Summary: We will not investigate Mr X’s complaint about the Council’s decision not to enforce planning conditions or take other action he wanted to protect a tree on a development site. There is not enough evidence of fault in the Council’s decision-making process, nor sufficient significant personal injustice caused to Mr X by the matter complained of, to warrant us investigating.

The complaint

1. The Council granted conditional planning permission for a residential property on a vacant site. There are trees on the site, including a mature lime tree. Mr X complains the Council has:
1. failed to ensure the construction has proceeded in line with planning conditions in place to protect the lime tree;
2. not taken account of his explanations about the contractors’ actions and their impacts on the tree;
3. not taken action in response to the contractor’s planning condition breaches.
2. Mr X does not want to see the tree damaged or destroyed, to the detriment of the amenity of the surrounding residential area. He has been frustrated by the Council not taking the action he wants them to take to protect the tree. Mr X wants the Council to tell the contractors to stop the development until all measures for the tree’s protection as set out in the planning conditions are in place, including ground protection measures. He says this should be agreed by an independent arboricultural consultant, not the Council.

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The Ombudsman’s role and powers

3. 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’. We provide a free service but must use public money carefully. We do not start or continue 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

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

5. I considered information from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

6. Planning authorities may take enforcement action where they identify or receive a report they decide is a planning control breach. They are required to investigate claimed breaches, but enforcement is discretionary. It is for the authority to decide whether it is expedient to use its enforcement powers in each case. National government’s guidance on planning enforcement in the 2019 ‘National Planning Policy Framework’ says: ‘Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.’ So councils acting as planning authorities have different options to respond to planning control breaches, from taking no formal action to issuing an Enforcement Notice.
7. We are not an appeal body. We may only go behind a council decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. We cannot replace a council’s view with our or someone else’s opinion. So we consider the processes councils have followed when making their decisions.
8. In response to Mr X’s reports about the contractor’s actions and impacts on the tree, Council officers met at the site. The Council then wrote to Mr X giving its view that because of the changes in land levels on the site, the tree’s roots did not extend to the area where ground protection was required. The tree officer decided the tree’s roots would not be damaged by ground compaction caused during the development. A tree officer visited the site when Mr X reported that one of the tree’s roots had been severed and they noted the damage. The officer considered the damage would not affect the long-term health of the tree and so decided it did not warrant the Council taking enforcement action. Mr X also reported the contractor had not installed the protective fencing around the tree required by the planning conditions. Officers visited the site and found the fencing in the correct position so decided there was no planning breach on this issue.
9. During the Council’s investigation process responding to Mr X’s reports, officers visited the site and gathered relevant information about the tree and the development to inform their discretionary decision not to enforce. There is not enough evidence of fault in the Council’s decision-making process here to justify us investigating. We realise Mr X has relevant expertise on the issues he has raised and disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Even if there were fault in the Council’s process here which affected its decisions, we would not investigate. The home address Mr X has provided to us is over 50 miles from the development site. Even if we were to assume the tree does not survive the development works, given that distance, there is insufficient significant personal injustice to Mr X caused by the matter complained of to warrant us investigating. Mr X might be a regular visitor or have a family or other personal connection to the area near the development site. But the matter would not have any impact on the place he lives and most frequents, so would not cause sufficient significant personal injustice to him to justify us investigating.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant an investigation; and
• even if there has been such fault, the matters complained of do not cause Mr X sufficient significant personal injustice to justify us investigating.

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Investigator's decision on behalf of the Ombudsman