Summary: Mrs X complained about the Council’s failure to take planning enforcement action against her neighbours. We ended our investigation as it was unlikely to result in a finding of fault or a meaningful outcome for Mrs X.

The complaint

1. Mrs X complained the Council failed to take planning enforcement action against her neighbours, who removed trees in breach of a planning condition to a planning approval.
2. Mrs X said her amenity is affected by the removal of the trees, which also acted as a wildlife corridor.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I read the complaint and discussed it with Mrs X. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
5. I gave Mrs X and the Council an opportunity to comment on a draft of this decision and I took account of the comments I received before making a final decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
11. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
12. Trees in conservation areas and trees controlled by planning conditions can also be protected by council planning authorities. If trees are not protected, they may be removed by the landowner.

What happened

13. Mrs X lives on a lane. Several years ago, the Council approved a planning application to allow housing development on the other side of the lane. Mrs X’s home has a blank elevation facing the lane, though she has a window on the second floor of her home, which faces down the lane. This window does not face towards the new houses. Mrs X’s home is about 20 metres from the new houses, which are set above her on higher ground.
14. The fences for rear gardens of the new houses were about 5 metres from the lane. Trees grew in the gap between the fences and the lane, affording Mrs X’s home some protection from the new houses.
15. In the last few years, some of the new residents moved their rear fences towards the lane. Mature trees in the gap were felled and Mrs X complained to the Council that the removal of the trees was in breach of a landscaping condition imposed when the new houses were approved.
16. The Council visited the site. It did not find a breach of the landscaping condition, because the land on which the trees had stood was not inside the application site (the land edged in red on the application plans). However, by extending the gardens, the new residents had changed the use of the land that was once beyond their garden fences.
17. The Council asked the residents who had moved their fences to apply for planning permission for the change of use of the land. They submitted retrospective applications which were considered by the Council’s planning committee.
18. A planning case officer wrote reports for the committee. The case officer’s reports included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from Mrs X and other consultees;
• relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on the principle of development, ecology, amenity of other residents; and
• the officer’s recommendation to approve the application, subject to planning conditions.
19. The planning committee considered the applications and approved them, subject to the conditions recommended by the case officer.

My findings

20. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
21. Before we begin or continue our investigations, we consider two, linked questions, which are:
• is it likely there was fault?
• is it likely any fault caused a significant injustice?
22. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
23. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
24. I should not investigate this complaint further and my reasons are as follows:
• It is unlikely that further investigation would result in a finding of fault. This is because when it considered the recent applications to extend garden land, the Council followed the process we would expect and took account of the key material planning considerations including Mrs X’s objections.
• Mrs X’s complaint focuses on the condition of the original planning approval for the houses. The Council considered her allegation, considered its powers and found no breach of condition. It has followed the process we would expect and so I am unlikely to find fault in the way the Council decided Mrs X’s enforcement allegation. In any event, the Council has since considered planning applications for the extended gardens and approved them.
• Even if we were to investigate and find fault, it is unlikely we would be able to recommend a significant personal remedy for Mrs X. This is because she is some distance from the new houses.

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Final decision

25. I ended my investigation as it was unlikely to result in a finding of fault or a meaningful outcome for Mrs X.

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Investigator's decision on behalf of the Ombudsman