Summary: Mr X complained about the Council’s failure to protect mature trees on land behind his home. Mr X says the removal of the trees has affected his amenity. There was some fault in the way the Council made its planning decision, which it agreed to remedy.

The complaint

1. Mr X complained the Council failed to protect mature trees behind his home after it had given misleading assurances they would be protected.
2. Mr X complained the character of the area, his outlook and privacy are affected by the loss of trees.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 read the complaint and discussed it with Mr 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.
6. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and guidance

Planning applications

7. Councils should approve planning applications that accord with policies on the local development plan unless other material planning considerations indicate they should not.
8. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
9. 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.

Planning conditions

10. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
11. Government guidance warns that care should be taken when using ‘pre-commencement’ conditions. These are conditions that attempt to prevent development until the condition has been complied with.
12. The courts have considered these conditions in the past and found them to fail the test of enforceability. This is because conditions only take effect when the development commences.
13. Since 2018, pre-commencement conditions may not be imposed without the written agreement of the applicant. Without agreement, councils can still impose pre-commencement conditions if they follow a procedure set out in regulations.
14. Government guidance on tree protection says that, when granting planning permission, councils:

‘… have a duty to ensure, whenever appropriate, that planning conditions are used to provide for tree preservation and planting. Orders should be made in respect of trees where it appears necessary in connection with the grant of permission.’

Tree Preservation Orders

15. 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.
16. 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 to for affected persons and the public to make representations. TPOs can only be confirmed within six 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.

What happened

17. Mr X lives in an area that is designated as an Area of Special Residential Character (ASRC). The ASRC is supplementary planning guidance aimed at protecting areas from unsympathetic development.
18. In relation to Mr X’s neighbourhood, the ASRC says:

‘The overriding impression of the Area is that the landscape has matured well and provides a very good green setting for the buildings. The presence of mature trees and shrubs provided both ornament and privacy’.

19. The land to the rear of Mr X was a bungalow with mature trees in the garden. A new owner sought permission to raise the roof and extend the bungalow. The rear of Mr X’s home is about 35 metres from the front of the bungalow and offset at a slight angle.
20. A planning case officer visited the site and wrote a report setting out their recommendations to the Council’s planning committee. The case officer report included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• relevant planning policy and guidance, including the ASRC;
• an appraisal of the main planning considerations, including impact key issues, the impact on neighbouring amenity in the context of the ASRC; and
• the officer’s recommendation to approve the application, subject to planning conditions.
21. The case officer said that, because of the significant distance between the site and nearby properties, the trees on the site were not necessary to protect amenity. The officer said the trees provide a good setting and a greater level of privacy as part of the ASRC, and so it would be beneficial to retain a number of trees on the site.
22. Later in the report, the case officer said that if members were minded to approve the application, there should be a condition:

‘… to ensure that a good level of planting is retained and/or provided on site’.

23. The case officer said that a Tree Preservation Order would not be necessary:

‘… as satisfactory retention and replacement planting can be guaranteed through use of a condition.’

24. The committee voted to approve the application subject to a planning condition which required that before the extended bungalow was occupied, the developer must submit details to be approved by the Council showing landscaping including trees to be retained and planted.
25. The Council received a second planning application, to demolish the bungalow and build a house. The case officer visited the site again and wrote a report, noting that the site had been ‘somewhat cleared’ but a ‘… large number of trees had been retained to the front boundary…’. The case officer recommended ‘the same condition from the previous permission is used that a planning scheme including trees to be retained and proposed planting is submitted and approved by the LPA’.
26. The second application was approved subject to the same landscaping condition.
27. Work on the site continued and all remaining mature trees on the site were cut down. The developer then submitted a third application to build a driveway and garage on land where the trees once stood. This application has yet to be decided.
28. I discussed the case with a planning manager, who said:
• the only way to ensure or guarantee retention of trees on site would have been to use a TPO, but these trees were not worthy of TPO protection;
• the Council could not use a pre-commencement condition to require retention, planting and landscaping details before development began;
• it was not possible to ‘guarantee’ or ‘ensure’ mature trees were retained on site by using a planning condition, and that the Council’s planning members would have known this.

My findings

29. The case officer report shows the advice and recommendations given to the planning committee before the decision was made. The report advises members that, because of the ASRC, it is important to retain some of the mature trees on the site, though they are not worthy of TPO protection. The report says that by using a condition, retention can be guaranteed or ensured, though in one place in the report it says the condition could ensure a ‘good level of planting is retained and/or provided on site’.
30. The case officer report assured members that retention is desirable and can be guaranteed, but now the Council now says that planning conditions cannot ensure or guarantee retention of mature trees – only a TPO could do that. Though I cannot know what members knew or understood about planning conditions and their limits in relation to tree protection, I can see what they were told. The assurances given in the case officer report gave a misleading impression to members of the scope of planning controls and this is fault.
31. I cannot say that but for this fault, the outcome would have been any different. It is possible they might have been satisfied with replanting and landscaping. Also, as the planning process is ongoing and though all mature trees have been removed, the Council still has planning power to control the site.
32. Because of the distance between the rear of Mr X’s house and the new development, I cannot say it is likely the Council would have done more to protect his privacy, but I think Mr X was caused some injustice by the fault I have found. Mr X was entitled to expect the Council would do what it said it could, to guarantee and ensure retention of some mature trees, so by benefiting his outlook and amenity. He is understandably disappointed and confused by what has happened, which has left him uncertain about what might have happened if members had been properly advised.
33. The Council should accept it was at fault and take action to remedy the injustice to Mr X.

Agreed action

34. To remedy the injustice caused by the fault I have found, the Council has agreed to:
• apologise to Mr X for its fault and the impact this has had on him;
• pay £150 for the time and trouble Mr X has been put to in bringing his complaint to the Ombudsman;
• remind its planning officers of its powers in relation to tree protection and the importance of providing clear and unambiguous written advice to decision-makers; and
• given the acknowledged limits of planning conditions in relation to tree protection, it will consider how best to ensure the aims of its ASRC are met in relation to development proposals.
35. The Council will confirm it has carried out the remedy within six weeks of our final decision.

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Final decision

36. I found evidence of fault causing an injustice which the Council has agreed to remedy. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman