Summary: Mrs X complained about the Council’s decision to approve a planning application which she believes will damage trees on and near her land. There was no fault in the way the Council made its planning decision.

The complaint

1. Mrs X complained about the Council’s decision to approve a planning application, which she believes will damage trees on and near her property.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. If we are satisfied with an organisation’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

4. I read the complaint and discussed it with Mrs 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.
5. I gave Mrs X and the Council an opportunity to comment on a draft of this decision.

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What I found

Planning law and guidance

6. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
7. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
8. Planning considerations do not include things like:
• views from a property;
• the impact of development on property value; and
• private rights and interests in land.
9. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Tree Protection

10. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
11. 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 6 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.
12. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
13. Trees in Conservation Areas are protected by regulations. An individual who intends to remove or carry out work on trees in Conservation Areas need to give prior notification to the Council, so it may decide whether to protect the tree.

What happened

14. The Council received a planning application proposing development on land next to Mrs X’s home.
15. The Council’s planning case officer wrote a report which included:
• a description of the proposal and site;
• a summary of relevant planning history;
• comments from neighbours and other consultees;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on character and appearance, living conditions/amenities, and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
16. Mrs X had objected because she was concerned about the impact the development would have on trees. The Council’s tree officer responded to a consultation request, and said they had no comment to make.
17. The case officer’s report said the proposal was close to a large tree, which was proposed to be retained. It also referred to the Heritage Statement (in the Design and Access Statement submitted by the applicant’s agent) which said that, given the separation distance, no impacts on trees were anticipated.
18. The trees in question are near the property boundary. The largest tree is on the application site and smaller trees are on Mrs X’s property. The site is in a Conservation Area. The trees are not protected by TPO or planning condition. In response to Mrs X’s complaint about what happened, the Council said in its view the trees were of little public amenity value.
19. After the planning decision was made, Mrs X sought advice from two independent tree specialists. She said both told her the tree will be affected and the larger tree is likely to die if its roots are damaged by building works when foundations are built.

My findings

20. We are not a planning appeal body and so cannot evaluate the planning considerations and offer a view on what planning decision should have been made. Our role is to review the process by which planning decisions are made and look for evidence of fault that causes a significant injustice to the individual complainant.
21. Before a planning decision was made, the Council took account of:
• the application plans and associated documents;
• comments from the public and other consultees;
• relevant policy; and
• the case officer’s report and recommendation.
22. This is the decision-making process we expect and so I find no fault.
23. It would have been helpful if the tree officer had included more information to explain their judgement, there is enough to show they had no concerns and required no new information. As there was no comment or evidence to challenge the applicant’s assertion that trees would be retained and not damaged, the Council was entitled to reach the view it has.

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Final decision

24. I completed my investigation as there was no evidence of fault in the way the Council made its planning decision.

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Investigator's decision on behalf of the Ombudsman