area, and while I do not dismiss this, I do not consider his general concern about the removal of the hedgerow means he has suffered an injustice which we could seek to remedy. Given the Council has said the developer’s plans show an intention to replace the hedgerow, there is again little we could achieve by further investigation of this matter.

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Final decision

17. I have discontinued my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman