Summary: The Ombudsman does not have reason to investigate this complaint about the way the Council dealt with a planning case. This is because there is no sign of substantive fault by the Council to warrant our involvement. In addition we could not achieve a different outcome for the complainant.

The complaint

1. The complainant, who I shall call Mr X, complained about the way the Council handled planning issues in relation to a development of two houses near his home. Mr X complained in particular that the Council did not take sufficient action about the unauthorised removal of an established tree from the site, and that his ability to comment on the planning applications in question was compromised as a result.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information Mr X provided with his complaint, the comments he made when we spoke on the telephone and his further comments in response to a draft of this decision. I also took account of information from the Council and documents on its website about the planning applications in question.

What I found

4. In 2018 the Council granted planning permission for two new houses to be built on land two doors down from where Mr X lives.
5. Mr X was unhappy with planning proposal as he said one of the new houses would overlook his property. He felt that moving the houses forward in the plot would overcome this problem.
6. But Mr X did not make objections to the planning application. This is because he was also concerned to see that a mature tree at the front of the planning site would be protected as a local amenity. He did not want to suggest moving the houses forward as this might have meant cutting down the tree. However Mr X was reassured that the approved plans showed the tree was to be retained.
7. The tree was not subject to a Tree Preservation Order (TPO), and the Council did not impose a specific planning condition requiring its retention. But the Council’s Tree Officer asked for improved details for the preservation of the tree, and the Council made it a condition that the developer would provide a new landscaping and tree planting plan before development on site was started.
8. However on the first day that work started on the site the following year, the builder cut down the tree. Mr X immediately reported this to the Council.
9. Mr X said some Council officers gave him the impression that the Council would halt the works on site as a result of the builder’s actions. But this did not happen, and instead the Council encouraged the developer to provide a new landscaping plan which included planting a young tree of the same type in place of the old one.
10. The Council subsequently approved this plan when the developer applied to discharge the conditions attached to the original planning consent.

Analysis

11. Mr X remains unhappy about the Council’s actions. But I consider the Ombudsman does not have grounds to investigate his complaint about this matter, mainly because there is little sign of fault by the Council.
12. First, I am not convinced we could fault the Council on the basis it should have done more to prevent the tree being removed. In particular I do not see the Council should necessarily have imposed a planning condition for the retention of the tree given it was not subject to a TPO. I also understand the Council’s Tree Officer did not recommend a condition to that effect.
13. In any case, even if there had been a condition about retaining the tree I do not see this would necessarily have guaranteed it would not have been removed in the same way. In addition I do not see that a condition on the tree would have significantly affected the Council’s options for taking action after its removal.
14. Councils have powers to take enforcement action where someone carries out development without the required planning permission. But taking enforcement action is a discretionary matter, and it is up to councils to decide if it is expedient to take action in any particular case. Councils also have a range of other options to secure a satisfactory remedy for a breach of planning control without necessarily taking formal action.
15. The Council decided there was no breach of planning which it could enforce against in this case. But I do not see we would be able to fault it for taking this view.
16. I consider the Council took appropriate steps to achieve a suitable remedy in this case by ensuring the developer provided an acceptable landscaping and tree planting scheme including a replacement for the tree which had been cut down.
17. I am also not convinced that using any of its formal enforcement options, such as serving a temporary stop notice to halt works on site, would have been a proportionate way for the Council to have addressed the particular planning issues in this case or would necessarily have produced a better outcome.
18. In addition I do not see we could say that any fault by the Council meant Mr X was prevented from raising objections which would have affected its planning decisions or the way the development is now being built.
19. In particular, even if Mr X had felt able to submit his objections and proposal to change the position of the houses at the time the initial application was being considered, I do not see the Council would necessarily have been in any position to achieve the amendment to the scheme which he wanted. At the end of the day the Council was bound to decide the application as presented to it, and it could not insist the developer put forward an alternative layout.
20. The planning officer’s report on the first application also indicates that the Council took account of the impact on neighbours’ amenity when making its decision, and I see no reason to suggest that decision would necessarily have been any different if Mr X’s particular objections had been considered at the time.
21. It is understandable if Mr X is left with a sense of frustration about what has happened on the planning site near his home. But I have concluded that we would not be justified in starting an investigation in his case as it is unlikely that we would find fault with the Council, or that we could achieve a different outcome for him regarding the planning decisions and development in question.

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Final decision

22. The Ombudsman does not have grounds to start an investigation of Mr X’s complaint about the way the Council dealt with planning issues regarding a development near where he lives. This is because there is little sign of fault by the Council. In addition it appears an investigation is unlikely to lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman