Summary: Mr C complains the Council failed to properly consider a reserved matters application for a development next to an area of Ancient Woodland without ensuring adequate protection to prevent harm. We have found no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to properly consider a reserved matters application for a residential development next to an area of Ancient Woodland. In particular, Mr C says the Council failed to properly consider the relevant guidance about such woodlands and did not give enough weight to the impact of development on the woodland and its important and diverse ground ecosystem. Mr C also complains the Council failed to properly consider the impact on the woodland when discharging relevant planning conditions. Mr C further complains about the Council's response to his reports of breaches of planning control at the site and a report about contaminated water from the development site entering the woodland. Mr C also complains the Council has unreasonably refused to protect the trees through Tree Protection Orders (TPOs).
2. Mr C says because of the Council's fault, there is an unacceptable development with an inadequate buffer and protection which will have a detrimental impact on the character and appearance of the woodland and will harm both the trees and their important and diverse ground ecosystem.

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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. 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)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

8. 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.
9. Outline planning permission establishes the acceptability of development, subject to later agreement to details of ‘reserved matters’. Reserved matters may be any or all of access, appearance, landscaping, layout, and scale of the development. An application for approval of details of reserved matters is not a planning application, and there is no legal requirement to give publicity to the application. Grant of a reserved application, together with plans and conditions included in an outline approval, amount to a full permission.
10. All decisions on planning applications must be made in accordance with the council’s development plan unless material considerations indicate otherwise. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
11. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons. Government statements of planning policy are material considerations.
12. General planning policies may pull in different directions such as both promoting residential development and protecting residential amenities. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
13. The National Planning Policy Framework (NPPF) does not change the statutory status of local development plans as the starting point for decision making. It constitutes guidance in drawing up plans and is a material consideration in determining applications. Where the local development plan is silent or the relevant policies are out of date, planning applications must be determined in accordance with a ‘presumption in favour of sustainable development’ unless any adverse impacts would significantly and demonstrably outweigh the benefits when assessed against the National Planning Policy Framework, or the Framework indicates development should be restricted.
14. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
15. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use. Government guidance encourages councils to resolve issues through negotiation and dialogue with developers.
16. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them.

Planning history

17. The Council received a planning application for a residential development of up to 55 dwellings, with associated landscaping and infrastructure in 2015. Natural England objected to the application on the grounds that further information was required due to the proximity to the woodland Site of Special Scientific Interest (SSSI) and concerns the proposed development was likely to damage or destroy the interest features for which the SSSI had been notified. This application was subsequently withdrawn.
18. The Council received a further outline planning application in 2016 for a residential development of up to 55 dwellings, with associated landscaping and infrastructure. The Woodland Trust objected to the application on the grounds the potential for damage to ancient woodland was too great, as further encroachment was likely to occur beyond the initial development, which would lead to an increasing decline in this particular habitat. Concern was also raised the buffer zone shown on the site plan was insufficient for a buffer to Ancient Woodland, and they expected at least 30 metres for this size of development. It also pointed to Natural England’s Standing Advice on Ancient Woodland (2015) which stated that depending on the size of development a minimum buffer should be at least 15 metres. Natural England also objected for similar reasons to those provided for the previous application.
19. The 2016 application was considered by the Council’s Planning Committee who approved the application subject to conditions. This included that the development had to be carried out in accordance with the recommendations of a June 2015 Extended Phase 1 Habitat Survey. The Habitat Survey required a 5 metre buffer zone.
20. I have provided the above planning history for context only as I have not investigated this period due to the restriction outlined at paragraph 6 above. In particular, the 2016 outline application had been in the public domain between 2016 to 2018 when the decision was issued. Mr C did not complain to the Ombudsman until March 2021.

Key events

Consideration of reserved matters

21. Following the granting of the outline planning permission above, the Council received a reserved matters application in 2020 relating to internal access arrangements, layout, scale, appearance and landscaping of a residential development of 44 bungalows.
22. The case officer’s report for the application sets out the site’s relationship with the ancient woodland part of which was designated as a SSSI. It noted that the impact on the ancient woodland and SSSI were fully assessed during the consideration of the outline application.
23. The report highlighted that the Woodland Trust had previously recommended a buffer zone around the site of at least 30 metres and Natural England’s Standing Advice stated that depending on the size of the development, a minimum buffer should be at least 15 metres. The Phase 1 Habitat Survey that accompanied the outline application recommended a 5 metre buffer around the site to protect the integrity of the woodland. The report explained that in approving the outline application, the Council was satisfied that a 5 metre buffer in addition to the other mitigation measures recommended in the Phase 1 Habitat Survey and conditions regarding tree protection measures would provide sufficient protection for the woodland. The report noted that in accordance with the condition of the outline consent, the development proposed included a 5 metre buffer around the site. The report included the objection from the Woodland Trust that the buffer zone should be at least 30 metres in order to avoid root damage and to allow for the effect of pollution from the development. It also included the objection from the Parish Council that the proposed buffer zone was less that the Woodland Trust standard of 30 metres. The case officer concluded the issue of the buffer zone did not need to be revisited in the light of the outline planning permission and as there had been no change in the relevant guidance.
24. The case officer’s report also dealt with concerns regarding the relationship of the dwellings to the woodland with the potential for post development resentment of the trees given their proximity to the small rear gardens. The report referred to shading diagrams that had been provided which did show shading to some dwellings during the winter but that during the summer there was no shade for the majority of the day. The case officer acknowledged the concerns but concluded the impact would not be so significant that a refusal could be justified.
25. The Council’s Planning Committee considered the application and approved the application subject to conditions in August.
26. The Council has highlighted that the 2012 NPPF in place at the time of the 2016 outline application recognised the importance of ancient woodlands and veteran trees at paragraph 118 but allowed for the protection of such trees to be weighed against other material planning considerations. This changed in the 2018 NPPF which indicated that the weight to be given to historic trees had been enhanced and introduced a more stringent test at paragraph 175 which was based on wholly exceptional reasons. This test is referred to in the case officer’s report for the reserved matters application.
27. The Council has acknowledged that by the time the reserved matters application was considered in 2020 the more stringent 2018 NPPF test was a material consideration. As such, if the reserved matters application had been a new application either in outline or full the amended weight in the 2018 NPPF could have resulted in a different outcome. However, as it was a reserved matters application the outline permission and conditions remained in force and had to be given substantial weight in considering the reserved matters details.
28. The Ombudsman looks at procedural fault in how decisions have been made and does not consider planning appeals. My investigation cannot consider the merits of the decisions reached or the professional judgement of the decision maker, provided there has not been procedural fault.
29. Based on the information provided, I am satisfied the Council had enough relevant information to reach a sound decision and properly considered the material planning considerations when doing so.
30. I have seen no evidence of fault in the way the Council considered the reserved matters application for the development.

Discharge of conditions

31. The Council received an application at the end of 2020 for approval of the tree protection measures and Arboricultural Method Statement as required by condition.
32. The Council has provided details of its consideration of this information including the involvement of its Landscape Officer and seeking further information as a result.
33. The case officer noted the response from the Council’s Landscape Officer and reflected the outstanding concerns in the discharge letter. The Council says it considered the information provided was enough to meet the requirements of the condition set at outline stage. It was not considered that a refusal of the request to discharge this condition could be sustained if challenged at appeal.
34. The Council’s Landscape Officer met the developer and the developer’s tree surgeon on site in March to agree a detailed schedule of works to boundary trees subject to agreement by the owner of the trees which was subsequently provided.
35. This was a decision the Council was entitled to reach and I have seen no evidence of fault in the way the Council considered the matter.

Tree protection order application

36. Mr C contacted the Council in January 2021 to seek a tree preservation order (TPO) on trees at the edge of the application site.
37. The Council decided not to make a TPO on the trees in early February and advised Mr C accordingly. The Council explained it accepted the worth of the woodland and that it met the requirements for a TPO. However, the Council noted it was currently considering the submission of details to discharge the conditions relating to a tree protection plan and Arboricultural Method Statement and if these were acceptable the trees would be protected in accordance with the relevant British Standard. Any departure from these requirements would be a matter for the Council’s Planning Enforcement team. The Council also noted the trees were off site, under good arboricultural management by the landowner and that they would be protected during the construction phase so it did not consider it was necessary or justifiable to make a TPO. The Council also provided its comments on Mr C’s concerns about potential future conflict between the new residents and the trees at the woodland edge.
38. This was a decision the Council was entitled to reach and I have seen no evidence of fault in the way the Council considered the matter.

Reports of planning control breaches

39. Mr C contacted the Council in April to report the developer had breached the planning condition by not providing arboricultural supervision for the erection of tree protective fencing around the site.
40. The Council’s Landscape Officer and Planning Enforcement Officer visited the site in April to inspect the protective fencing. The Council found this to be generally compliant but requested the developer make some specific adjustments.
41. The Council’s Head of Planning and Landscape Officer completed a further site inspection with the developer in May.
42. The Council’s Landscape Officer visited the site in July to inspect excavation work in the northern corner of the site where protective fencing had been removed. It was noted that no excavation appeared to have taken place in the root protection area (RPA) and the officer was satisfied there was no harm to the tree roots. The officer instructed the developer to carefully remove some excavated material from within the RPA and replace the fence to specification.
43. Mr C contacted the Council about water run-off from the site and a chemical toilet in early July. The developer provided an interim storm water run-off control system shortly afterward pending the permanent solution as approved. There were no further reports of significant run-off until November.
44. The Council’s Landscape Officer visited the site in September to inspect the tree protection and a chemical toilet at the site entrance. The developer agreed to move the toilet to a safer location away from the RPA to avoid possible ground contamination and carefully remove a temporary stone covering at the entrance when the area was reinstated.
45. The Council’s Head of Planning visited the site in early November after reported repeated issues of run-off. The Council has provided photographs from this site visit and provided an update by email to Mr C. The Council explained the developer had confirmed soakaways to certain plots were in place and these had been inspected by the National House Building Council (NHBC). These were not yet connected to the roof gutters but would be once the properties were roofed. Additional soakaways were to be provided once the utility operator had diverted a main cable across the site which was due to take place at the end of the month. It was also noted that during the highway works on site, the developer had bunded the lowest part of the site to hold back rainwater and this area would have a large highway soakaway.
46. Councils have no duty to monitor development. They are dependent on members of the public, harmed by unauthorised development, complaining to them about it. They then have a duty to investigate.
47. Based on the evidence provided I am satisfied the Council responded to Mr C’s reports in a timely manner and took appropriate action.

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Final decision

48. I have completed my investigation as I have found no fault by the Council.

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Investigator's decision on behalf of the Ombudsman