Summary: X complained about the Council’s decision relating to development on land next to a woodland protected by a Tree Preservation Order. We found fault in the way the Council made its decision. The Council will apologise for the injustice caused to X and for it to review its practices and procedures to avoid the same fault happening again.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the way the Council dealt with a planning application that was next to a woodland subject to a Tree Preservation Order (TPO) and an ancient field boundary.
3. X said:
• There was an error on a plan, which did not show a tree on the boundary that was part of the TPO.
• The Council missed an opportunity to protect bats on the site when it approved the planning application and again when it approved an application to amend approved plans.
• The Council failed to get advice from an independent tree expert and made its decision relying solely on the advice of the applicant’s expert.
• The Council did not include recommendations made by the applicant’s tree expert when it made its decision.
• No consideration was given to historic records which showed the positions of field boundaries.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’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

6. I read the complaint and the complaint was discussed with X on the telephone. I read the Council’s response to the complaint, considered documents from its planning files, including the plans, the case officer’s report and a tree report from the applicant’s expert. I considered relevant law and guidance and the Ombudsman’s guidance on remedies published on our website.
7. X and the Council had an opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Planning law and guidance

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Tree Preservation Orders

12. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
13. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

Protected species law

14. Certain animal species are protected by law. It is a criminal offence, amongst other things, to:
• deliberately injure or kill a protected species;
• intentionally or recklessly disturb them; or
• damage or destroy a place used for breeding or resting, even if the protected species is not occupying it.

Errors on planning application plans

15. Where an error in an application plan, drawing or other document has not been noticed before a decision is made, the Ombudsman will only criticise a council if the error would have:
• been obvious to any reasonable officer; and
• made a difference to the outcome to the Council’s decision.

Background

16. The Council approved a planning application for development on land next to a woodland protected by a TPO, one tree overhung the site boundary. There were also trees on the site.
17. Before it made its decision, the Council considered a tree report submitted by the applicant. The report was written by an independent ecological expert, and it included recommendations. The report’s details included:
• an area marked as a Construction Exclusion Zone;
• Tree Root Protection Areas and special measures necessary to protect trees;
• advice about regulations to protect bat habitats and nesting birds. The report recommended times during which work that might affect bats and birds should be avoided.

Amendments to planning applications

18. Most planning approvals relating to development will include a condition requiring compliance with approved plans. If after approval is granted, applicants want to carry out development without complying with planning conditions, they can apply to remove or vary the original condition. The Council will then decide whether to grant permission to change obligations required in the original application.
19. An application under sections 73 of the Town and Country Planning Act 1990 may allow a developer to apply to carry out development without complying with conditions imposed by the original approval. This section can be used to vary or delete conditions imposed on planning approvals. However, variations cannot add or remove development or uses that are set out in the description of the application in the decision notice.

The Council’s response to the complaint

20. The Council wrote to X with its response to the issues they had raised in their complaint. It said:
• No trees protected by the TPO were affected by the development, though a tree that overhangs the site needed protection, which was provided by a landscape condition.
• The Council was not obliged to seek its own advice from an ecologist or tree expert, and it was entitled to consider the report commissioned by the applicant’s independent ecological expert.
• Bat and bird protection legislation protected the site, so the Council was not obliged to add a further layer of protection through planning conditions. However, the independent ecological expert had suggested conditions relating to lighting levels to protect bat habitats, and there was no evidence to show this issue had been considered by the planning case officer before a decision was made.
• The Council agreed plans showing trees near the boundary were not accurate, and if the planning case officer had noticed this they would have asked for the plans to be corrected. However, the tree nearest the site was protected during construction by a landscape condition and so no harm had resulted from any inaccurate plans.
21. A planning manager told us what happened and said:
• There had been an application to amend the location of a building and to change the number of a plan drawing. However, the planning manager said the Council had no power to use that application to impose controls on outdoor lighting, which were not part of the original application. The manager said if the Council had considered the independent expert’s report more thoroughly, it might have required a condition to control outdoor lighting.
• The historic environment record, which showed historic land use was a County Council document but not listed as a ‘planning constraint’ on the site. Planning constraints on application sites do sometimes include listed buildings or historic monuments and structure, or sites of special scientific, historical or archaeological significance. These constraints are marked on maps to indicate issues that must be considered. However, there was nothing to indicate an issue that the planners had to consider here.
• The Council had recently recruited a tree officer, who was satisfied that no TPO protected trees were affected and with measures taken to protect trees on site or near the boundary. The tree officer was also updating TPOs in the area to ensure they are compliant with changes to regulations. The tree officer was also working to ensure TPOs were available to view online, and not just on maps at the Council’s planning office.

My findings

22. The Council accepted it failed to take proper account of the independent ecologist’s report and did not consider their recommendations. This was fault.
23. It is possible that, but for this fault, the Council might have imposed conditions to require outdoor lighting more appropriate for bats. The Council has agreed to take action to make it less likely this fault occurs again in future. The Council has also agreed to apologise to X for the confusion, disappointment and frustration the fault caused.
24. The Council said that, if it had noticed an error on plans marking the location of trees near the site boundary, it would have required the plans to be corrected. I have looked at the plans, but I cannot say that any reasonable officer would have noticed the discrepancy. Because of this, I find no fault in relation to this issue.
25. X said the Council should have sought advice from its own ecologist instead of relying on the applicant’s independent expert. The Council was not obliged to seek further advice and was entitled to rely on the independent ecologist’s report.
26. X said the Council was wrong not to take account of the County Council’s Historical Environmental Record before it made its planning decision. The Council was not obliged to do this.
27. X said the Council missed an opportunity to provide better outdoor lighting when it approved an application to amend approved plans.
28. The Ombudsman can only criticise councils if there is fault in the way decisions are made but only the courts can decide what is or is not lawful. The Council said it did not have the power to use an amendment application to assert additional planning obligations. I read the amendment application documents, and I cannot say its position is legally correct or incorrect.

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Action

29. The Council will apologise to X for the confusion, disappointment and frustration the fault we found caused. It will do this within one month from the date of our final decision.
30. The Council will review its working practices and procedures to reduce the chance that the fault we found happens again. If it makes changes, it will carry out staff training as necessary. It will carry out the review within three months from the date of our final decision and share the outcome of the review with its relevant oversight and scrutiny committee within one month from the end of the review.
31. The Council will provide us with evidence it has complied with the above actions.

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Decision

32. I have completed the investigation finding fault causing an injustice. The Council has agreed to take action to remedy the injustice caused and prevent recurrence of the faults.

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Investigator's decision on behalf of the Ombudsman