Summary: The Ombudsman will not investigate this complaint about how the Council dealt with a possible breach of planning control. This is because he is unlikely to find fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr X, has complained about how the Council has dealt with reports about a possible breach of planning control.

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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 must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault.

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

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How I considered this complaint

3. I have considered Mr X’s complainant and the Council’s response. I invited Mr X to comment on a draft of this decision and have considered his comments in response.

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What I found

4. Planning authorities may take enforcement action where there has been a breach of planning control. A breach of planning control includes circumstances where someone has built a development without permission or not complied with planning conditions. It is for the Council to decide if there has been a breach of planning control and what, if any, enforcement action is necessary.

What happened

5. The Council received a planning application for a retail development near Mr X’s home. The Council considered the application and granted permission subject to conditions. One of the planning conditions required the developer to submit a landscaping plan to the Council for approval. The developer was also required to replace any trees or shrubs that died within five years of planting.
6. In November 2017, Mr X contacted the Council to raise concerns about the trees which had been planted to screen his home from the development. He said that many of the trees appeared to be dead. The Council looked into Mr X’s concerns and agreed that two of the trees planted by the developer had died. The dead trees were removed and replaced. However, shortly after this Mr X contacted the Council again as the replacement trees also appeared to be dead. An officer from the Council visited and the trees were replaced again in May 2019.
7. Mr X says the developer failed to water the replacement trees, and these have also died. Mr X has complained the Council has not taken any action regarding the planning breach. He says there have been unnecessary delays and he believes the Council has no real intention to deal with the matter.

Assessment

8. I will not investigate Mr X’s complaint about how the Council has dealt with a possible breach of planning control. This is because it is unlikely I would find fault.
9. Mr X has had a previous decision from the Ombudsman about how the Council dealt with breaches of planning control. Therefore, this complaint is only in relation to what has happened since May 2019.
10. Mr X says the Council should take enforcement action against the developer. However, it is for the Council to decide if it has grounds to take formal action. The Council’s tree officer visited the site in September 2019 to inspect the trees but said it was too soon to tell if the trees were dead. I understand Mr X is unhappy with the Council’s response and argues that he provided evidence in October 2019 to show the trees needed replacing. He says the Council’s tree officer should have visited again in light of this evidence. But the tree officer was entitled to use their professional judgement regarding the status of the trees and the Council says it will inspect the trees again in the spring to determine if they need replacing. Until it is known if the trees are dead the Council cannot say if there has been a planning breach and what, if any action, may be required.
11. As the Council has properly looked into Mr X’s concerns before deciding it does not yet have any grounds on which to take action, it is unlikely I could find fault.

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Final decision

12. The Ombudsman should not investigate this complaint. This is because it is unlikely he would find fault by the Council.

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Investigator's decision on behalf of the Ombudsman