Summary: A local interest group complained the decision notice the Council issued on a hedgerow removal application did not reflect the decision that the planning committee took on the application. We upheld the complaint. The Council were at fault and the decision notice did not reflect the Committee’s decision. Part of the officer’s recommendation was not addressed by Committee and both the Committee and Officers failed to follow relevant guidance. The Council’s decision making was unclear as a result. However, we found, on balance, the outcome was unlikely to be different. We did not reach a view on other issues the group raised about the case officers report and actions as they did not lead to injustice. The Council agreed to review its practices as a result of the complaint.

The complaint

1. A local interest group complain that a decision notice the Council issued on a hedgerow removal application did not reflect the decision that the planning committee took on the application.
2. They also complained the case officer failed to consider the objections made about the application properly and the Council failed to consult relevant bodies on the application.

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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. 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

5. I spoke to a member of the group and considered the complaint the group made.
6. I obtained the case officer’s report, a copy of the group’s objection to the application and relevant plans from the Council’s online planning website.
7. I obtained a copy of the planning committee minutes and listened to an audio recording of the committee’s consideration of the application.

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What I found

Hedgerow Regulations

8. The Hedgerows Regulations 1997 were made under section 97 of the Environment Act 1995 and came into force on 1 June 1997. They protect important hedgerows in the countryside, by controlling their removal through a system of notification.
9. Before a landowner removes all or part of a hedgerow, the regulations require them to notify the Council. Councils have 42 days to give or refuse consent. They may take account of not only whether the hedgerow is important but also the reasons given for removing it.
10. In response to an application a council can issue a hedgerow retention notice stating the hedge is protected and must be kept. Alternatively, it can provide a notice giving permission for the hedgerow’s removal.
11. The regulations apply to hedges over a specified length and age, where it also satisfies at least one of a set of importance criteria.
12. Section Six of the regulations set out a number of exemptions to the regulations. If these apply, the removal of a hedge is already permitted without notifying the Council. One of these exemptions 6 (1)(a) allows a new opening to be created in substitution for an existing opening. This is on condition that the existing opening is filled with eight months of creating the new one.
13. Applicants who are refused consent have the right of appeal to the Secretary of State.

The Local Government Association and Planning Advisory Service guidance “Probity in Planning for councillors and officers”

14. Page 13 of “Probity in Planning” deals with Planning Committee decisions which differ from an officer recommendation. It states a committee’s decision reasons in these circumstances should be clear and convincing. I have summarised the steps the guidance recommends committees take before making a decision that differs from an officer recommendation:
• Members should discuss areas of difference with officers ahead of the meeting.
• They should record detailed reasons as part of the mover’s motion.
• Consider adjourning for a few minutes for the decision reasons to be discussed and agreed by the committee.
• Where there is any concern about the validity of their reasons, they should consider deferring to another meeting to allow any decision reasons to be tested and discussed.
15. Page 14 of the guidance states “Councillors should be prepared to explain in full their planning reasons for not agreeing with the officer’s recommendation. Pressure should never be put on officers to “go away and sort out the planning reasons”. It states “Officers should also be given an opportunity to explain the implications of the contrary decision, including an assessment of a likely appeal outcome…”

Background

16. In December 2018 the Council received an application from a landowner to remove a 15m stretch of two separate hedgerows (Hedges 1 and 2). The hedgerows run either side of a right of way.
17. The applicant sought to make a gap in the middle of the two hedges to create an access between two fields (Fields One and Two). The applicant stated the old entrance to Field Two was no longer available. This was because the southern end of Field Two had been sold, along with some agricultural buildings. The buildings were converted into residential use. This had been carried out under permitted development rights, subject to an application for prior approval.

The Case Officer’s view

18. The case officer’s report set out the proposal and the planning background. He noted an application to develop both fields for housing had been submitted in the past. The housing development required gaps in the hedges in the same positions the applicant now proposed. The housing application was refused in 2015. The site owner had put the site forward as a potential housing site again in 2018 as part of a review of the local plan. However, all the sites submitted via this process were still under consideration so the outcome of this was unknown.
19. The case officer’s report also included a summary of comments by consultees and objectors.
20. The officer stated it was necessary to consider whether exemptions applied, whether a hedge was covered by the regulations and whether a hedge met any of the importance criteria. Then, it was necessary to consider whether, on balance, the works were justified, balancing the reasons given for the work against the importance of the hedge and their impact upon it.
21. The officer set out the exemptions and decided one of them applied; the exemption at paragraph 6 (1)(a) of the regulations. This only applied to Hedge 1. This exemption allows someone to create a new opening in substitution for an existing one (provided the existing opening is filled). He found that the existing gap in Hedge 1 at the south eastern corner of Field 1 could be filled, so this exemption applied to Hedge 1. As the existing opening in Hedge 2 was not now in the same ownership as the remainder of the field, the same exemption could not apply to Hedge 2.
22. As the proposals were not fully exempt (i.e. both hedges were not exempt), there was a need to go on and determine the application.
23. The case officer’s report to the committee described the two hedges and the setting. Although he found Hedge 1 was exempt, he considered the attributes of both hedges. The case officer confirmed that both hedges were long enough and old enough to meet the criteria set out in the regulations. The case officer also determined both hedges met the criteria to be considered "important”.
24. As part of his balancing assessment, the case officer repeated that Hedge 1 was exempt. He went on to consider whether the justification for the work to Hedge 2 outweighed the potential harm. He decided the harm would be negligible.
25. The case officer’s report recommended the removal of the proposed section of Hedge 2 should be allowed. However, the application was referred to the planning committee by the local councillor.

The Committee decision

26. At the planning committee meeting, the case officer briefly explained the application, the position of the hedges and the proposals by the applicant. I understand his presentation included images of the hedges. He briefly explained the regulations and stated exemptions were possible. He told the Committee he considered most exemptions did not apply. However, Hedge 1 was exempt due to exemption 6(1)(a) and should be ruled out of consideration for making a determination. He confirmed that Hedge 2 was not exempt. He explained his view that for Hedge 2 only, it met the criteria in terms of its age, length and importance. Although it met the criteria, he referred to the justification of the works and stated his assessment was that the application should be allowed as the impact was negligible.
27. A member of the public addressed the committee on behalf of a local interest group. Broadly, he stated the group’s research had indicated the hedges were of greater importance than the officer’s report had shown. He also told the Committee that there was no need for a new entrance. He noted the reason the existing entrance was not available was as a result of the landowner’s own actions; selling part of his land to a family member for development under permitted development rights. He put to the committee this could have been avoided. He also felt some of the work carried out under the development may breach planning rules. Officers confirmed the Council was separately considering if any planning enforcement should be taken.
28. When Committee Members debated the application, they noted the gaps being applied for were in the same position as would have been required for the previously rejected housing application. Some questioned if the reason for the application may be to facilitate development at a later date, rather than achieve the access for agricultural machinery that the applicants had set out here.
29. Members asked several questions of the objector and debated the application. At no point in the debate did members discuss or address the potential exemption of Hedge 1. They discussed the application as a whole without any differentiation between the two hedges. After some discussion they voted on a motion to refuse the application. This passed by nine votes to one. The reasons for the decision were based on the historical importance of the hedges. The minutes referred to a relevant paragraph of the case officer’s report and to the refusal based on the importance of hedges (plural). No differentiation was made between the decision for Hedges 1 and 2. The committee only decided the application was to be refused.
30. The Council issued a refusal notice in December. It stated:

“The removal of the hedgerows identified on the plans accompanying your Hedgerow Removal Notice are prohibited. The refusal of permission applies only to Hedge 2 on the east side of [the right of way]. The works to Hedge 1 on the west side of [the right of way] are permitted under regulation 6(1) (a) for making a new opening in substitution for an existing opening which gives access to land, but subject to paragraph (2):

(2) Where the removal of a hedgerow to which these Regulations apply is permitted by these Regulations only by paragraph (1)(a), the person removing it shall fill in the existing opening by planting a hedge within 8 months of the making of the new opening.

31. The crux of the group’s complaint is that:
• The decision notice issued by the Council went against the Committee’s decision to refuse the application. They noted the Committee intended to refuse permission for the removal of both hedges, not just Hedge 2.
• They stated the case officer failed to properly consider the application in that he; did not properly consider objections in his report; failed to consult Historic England and gave some incorrect information to councillors about the importance of the hedges at the committee meeting.
32. The Council’s complaint response stated it had taken legal advice when considering the issues raised. The Council acknowledged the decision notice failed to give effect to the committee’s “stated intention to protect Hedge 1 as well”. However, it stated Hedge 1 was exempt from the regulations
33. The Council also acknowledged there were issues with the clarity in the committee minutes and advice given to the committee when reaching decisions against officer recommendations. They also noted the importance of ensuring the scope of applications being presented to committee and officer recommendations on them must be clear.

Analysis – Was there fault by the Council

34. There was fault by the Council in the handling of the hedge removal application.
35. The case officer’s report was clear at several points that he considered the works proposed to Hedge 1 were exempt, but those planned for Hedge 2 were not. However, having found Hedge 1 exempt, he went on to consider and analyse its attributes along with Hedge 2. This potentially caused some confusion.
36. Planning Committees are not bound by officer recommendations and they are entitled to reach decisions which go against those recommendations. However, should they wish to do so, Members should provide clear planning reasons for their decisions.
37. The Committee’s reasons for refusal explained why Members took a contrary view to the case officer about the balancing of the harm against the historic importance of the hedges (plural). They stated the importance of the hedges was such that the application should be refused. However, the case officer’s recommendation was distinctly different in respect of Hedge 1 and Hedge 2. I found there was a failure to fully articulate why Members felt that the exemption at Paragraph 6(1)(a) of the regulations did not apply to Hedge 1.
38. Probity in Planning guidance also recommends that Officers should be given an opportunity to explain the implications of a contrary decision. In this situation, there was a lack of clarity about whether Members’ decision related to both Hedges 1 and 2 (given the distinctly different position the case officer took for Hedges 1 and 2). Officers should have sought to clarify this at the Committee meeting.
39. The failure to properly articulate the reasons for the decision and failure to clarify its meaning at the committee meeting was fault.
40. I understand, following the decision, the Committee expressed concern that their decision had not been properly carried out by officers. Based on the information I have seen and heard, it seems likely to me that irrespective of the officer recommendation that Hedge 1 was exempt, the Committee intended to refuse the application for both hedges.
41. So, there was further fault by the Council in that it issued a decision notice on the planning application which did not properly reflect the decision that the Committee took. The Committee minutes record a decision to refuse permission based on the importance of the hedges (plural). Whereas the decision notice stated the decision did not apply to Hedge 1. This is not the same as the decision the Committee made. The lack of clarity about Member’s view on the exemption for Hedge 1 at the meeting is likely to have partly led to this, but in any event, councils should not issue decisions that do not correctly reflect the decisions of Committee Members.
42. I have not gone on to consider whether the case officer should have consulted Historic England or the other concerns the group had about the case officer’s consideration of the application. This is because, there was no dispute that the hedgerows met the criteria for consideration under the regulations and were important. I understand the group felt the importance and their significance was greater than the officer’s report explained. They felt Historic England should have been consulted too, but the Committee agreed with the group’s view that the application should be refused. So, no injustice flows from the other issues the group raise with of the case officer’s assessment. As a result, I have not investigated it further.

Injustice

43. There was some injustice to the complainants in that there was some confusion as to why the decision notice wording did not properly reflect the Committee discussion. The Council should apologise for this.
44. I recognise the intended committee decision to refuse the removal of both hedges was not that which the Council issued. Despite this, I am not persuaded this led to significant injustice to the complainants. I have explained the reasons for this below.
45. The Committee was entitled to decide to refuse the whole application, declining an exemption for Hedge 1. However, a decision to refuse the application would have provided the applicant with appeal rights. On the basis of the information I have seen, it seems likely that the works to Hedge 1 were exempt. So, it seems likely that the works would have been allowed at appeal. As a result, it does not seem to me the actual outcome would have been different, if the fault had not occurred.
46. The Council has indicated that it will respond to the issues it found via an improvement plan.

Agreed action

47. Within four weeks the Council agreed to apologise to the group for the confusion caused in the handling of this application and the failure to issue the decision as the Committee had intended.
48. Within three months the Council agreed to review the actions of its officers and planning committee in respect of this application and to take steps to ensure that the guidance within ‘Probity in Planning’ is adhered to.

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Final decision

49. There was fault by the Council. As the Council has agreed to my recommendations, I have completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman