Summary: Mr and Mrs B say the Council has failed to properly process a planning application for a residential development next to their home. Mr and Mrs B say this has caused them a loss of privacy, distress and uncertainty. The Ombudsman finds the Council failed to upload certain application documents onto its website in time. But, the Ombudsman does not find that this fault caused Mr and Mrs B significant injustice. The Ombudsman does not uphold the remaining parts of the complaint as the Council was not at fault.

The complaint

1. The complainants, whom I refer to as Mr and Mrs B, say the Council has failed to properly process a planning application for a residential development next to their home. In particular:
1. the application should have been determined by the Planning Committee instead of at delegated officer level, given the history of past applications, the importance of the wooded character of the site, and the number of objections;
2. the Council did not renotify or inform neighbours when the Design and Access Statement and Ecological Assessment Report were belatedly uploaded to the website during the determination of the application, and the Tree Management Plan was only added to the website after the application had been determined;
3. the Case Officer’s report failed to note the entire site is covered by a Woodland Tree Preservation Order (TPO), and the report failed to provide a true picture of the history of applications related to the felling of trees;
4. the Case Officer’s summary of the objections submitted by residents is misleading and inaccurate (particularly with regard to concerns about the scale, bulk and height of the houses, loss of privacy, the impact on the protected woodland, and the future of the front-half of the site), and the objections have been disregarded by the Council;
5. the development is contrary to the criteria in the Council’s Design of New Development policy;
6. the Council has failed to identify errors in the Tree Protection Plan and Tree Management Plan. For example, two trees along a shared boundary are shown as currently retained in the Tree Protection Plan, and their retention to be reviewed after five years in the Tree Management Plan. However, these two trees have actually already been felled;
7. the plans and report do not consider how the existing changes in ground levels on the site might affect the tree root protection areas or the final build heights; and,
8. the Council has failed to address concerns that the front-half of the site may be developed in the future.
2. The complainants say they have suffered a loss of privacy, distress and uncertainty. The complainants say the overbearing nature of the development will negatively affect them if screening from the trees and, in particular, laurels is removed and the Tree Management Plan is not adhered to. They say this would impact the value of their property.
3. The complainants say they have gone to time and trouble complaining to the Council.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We provide a free service, but must use public money carefully. We may decide not to continue with an investigation if we believe:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

6. For example, even if there is administrative fault in the way a Council has handled a planning application, we will also consider whether this has affected the outcome of the application.
7. And we cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. 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

10. I considered the information and documents provided by Mr and Mrs B, and the Council. I spoke to Mr B about his and Mrs B’s complaint. I also considered the information on the Council’s website about the planning and tree felling applications that have been submitted for this site.
11. Mr and Mrs B, and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Planning applications

12. Planning permission is required for the development of land (including its material change of use). Planning permission may be granted subject to conditions relating to the development and use of land.
13. Councils must consider applications on their planning merits and make decisions in line with relevant policies in their development plans, unless material planning considerations suggest otherwise. Material considerations concern the use and development of land in the public interest, and not private matters such as the applicant’s behaviour or house prices. Material considerations include issues such as overlooking, previous appeal decisions, layout and density of the building, and traffic generation.
14. Non-material planning considerations that are not relevant to the council’s decision include issues such as previous objections or representations regarding another site or application, loss of property value and loss of view.
15. Planning policies and material planning considerations may pull in different directions, for example, supporting new housing and protecting existing residential amenities. While councils must take account of relevant policies and material planning issues, they may give competing considerations different weight. In practice, this means councils may grant planning permission for development that does not comply with all relevant planning policies.
16. Peoples’ planning and land use comments on development will be material planning considerations. Councils must take such comments into account in deciding applications, but they do not have to agree with those comments.

Publicity for planning applications

17. Article 15 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 deals with publicity for applications for planning permission. It says applications must be publicised in two ways: 1) with either a site notice or by serving notice to any adjoining owner or occupier; and 2) in a local newspaper.
18. Site notices must be on display in at least one place on or near to the land to which the application refers for a minimum of 21 days. If a site notice has been removed, obscured or defaced before the end of the 21-day period, without any fault or intention by the local planning authority, the authority will be seen as having complied with the law. This is as long as it has taken “reasonable steps” to protect the notice.
19. Article 15 specifies which information must be published on the authority’s website.
20. An adjoining owner or occupier is defined as an owner or occupier of any land which adjoins the land to which the application refers.

Tree Preservation Orders (TPOs)

21. 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.

22. The woodland category’s purpose is to safeguard a woodland as a whole. So it follows that all trees within a woodland TPO are protected. This is true irrespective of whether the trees would be deserving of individual protection. Trees and saplings which grow naturally or are planted within the woodland area after the Order is made are also protected by the TPO.
23. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. 
24. The validity of a TPO can be challenged in the High Court on a point of law. Councils have powers to vary or revoke TPOs.

Dorset Council’s Scheme of Delegation

25. Planning decisions by a council can either be:

• delegated to council officers to make; or
• decided by Members of its planning committee.

26. Dorset Council’s Scheme of Delegation works based on a “cascade principle of delegation/nomination to ensure that decisions are taken at the most appropriate level closest to those who will be affected.” The cascade principle means that any Council officer given a power under its Scheme of Delegation can nominate other officers (“nominated officers”) to exercise those powers.
27. When it receives a planning application, the Council’s Scheme of Delegation states that, in certain circumstances, its nominated officer, in consultation with the Chair and Vice-Chair of the most relevant Planning Committee, shall decide whether the application should be determined by its Planning Committee. This applies when the Council receives written representations about a planning applications from:

• two or more Members; and/or
• one or more town and/or parish councils.

28. The representations should contain at least one material planning consideration. It is, however, still open to the nominated officer, Chair and Vice-Chair to decide the application can be decided at delegated officer level.

Planning and tree felling application history

29. The application site is subject to a woodland TPO.
30. In 2013, the Council received an application to fell some trees within the site. The Council approved the felling of certain trees on the condition they would be replaced. However, it refused the felling of one tree as it provided amenity value to the locality and contributed to its wooded characteristics.
31. In 2014, the Council also reached a split decision on a further application to fell certain trees. The applicant appealed to the Planning Inspectorate. Its inspector reached a split decision for the following reasons:

• the inspector approved the felling of certain trees, on the condition they be replaced, as this would create sufficient space for new planting and regeneration; and,
• the inspector refused the removal of the remaining trees because of the contribution they made to the appearance of the area and wider landscape.

32. In 2015, the Council refused a planning application for two dwellings on the application site. It decided that it did not object to the principle of the development of the two dwellings. However, it refused the application because the resultant loss of two particular trees would be detrimental to the character and structure of the protected woodland. The felling of these two trees had previously been refused by the Council in 2013 and 2014.
33. In 2016, the Planning Inspectorate dismissed the applicant’s subsequent appeal, noting the previous inspector’s comments, and concluded the two specific trees considered in 2015 were integral to the structure of the woodland. It decided the loss of these trees would be detrimental to the character and appearance of the area.
34. Later in 2016, the Council decided on an application to fell nine trees. The Council said the woodland site had been over-thinned and any further tree removal would be detrimental to the amenity value, woodland character and the stability of the remaining tree cover on site. It, therefore, refused the application to fell eight of the trees, but allowed works to be carried out on the ninth tree.

Summary of what happened

35. In 2019, a planning application for four dwellings was then submitted to the Council. The accompanying Tree Management Plan proposed the removal of eleven trees from the site to allow for the development.
36. The Council notified neighbours of the application prior to making its decision and invited them to send any comments.
37. Mr and Mrs B sent the Council their objections about the proposed development.
38. Mr and Mrs B then contacted the Council to say the Design and Access Statement and Ecological Assessment Report had not been uploaded to the Council’s website. The Council uploaded these documents in response to Mr and Mrs B’s contact.
39. In May, the Council’s Case Officer provided his report recommending the proposed development, subject to certain planning conditions. These conditions, amongst other matters, concerned the protection of the trees on the development site.
40. The Council decided to grant planning permission based on its Case Officer’s report and recommendations.
41. In June, Mr and Mrs B complained to the Council about its decision and handling of the application process.
42. In July and October, the Council sent Mr and Mrs B its initial then final complaints responses.

Analysis – was there fault by the Council causing injustice

Scheme of delegation

43. Mr and Mrs B complain the application should have been determined by the Planning Committee instead of at delegated officer level (part a of the complaint).
44. The Council’s Scheme of Delegation contains the process the Council must follow when, as in this case, a parish council makes written representations about a planning application and does not withdraw these before the application is decided on. If the parish council’s representations contain at least one material planning consideration, the Scheme of Delegation says that the nominated officer, in consultation with the Chair and Vice-Chair of the most relevant Planning Committee, can decide whether the application should be determined by the Planning Committee.
45. In this case, the nominated officer was the Head of Development Management. In its final complaint response to Mr and Mrs B, the Council explained the Case Officer’s report was considered by the Chair and Vice-Chair of the relevant Planning Committee under its Scheme of Delegation. It said both the Chair and Vice-Chair decided the authority to decide on the application should be delegated to the nominated officer. I have seen evidence that shows the nominated officer confirmed she agreed with this action. The nominated officer said the Case Officer’s report satisfactorily addressed the parish council’s concerns and so the decision on the application could be delegated to officers as per the Scheme of Delegation.
46. I am satisfied with the Council’s response on this matter. I find that the Council has complied with its Scheme of Delegation when deciding the application could be determined at delegated officer level instead of by the Planning Committee. This was a decision it was entitled to make. I do not find the Council at fault here. I understand Mr and Mrs B disagree with the Council’s decision. However, as explained in paragraph seven above, without evidence of fault in the way the Council made its decision, I cannot question its content.

Absence of application documents on-line

47. Mr and Mrs B complain the Council did not renotify or inform neighbours when the Design and Access Statement, and Ecological Assessment Report were belatedly uploaded to the website during the determination of the application, and the Tree Management Plan was only added to the website after the application had been determined (part b of the complaint).
48. In its complaint response to Mr and Mrs B, the Council accepted it had failed to upload the Design and Access Statement and Ecological Assessment Report to the website. The Council uploaded these documents when Mr B had notified the Council about the missing documents, but this was several weeks after the deadline to make representations.
49. In its complaint response, the Council accepted that it did not upload the Tree Management Plan until after the Council had made its decision on the application. It apologised to Mr and Mrs B for this, which it considered a “clerical error”. This is fault.
50. To avoid this happening again, the Council asked relevant officers to review planning application files more regularly to ensure they were up to date. The Council reassured Mr and Mrs B by confirming the Case Officer had considered the Tree Management Plan before producing the report.
51. I am satisfied with the action the Council has taken in relation to the Design and Access Statement, Ecological Assessment Report and Tree Management Plan.
52. I agree that it would have been good practice for the Council to have notified all residents who had made representations of the newly uploaded documents. However, I am not persuaded the lateness in uploading the documents caused Mr and Mrs B injustice. This is based on the following reasons:

• I have seen evidence that shows Mr and Mrs B made additional representations once the Design and Access Statement and Ecological Assessment Report were uploaded. They made reference to these documents. Their representations were received before the Council made its decision about the planning application;
• in its complaint response to Mr and Mrs B, the Council said it did not think the error in uploading the documents unfairly prejudiced the neighbours who made representations. On balance, I find this shows that the outcome of the planning application would not have been different had the three missing documents been uploaded within the consultation period (see paragraphs five and six above). This is supported by the fact the Council’s Case Officer had considered the three missing documents before making recommendations in the report; and,
• the Council said it considered the neighbours had sufficient time to make representations based on the documents available. The site notice shows that neighbours had 21 days to make representations, which is in line with Government Guidance on Consultation and pre-decision matters (published online 2014, updated 2020).

Consideration of the Woodland Tree Preservation Order and felling history

53. Mr and Mrs B complain the Case Officer’s report failed to note the entire site is covered by a Woodland Tree Preservation Order (TPO), and the report failed to provide a true picture of the history of applications related to the felling of trees (part c of the complaint).
54. The Council has confirmed that the site of the approved development continues to benefit from the Woodland Tree Preservation Order (Woodland TPO). The Council Case Officer’s report directly refers to the relevant Woodland TPO. It does so without stating specifically the TPO covers a woodland (paragraphs 21 and 22 above detail the protection a Woodland TPO provides).
55. I agree that it would be best practice to clearly specify whether a TPO protects a woodland. However, reading the Case Officer’s report as a whole, I find that the Case Officer had due regard to the nature of the TPO covering the woodland as a whole. For example, in the section of the report concerning the trees on site, the Case Officer acknowledges the trees are the most significant restriction on the site. It confirms the Council’s tree team had not made any objections to the proposal so long as a long-term management plan for the trees across the site was established. I am not persuaded the inclusion of “woodland” in the Case Officer’s report would have led to a different outcome. I, therefore, do not find that this missing word amounts to fault.
56. I have considered the history of applications related to the felling of trees on the site (see paragraphs 29 to 34 above). The Case Officer’s report does not provide a full chronology of these applications. It does provide the details of those decisions the Council’s Case Officer considered most relevant to the 2019 application. On balance, I, therefore, do not think the lack of such a precise chronology amounted to fault. This is also because of the following reasons:

• the Council confirmed in its complaints response to Mr and Mrs B that the tree and nature conservation issues that affected these earlier decisions had been sufficiently addressed during the 2019 application process. I have seen evidence that shows the eleven trees to be felled because of the development, as detailed in the Tree Management and Protection Plans, were not the subject of previous tree felling refusal decisions nor do they include the two trees that resulted in the 2015 and 2016 refusal decisions (see paragraphs 32 and 33 above);
• in response to my enquiries, the Council has confirmed the granting of planning permission in 2019 included a number of planning conditions to protect the trees during the development phase;
• the Council Case Officer’s report confirms this. It explains the Council’s tree team had engaged in pre-application consultations with the applicant and assessed the documents provided in support of the application, including the Tree Management and Protection Plans. The team provided no objections to the proposed development subject to certain planning conditions. These tree protection planning conditions were included in the Case Officer’s report that received planning permission; and,
• in its complaints responses, the Council has assured Mr and Mrs B these planning conditions will be monitored accordingly and were designed to secure long-term management of the remaining woodland trees.

57. I am satisfied the Council has sufficiently considered the tree protection issues concerning the site. I appreciate that Mr and Mrs B disagree with the Council’s decision, but that is not evidence of fault. However, without evidence of fault in the way the Council reached its decision, I cannot question the content of this decision.

Consideration of objections to the application

58. Mr and Mrs B also complain the Case Officer’s summary of the objections submitted by residents is misleading and inaccurate, and the objections have been disregarded by the Council (part d of the complaint).
59. I have considered how the Council considered the objections received.
60. I would agree that it would be best practice for the Council to have presented these objections in more detail than those given in the Case Officer’s report. However, having considered the report alongside the contents of the objections received from Mr and Mrs B, I am satisfied the Council has addressed any relevant objections raised in sufficient detail in the main body of the report where the Case Officer assesses the main planning considerations of the application. I am, therefore, not persuaded the outcome of the application would have been different had the Case Officer’s report provided greater detail.
61. As explained in paragraph 16 above, the objections made by Mr and Mrs B in response to the planning application were material planning considerations. The Council was obliged to take such comments into account in deciding the application, but it did not have to agree with those comments. As the Council has considered the objections received, I do not find it at fault. I understand that Mr and Mrs B disagree, but it was within the Council’s discretion to decide how much weight should be given to the objections received.

Consideration of the Council’s Design of New Development policy

62. Mr and Mrs B complain the development is contrary to the criteria in the Council’s Design of New Development policy, which is part of its 2014 Core Strategy (part e of the complaint).
63. This policy states the design of any proposed development in the area must be “of a high quality, reflecting and enhancing areas of recognised local distinctiveness.” This requirement will be met if the development is compatible with or improves surroundings in 11 identified areas. I consider the policy itself offers a broad discretion to the Council.
64. I have considered the Council’s Case Officer’s report alongside the Council’s policy. Based on this evidence, the report has identified how the Council’s Design of New Development policy is engaged and provided reasons why the development complies with the policy. It has provided specific planning conditions to ensure compliance with this particular policy. I do not find the Council at fault here as I find that it has given proper consideration to its policy. The Council’s decision about how it chose to consider its policy and apply it was one it was entitled to make.

The Tree Protection Plan and Tree Management Plan

65. Mr and Mrs B complain the Council has failed to identify errors in the Tree Protection Plan and Tree Management Plan. For example, two trees along the shared northern boundary are shown as currently retained in the Tree Protection Plan, and their retention to be reviewed after five years in the Tree Management Plan. However, these two trees have actually already been felled (part f of the complaint).
66. I have considered the Tree Protection and Tree Management Plans. The trees that Mr and Mrs B refer to are present on these plans. The Council has confirmed the two trees were previously allowed to be felled.
67. I have seen no evidence to suggest the inclusion of these trees in the Plans affected the Council’s decision to grant planning permission. The Council confirmed in its final complaint response to Mr and Mrs B that the applicant had sufficiently addressed the tree and conservation issues that had led to a previous refusal decision. I, therefore, do not consider these inaccuracies have affected the outcome of the application (see paragraph six above). I do not find the Council at fault here.
68. I understand Mr and Mrs B are concerned about compliance with the planning conditions set and the Tree Management Plan. This falls outside the scope of this investigation as these concerns relate to potential enforcement issues, which Mr and Mrs B would need to raise with the Council. Planning enforcement by councils is discretionary. It is a matter for council officers’ professional judgement as to whether enforcement action is appropriate.

Ground levels

69. Mr and Mrs B complain the plans and Case Officer’s report do not consider how the existing changes in ground levels on the site might affect the tree root protection areas or the final build heights (part g of the complaint).
70. The Case Officer’s report notes the site slopes down to the south-east corner, and conditions relating to root protection areas and ground levels have been attached to the permission.
71. In response to the enquiries I made, the Council has provided further evidence about specific requests made by its Case Officer for the applicant to provide a levels survey. This survey was produced and considered by the Case Officer.
72. I, therefore, do not find the Council has acted with fault in relation to its consideration of these issues.

Future of the site

73. Mr and Mrs B complain the Council has failed to address concerns that the front-half of the site may be developed in the future (part h of the complaint).
74. Although I appreciate Mr and Mrs B are concerned the applicant might seek to develop the front-half of the site in the future, the Council’s role is largely limited to reacting to development proposals as and when they are submitted. I, therefore, do not find the Council at fault.

Final decision

75. I have completed my investigation. I have decided to uphold part b of the complaint because the Council was at fault. However, I do not find this fault caused Mr and Mrs B significant injustice. This is because, on balance, it is likely the outcome of the application would still be the same if this fault had not occurred.
76. I have decided not to uphold part a and parts c to h of the complaint. This is because there is no fault.

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Investigator's decision on behalf of the Ombudsman