Summary: Mr C complains the Council failed to control and manage development near to his home, allowing a woodland area to be adversely affected. The Ombudsman finds that except for a minor administrative error which did not lead to injustice, the Council acted without fault.

The complaint

1. The complainant, whom I shall call Mr C, complains the Council failed to control and manage development near to his home, allowing destruction and damaging impact on trees, wildlife and ecology of a woodland area.

Back to top

What I have investigated

2. I have investigated how the Council dealt with planning enforcement matters relating to the development.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)

Back to top

How I considered this complaint

6. I considered all the information put in by Mr C about his complaint. I made written enquiries of the Council and took account of the information it provided in reply. I provided Mr C and the Council with a draft of this decision and considered comments received in response.

Back to top

What I found

7. Mr C lives about three-quarters of a mile from a site for which the Council granted planning permission for residential development in 2001. He has concerns about loss of trees and plants from what was a wooded site. Conditions attached to the planning approval included a requirement for protective fencing around trees or groups of trees to be retained on the site until development was completed. This was to ensure that the trees were not adversely affected during the construction period.

Legal and administrative information

8. An area Tree Preservation Order (TPO) applied to relevant trees within the development site. A TPO is an order made by the Council to protect specific trees, groups of trees or woodlands in the interests of amenity. It prohibits wilful damage or destruction of the trees or works to those trees without the Council’s written permission.
9. The Government’s National Planning Policy Framework says of enforcement: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control. Local planning authorities should consider publishing a local enforcement plan to manage enforcement proactively, in a way that is appropriate to their area. This should set out how they will monitor the implementation of planning permissions, investigate alleged cases of unauthorised development and take action where it is appropriate to do so.”
10. The Council has a planning enforcement policy (which dates from 2015) and a charter which sets out such matters as the response times for planning enforcement complaints. The enforcement policy, currently under review, explains that due to the number of reports of alleged breaches of planning control it receives each year, and the often complex and lengthy nature of planning investigations, it prioritises cases according to the level of harm being caused. Unauthorized works to protected trees are in the category which is afforded the greatest priority.
11. Where there is a breach of planning control, the Council must decide if the breach unacceptably affects the amenity of the area and if so what action is proportionate, in the circumstances of the breach. If enforcement action is deemed necessary, it should be taken quickly. There are a range of enforcement options available to the Council. These may include the service of formal enforcement notices or a stop notice, but also include less formal communication and negotiation with a developer to ensure that matters are resolved to the satisfaction of the planning authority.
12. When a priority one complaint is received, the Council’s policy says that it will be acknowledged within ten days and the name of the relevant enforcement officer will be provided. That officer will then check the Council’s records, inspect the site and interview witnesses in order to establish whether a breach of planning control has occurred. The policy says the Council aims to complete this part of the investigation within two working days for priority one complaints. What happens next in terms of enforcement action will vary dependent on the circumstances of the case, but the policy says that the enforcement officer will advise the complainant of any significant progress made as and when this occurs.
13. The Council’s enforcement charter sets out the Council’s process in the following terms:

• It aims to register a valid planning enforcement complaint within five working days. Once registered an acknowledgement letter will be sent to the complainant detailing the contact details of the officer dealing with the investigation;
• It aims to conduct a site visit within 48 hours for priority 1 cases;
• Where no breach has been observed, it will close the case and write to the complainant as soon as possible;
• Where a breach has occurred and further investigations or actions are required it will update the complainant within eight weeks of the complaint and at regular three-month intervals until the breach is resolved.
  

What happened in this case – the enforcement complaint

14. Mr C was in contact with the Council expressing concerns about the development possibly as early as December 2015, and certainly by July 2016 as he received an email from a planning officer in mid-July which referred to issues about the treatment of retained trees and potential breaches of planning controls which the enforcement team was dealing with. The Council provided the name of the enforcement officer who was dealing with the matter at this time, and on 28 August 2016 Mr C corresponded with the planning enforcement department, asking for information about the demolition of a former cricket pavilion and a copy of the environmental statement for the development: he referred to ‘destruction of the woodland’.
15. He received no response, and so on 16 October 2016 he sent a further email chasing this. He said he had video evidence of the damage to the woodland, which he offered to the Council.
16. The Council’s enforcement team leader replied on 19 October, advising that the enforcement team was looking into the concerns regarding the trees and what protection or remedial measures were appropriate. The officer said these issues had been taken up with the developer directly, following consultation with the Council’s tree officer, with a view to finding an appropriate way forward.
17. Between Mr C’s emails of July and October 2016, the Council’s tree officer had raised an internal complaint with the enforcement team, alleging a failure to implement the approved tree protection scheme in accordance with the conditional planning permission, leading to damage to the trees which had been retained on the development site.

Enforcement action – what happened next

18. Between October and December 2016, Mr C exchanged several emails with the Council. Mr C provided the Council with some evidence he had gathered and reported ongoing concerns about the trees. The Council confirmed it was in contact with those acting on behalf of the developer in respect of the issues regarding the trees, and told Mr C shortly after this that the arboricultural method statement was being assessed by the tree officer and once information had been received from that officer a more comprehensive update would be provided.
19. The Council says initial investigations had confirmed that the tree protection fencing had either not been implemented or had been implemented incorrectly in some areas. This had resulted in apparent soil compaction around the root protection areas, and damage to actual roots of some trees. It decided that remedial actions involving the re-location of the tree protection fences in some areas and de-compaction and aeration of the soil in the root zone of trees (known as terraventing) would be sufficient for the recovery and long-term survival of the affected trees.
20. In mid-December the Council told the developer that the remedial works should be completed within a calendar month; that the works were to be supervised and monitored by a qualified arboricultural consultant and confirmation of their satisfaction was to be forwarded in writing to the Council; and once works were completed contact was to be made with the enforcement team leader to arrange inspection.
21. Having heard nothing further from the Council after its email in November promising a later update and so on 12 February 2017 Mr C requested an update. The Council issued a holding response on 14 February.
22. On 4 April the tree officer made a site visit. He identified some further work that needed to be done, moving piles of spoil and soil in the northern part of the TPO, and raking a bank to a stable and natural form and pruning exposed roots. He observed that there was a large area of spoil in the root protection area of the protected trees which could have a long-term impact on the viability of these trees; he noted that materials were being stored in or on the tree protection fencing or where fencing had been moved and this needed addressing to prevent damage to retained trees; and he noted that proposed de-compaction and aeration of the soil in the root zone of trees (known as terraventing) in relevant areas had not yet been done. The enforcement team leader sent the tree officer’s findings to the developer on 19 April 2017 and asked them to confirm their intentions in this matter by 28 April. The developer replied on 24 April confirming works had with done, except for the terraventing which was planned for the end of the week.
23. Following the holding response in mid-February 2017, Mr C had not heard from the Council and on 7 May 2017 he sent the Council more photographs of the woodland and areas of bluebells being affected by the development. The Council acknowledged this on 9 May and said matters raised would be discussed with the tree officer.
24. On 24 May 2017, the enforcement officer received an email from the arboricultural consultant who confirmed he had visited the site the previous week and found the immediate remedial works required to comply with all tree work and tree protection on the site were 95% complete. He said he had been informed the terraventing had been done also, although as this is a below ground operation there was no sign to verify this. He said there were a couple of minor points the developer had promised to rectify and then a final visit would be done to confirm all remedial works were complete. He recommended further site visits later in the year and the following year to confirm trees had recovered and were growing well.
25. On 3 July 2017, Mr C sent a further email to the Council seeking an update. It responded the next day saying the tree officer had been working with the developer for six months in respect of remedial actions required at the site, and that most of the remedial work had now been done and inspected. It said remaining areas of work were on-going and there would be further visits by the Council throughout the remainder of the year.

Analysis

26. The Council should have treated Mr C’s email of 28 August referring to the destruction of woodland as an enforcement complaint and responded accordingly, under the terms of its policy and charter. It did not do so, and that was fault. However, the failure to treat the email of 28 August 2016 as an enforcement complaint did not result in significant injustice. The internal enforcement complaint from the tree officer in September had initiated the process of investigation of tree issues by the enforcement team, and even if the Council had treated Mr C’s August email as an enforcement complaint it is likely on balance that the outcome in terms of the substantive issue of the potential damage to the trees, and how the Council dealt with that, would have been the same.

Mr C’s complaint to the Council

27. Mr C complained to the Council about what he perceived as its failure to control the development. The Council that responding to concerns the planning enforcement team had sought the services of the tree officer to assist in the investigation of the alleged damage to trees; site inspections were made and remedial action sought, with a view to remedying the works which had already occurred and preventing any further damage. It explained that while the enforcement team endeavours to be proactive in its approach to development, it is largely a reactive process and as such, appropriate action was taken as soon as practicable. Mr C asked about penalties or fines to be imposed on the developer for breaches of planning control: the Council explained that the planning process does not allow for this, although if formal enforcement action results in prosecution proceedings later ensue, fines can be imposed by the Courts. In this case however, the Council did not take formal enforcement action but sought to resolve matters informally.
28. The Council has wide discretion on whether to act once it has investigated an alleged breach of planning control. This ranges from no action, through negotiated solutions to formal notices and ultimately possible prosecution. The decision to seek to resolve matters in this case in the way it did without recourse to more formal action was one the Council was entitled to make and the Ombudsman cannot question the validity of such decision making in the absence of procedural fault.

Final decision

29. I have completed my investigation on the basis set out above.

Back to top

Parts of the complaint that I did not investigate

30. I did not investigate how the Council dealt with the planning application and reached its decision to grant planning permission for the development, including consideration given to ecology at that stage. The permission was granted in 2001 and a complaint about that might reasonably have been brought sooner.

Back to top

Investigator's decision on behalf of the Ombudsman