Summary: Mr and Mrs B complain the Council did not properly consider the impact on their privacy from a neighbouring development. They say the Council did not notify them of several applications and has not acted on their neighbours cutting down trees that provided screening. Mr and Mrs B say this caused a significant impact on their amenity, including loss of privacy. The Ombudsman does not find fault in how the Council considered the planning application. However, we find fault in the Council’s procedures on notification and recommend the Council review its policy.

The complaint

1. The complainants, who I refer to as Mr and Mrs B, complain the Council has not properly responded to their concerns about a neighbouring development. They say the Council did not act against the neighbour for cutting down trees that were on their land. They say the Council granted permission for cutting down trees without properly checking the land boundary. They also complain the Council approved an application to regularise breaches of planning control without properly considering the impact on their amenity. Mr and Mrs B say the development has significantly impacted their privacy and led to horse paddocks at the end of their garden becoming unusable. They say the Council did not notify them of several applications and did not follow proper planning procedures.
2. Mr and Mrs B complain the Council wrongly charged them for a application for listed building consent and has not refunded the admin fee.

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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)

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How I considered this complaint

6. I considered the information Mr and Mrs B provided and spoke to them about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr and Mrs B and the Council for their comments before making a final decision.

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What I found

Law, Guidance and Local Policies

7. 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.
8. Planning permission is usually required to change a use from one class to another. Whether a change of use has occurred is a matter of ‘fact and degree’ for the Council to decide.
9. Parliament has given a blanket planning permission (‘permitted development’) for many minor works. Subject to the specific nature of the works, local planning authorities have no control over these matters.
10. Councils are required to publicise planning applications. The publicity required depends on the nature of the development and the council’s own policies. This is usually set out in a councils “Statement of Community Involvement”. In all cases the application must be published on the council’s website.
11. 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.
12. Council officers and planning committees are not obliged to carry out site visits before deciding on a planning application. Officers and members will often already have local knowledge of an area and be able to identify the impact of a proposed development using ariel photographs and other tools such as Google Streetview.
13. Councils should require an applicant to describe the significance of any heritage assets affected, including any contribution made by their setting. The level of detail should be proportionate to the assets’ importance and no more than is sufficient to understand the potential impact of the proposal on their significance. As a minimum the relevant historic environment record should have been consulted and the heritage assets assessed using appropriate expertise where necessary. (National Planning Policy Framework July 2021, paragraph 194)
14. In this case, the Council’s validation list says developers should submit a ‘heritage statement’ where the proposed development is likely to affect heritage assets or their settings.
15. Councils may approve applications, subject to a planning condition requiring the applicant to enter into a separate legal agreement. Council powers and appeal rights relating to these agreements are found in the Town and Country Planning Act 1990. The agreements are usually referred to as ‘section 106’ agreements. The agreements are in the form of a deed, which is a form of contract that is legally binding on the parties that sign it. They may be enforced in the county court.
16. 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.
17. 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.
18. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework July 2021, paragraph 59)
19. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.
20. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority.
21. Trees in a conservation area that are not protected by TPO are protected by the provisions in section 211 of the Town and Country Planning Act 1990. These provisions require people to notify the local planning authority, using a ‘section 211 notice’, 6 weeks before carrying out certain work on such trees, unless an exception applies. The work may go ahead before the end of the 6-week period if the local planning authority gives consent. This notice period gives the authority an opportunity to consider whether to make a TPO on the tree.
22. A section 211 notice does not need to be publicised. Hower, the authority can consider publishing a section 211 notice to seek the views of local residents where there is likely to be a public interest.

Background

23. Mr and Mrs B live in a Grade II listed house in a conservation area. Attached to the property, at the bottom of the garden, is an area of land and paddock for horses. The Council considers this section of the land is classed as agricultural, whereas the house and garden are residential. Mr and Mrs B say this land is part of their residential property and the Council is wrong to class it as agricultural.
24. Mr and Mrs B keep a horse in the paddock. Mrs B says that caring for and riding the horse is a key part of her enjoyment of the land and is important for her mental health.
25. The property is adjacent to a new housing estate. When the new estate was built the Council made a s106 agreement, which included a condition that no structure with a height of more than 600mm should be built on visibility splay land.
26. Previously there were trees and hedges on the boundary between one of the houses on the new estate and the paddock, which screened its garden from view. A small watercourse also runs between the estate and the paddock. Mr and Mrs B say the trees and hedges were within the boundary of their land.
27. Mr and Mrs B say that in 2019, the owner of the adjacent house asked permission to trim the hedges, on the neighbour’s side. They agreed but asked the neighbour to leave the trees alone. The next day they found the neighbour had cut down three quarters of the trees to stumps.
28. In September 2019, the neighbour served a section 211 notice on the Council, for reducing the height of the last remaining trees. The Council considered the notice and decided not to make any TPOs. It did not publicise the notice.
29. In November 2019 the neighbour applied for planning permission to build a shed and a 1.8 metre high fence on the neighbour’s land, on the boundary between their garden and the agricultural part of that garden. The Council placed an advert and put up a site notice but did not write to Mr and Mrs B directly. The Council says this is because the only land adjoining the neighbour’s property is the agricultural land, not the residential part of Mr and Mrs B’s property. Mr and Mrs B say they do not see any site notices in the cul-de-sac of the new estate, so were unaware of the application. The Council approved the application.
30. The neighbour built the shed, but this was larger than the approved size. The fence was in a different location to that on the plan. The neighbour also started to run a business from the shed.
31. In May 2020 Mr and Mrs B noticed lorries dumping waste material, which raised the height of the garden. They contacted the Council, which opened an enforcement investigation.
32. An officer visited the site. In July 2020 the officer wrote to Mr and Mrs B to confirm they had found several breaches of planning consent. The officer said the breaches included the change of ground levels, larger shed and destruction of hedging and trees forming the boundary. The officer asked the neighbour to stop work and make a new planning application.
33. The neighbour submitted a new application. At first the Council registered this as a householder application. However, due to the nature of the works it updated this to a full application. The Council did not directly notify Mr and Mrs B of the application, but they provided comments.
34. The planning officer’s report commented on objections Mr and Mrs B raised about the impact on their amenity. The report found the development did not impact on their residential amenity, including privacy. It made the distinction between the residential part of their property and the agricultural, paddock land. It said the residential house and garden were set back from the boundary with the development, and there was no significant overlooking to the residential garden.
35. The report also commented on the use of the shed for a business. It said the business was ancillary and did not amount to a change of use that needed planning permission.
36. The report had a section for ‘works to trees, hedges and other vegetation’. It said the fence was not more than two metres high so would be allowed under permitted development rights. It did not comment on the removal of trees or hedges from the boundary.
37. In October 2020 Mr and Mrs B made a formal complaint about the Council’s handling of the issue. They said the height of the land means their entire rear garden and paddocks now lack any privacy. They raised concerns about not being notified of the applications and the Council not properly considering the impact of the development. They said permitted development rights had been removed by condition when planning permission was granted for the new estate.
38. An officer from the Council visited the site in November 2020 and took photographs. These photographs were shared with the planning committee at its meeting, which took place in early December 2020. The committee decided to approve planning permission.
39. Following approval, the Council closed its enforcement investigation. It informed Mr and Mrs B that there was no further action for it to take as the breaches it had originally identified now had planning permission.
40. The Council responded to Mr and Mrs B’s complaint in February 2021. It accepted the Council should have directly notified Mr and Mrs B of the planning applications and said it had instructed staff to do so going forward. It said the planning officer had dealt with the issue of restrictions on permitted development rights clumsily, but previous restrictions did not mean no development was allowed. It said it would arrange for an officer to check the works to the trees. However, any question of whether the owner carried out work to trees on Mr and Mrs B’s property was a civil matter.
41. Mr and Mrs B were not satisfied with the Council’s response and made a second stage complaint in March 2021. The Council upheld its initial decision. It said it acknowledged the outlook from Mr and Mrs B’s property had changed but given the distances involved, it did not consider the impact on their privacy was significant enough to warrant the refusal of the application.
42. Mr and Mrs B say the Council has not properly considered their concerns and the impact on them. They have had to return two rescue ponies and can no longer effectively use the land around the paddocks to exercise their horse. Mr and Mrs B say their neighbours now look down on the paddock and their back garden and rear of their property from a height. The land rises above the neighbours’ fence and their neighbours’ dog often barks at and chases their horse from along the ridge line. This frightens the horse, which is dangerous and could lead to injury.
43. In 2021 Mr and Mrs B applied for listed building consent for works to their own property. They applied through the planning portal. They were not able to submit the application without paying the full planning application fee, which should not be charged for listed building consent. Mr and Mrs B contacted the Council who refunded the application fee. However, the Council did not refund the administration fee of £25. The Council said Mr and Mrs B would need to request a refund from the planning portal directly. The Council says it does not have control over the admin fee.

Findings

44. I have separated my findings into the following separate areas of the complaint:
• Trees on the boundary
• Notification of planning applications
• The retrospective planning application
• Listed building consent fee

Trees on the boundary

45. The neighbour needed to serve a s211 notice on the Council before it cut down any trees in the conservation area. This is the case regardless of whose property the trees were located on. It was not a planning application and ownership of land was not specifically relevant to the notice or the Council’s decision. The Council only needed to decide whether to protect the trees with a TPO. Any issues about the ownership of land in this case are a civil matter.
46. The neighbour served a s211 notice and the Council decided not to make any TPOs. However, Mr and Mrs B say this was only for a small number of the trees. Mr and Mrs B say the neighbour cut down three quarters of the trees before serving a s211 notice.
47. Cutting down the trees was not a breach of planning control. It is specific area of law relating to trees, as outlined at Paragraphs 20 to 22. The Council has powers to serve a tree replacement notice where someone has cut down a tree in contravention of s211. This power is against the owner of the land.
48. The Council could have investigated further whether trees were wrongly cut down without a s211 notice having been served. However, Mr and Mrs B say the trees were on their land. If that is the case, the Council would only have the power to enforce against them, not the neighbour. Therefore, I do not consider it would be productive to recommend the Council investigate this further.
49. Any question of whether the neighbour cut down trees that were on Mr and Mrs B’s land is a civil matter between Mr and Mrs B and the neighbour. I understand Mr and Mrs B are pursuing civil action on this matter.

Notification of planning applications

50. I find fault in the Council’s procedures for notification of planning applications.
51. The Council’s complaint response upheld this part of Mr and Mrs B’s complaint. It said its statement of inclusion said it should notify all adjoining neighbours and in this case it had not done so. It said it had reminded staff to do so in future. However, in the Council’s response to my enquiries it says it did consult and advertise correctly in line with the law. It repeated that it did not consult in this case because the land that adjoined the neighbour’s property was agricultural and not part of the residential curtilage. So, there is inconsistency in the Council’s responses on this point.
52. The law says councils must publicise applications by direct notice to any adjoining owner or occupier. I cannot find any law or guidance that says this only includes residential land. The Council has not explained why it would not directly notify the owner of land that is not classed as residential.
53. It is for the Council to set its own procedures based on its understanding of the law. However, given the inconsistency in its responses, it is not clear what approach it will adopt going forward or on what understanding of the legislation. I therefore recommend the Council review and update its statement of inclusion and any other planning procedures on notification, to make it clear whether it will directly notify owners of adjoining land that is non-residential, including where, as in this case, the land is agricultural but connected to a residential property. The Council should set out the basis on which it considers this procedure complies with its statutory requirements.
54. I understand it caused some distress to Mr and Mrs B not to receive direct notification. However, their main concerns are about the retrospective application. They did comment on the retrospective application and those comments were taken into account. Therefore, I do not find this caused a significant injustice to Mr and Mrs B.

The retrospective planning application

55. Mr and Mrs B say the retrospective application was not valid as it did not follow proper planning procedures. They say the Council listed the wrong date and allowed the neighbour to make two retrospective applications when they were only allowed to make one.
56. I do not find fault on this point. There is no formal limit of one retrospective application. The Council invited the neighbour to make an application. If it had refused the application, it would have considered whether it was expedient to take enforcement action. It would not have reconsidered another application based on the same facts.
57. In this case, the Council opened the case as a householder application, then changed it to a full application, which meant opening a new case. That meant it recorded a different date. It does not mean the application was invalid. The Council only considered and made a decision based on the facts of the retrospective application once.
58. Mr and Mrs B say the Council should also have asked for a heritage statement as required by its validation list.
59. The Council says it would not normally require a heritage statement for this type of application. This is because the work was very minor and did not lead to the loss of any historic buildings. It says it was close to a listed building site, but the historical curtilage fell well short of the boundary.
60. I note the Council was not actually referring to the retrospective application. It said it assumed I was talking about the original application for the works. However, that application was less impactful, as it did not include a significant change in the land levels. I meant the retrospective application, as set out in my question. Therefore, when the Council says it was a very minor development, it is not clear if it considers the same is true of the retrospective application.
61. However, on balance, I do not find fault. It is for the Council to judge where it considers a development is likely to affect a heritage asset or its setting. The Council has set out clearly that it considers the listed building is set well back from the boundary of the development. It’s planning report reiterates that it does not consider there is a significant impact on the listed building, for this reason.
62. I understand Mr and Mrs B consider the Council should have had access to a statement that set out in more detail the historical significance of the building. However, the Council’s policy only says there must be enough information to make a proper desk-based assessment. The officer and committee were aware of the listed building and its historical boundaries and made a decision with that knowledge. The key point the Council made was that the distance between the building and development meant there was not significant harm. Therefore, it is unlikely any further information about the history of the building itself would have changed the Council’s decision. The Council made an informed judgement, and I cannot question the merits of that decision.
63. The committee report shows the Council considered Mr and Mrs B’s objections and the impact of the development on their privacy. It accepted there was some impact on privacy to the house and garden but did not consider this was unacceptable, due to how far it was set away from the boundary. It did not consider the loss of privacy to the paddocks was relevant to residential amenity.
64. I understand how distressing it is to Mr and Mrs B that the neighbour’s can see directly into the paddock and that their dog frightens the horse. I also understand this has a significant impact on their enjoyment of the land, which is important for Mrs B’s mental health. However, I cannot find any guidance that suggests the Council must consider the impact on privacy to land classed as agricultural, even if it is connected to a residential home. Also, whether the neighbour has a domestic pet, and the conduct of the owner or animal, is not a material planning consideration. Again, I cannot question the merits of the Council’s decision.
65. Dogs barking can amount to a statutory nuisance. Mr and Mrs B could ask the Council to investigate this issue specifically. I cannot say whether the Council is likely to find a statutory nuisance, as nuisance is generally about the noise impact on residents. That would be for the Council to determine. Mr and Mrs B could also seek their own legal advice on this issue. There is no fault in the Council not considering this as part of its response to Mr and Mrs B’s complaint about the planning application.
66. Mr and Mrs B also raised concerns about changes to the banks of the watercourse. They say that past planning conditions protected the watercourse banks. Any conditions on past planning applications applied to those applications. The retrospective application did not make any conditions about the watercourse. I cannot say it was fault for the Council not to make any such conditions.
67. If the neighbour’s work encroached onto Mr and Mrs B’s land this is a civil matter between them. Often changes to a watercourse need consent from the local drainage authority. In this case that is the county council. If Mr and Mrs B are concerned the neighbours altered a watercourse without consent and this has caused damage, it is open to them to raise this with the county council. There is information available about these matters on their website. However, it is not relevant to the planning application.
68. Mr and Mrs B also raised concerns about the 1.8 metre fence on the boundary. They say previous planning obligations removed permitted development rights for structures over 600 metres. I have looked at the s106 agreement and can see this only applied to visibility splay land, which would be at the front of the property. It was intended to ensure visibility for vehicles. It is not relevant to the fence built at the rear of the property. However, one previous application does appear to remove permitted development rights for the property. This may have been something the Council should have picked up on during the application. However, that would not invalidate the entire application and I cannot find it caused a significant injustice to Mr and Mrs B. Their main concern is about the impact on their privacy from the raised land. The fence does not cause a loss of privacy to Mr and Mrs B. It is very unlikely the Council would have found it blocked light to their property or was overbearing. Therefore, is very unlikely the Council would have considered this was unacceptable in planning terms, regardless of whether permitted development rights were present. Even if it did, the Council would likely have made it clear this needed to change, before it approved the rest of the application.
69. Overall, the committee report clearly sets out how the Council considered the impact on Mr and Mrs B, their objections and the reasons for why they considered the development did not impact on them in an unacceptable way. I understand Mr and Mrs B disagree with this decision, but it I cannot find fault in the way the decision was made.

Listed building consent fee

70. I do not find fault on this issue. The Council refunded the application fee. The administration fee was charged by the planning portal, and this is the body Mr and Mrs B would need to complain to for a refund. The planning portal is not in our jurisdiction so I cannot investigate whether it should have refunded the fee.

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Agreed action

71. The Council has agreed to, within a month of this decision:
• Apologise to Mr and Mrs B for the fault in its procedures on neighbour notification.
72. It has also agreed to, within three months of this decision:
• Review its statutory requirements and update its statement of inclusion, and any other policies on neighbour notification, to make it clear whether, in future, it will directly notify owners of non-residential, adjoining land of planning applications, including where that land is connected to a residential property.

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Final decision

73. The Council is not at fault in how it considered the retrospective planning application. However, it is at fault in its procedures for notification of planning applications.

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Investigator's decision on behalf of the Ombudsman