Summary: We will not investigate Mr X’s complaint about the Council’s planning report and committee’s decision to grant permission for his neighbour’s development. There is not enough evidence of fault in the planning processes to warrant us investigating. Even if there had been fault, we would not investigate because Mr X’s claimed injustice of potential damage to his tree would be a private civil matter between him and his neighbour. We also cannot achieve the outcome Mr X wants from his complaint.

The complaint

1. Mr X lives next door to a property whose owner received planning permission. He complains the Council:
1. failed to determine the planning application in line with its Development Plans, as required by the Planning and Compulsory Purchase Act 2004;
2. improperly gave planning permission for his neighbour to dig foundations for the development within one metre of a tree on Mr X’s property.
2. Mr X says his neighbour’s works will undermine his tree, resulting it being a danger to him and his family. He wants the Council to amend the planning permission to remove the part of the development requiring works near his tree.

Back to top

The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• we cannot achieve the outcome someone wants.

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

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

How I considered this complaint

5. I considered information from Mr X, relevant online planning documents, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We cannot replace a council’s properly made decision with our or another party’s position. We may only go behind a council’s decision where there is evidence of fault in the process it has followed to make its decision and, but for that fault, a different outcome would have been reached.
7. Mr X says the Council did not determine the planning application in accordance with the relevant local plans, which misled the planning committee members. He says the officer’s planning report to the committee which granted the permission does not include information showing the policies and plans were not followed. The Council officer’s planning report refers to the relevant plans and policies then goes on to give its view on how the permission complies.
8. The Council’s planning report considered Mr X’s concern about his tree. It took the view that the tree did not warrant planning protection, such as through a Tree Preservation Order (TPO). A council would only consider the protection of a privately-owned tree in response to a planning application if the tree was an exceptional species or one which made a contribution to the local area or street scene, and so warranted such protection. But that is a discretionary decision for each council to make on the facts and merits of each case.
9. I realise Mr X disagrees with the recommendation and views of the report regarding the tree, and the application’s compliance with local plans and policies. But it is not fault for a council to properly produce a planning report or make a decision with which someone disagrees. There is not enough evidence of fault in the Council’s planning processes here to warrant us investigating.
10. In any event, it was for the planning committee’s Members to decide the planning application, not the Council’s officers. All information from the application, including Mr X’s objections, was available to them. They also had the benefit of a site visit. If Members considered there were grounds for them to refuse the application, they could have voted against it, or asked for an adjournment to get more information to respond to any outstanding concerns. Members were entitled to vote and make their decision as they ultimately chose to.
11. Even if there has been fault in the Council’s planning process, we will not investigate. Mr X’s claimed injustice is that part of the neighbour’s development will damage his tree, making it a danger to him and his family. The planning process only deals with planning issues, not private property matters. A permission does not give its recipient consent to damage others’ private property. If Mr X believes his neighbour does building work which damages his tree, that is a private civil property damage matter between him and his neighbour. It would be for Mr X to seek any redress directly with his neighbour and through the courts if required.
12. As the outcome to his complaint, Mr X wants the Council to remove the granted permission for the part of the development which he believes will damage his tree. To make that change, the Council would need to revoke and reissue the permission. We cannot order councils to revoke granted planning permissions. That we cannot achieve the complaint outcome Mr X wants is another reason why we will not investigate the matter.

Back to top

Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the planning processes to warrant us investigating; and
• even if there had been fault, we would not investigate because Mr X’s claimed injustice would be a private civil matter between him and his neighbour; and
• we cannot achieve the outcome he wants from his complaint.

Back to top

Investigator's decision on behalf of the Ombudsman