Summary: Mr X complained the Council failed to protect his amenity when it approved a planning application to change the use of land near his home. Mr X said the loss of trees that followed planning approval reduced privacy in his home and garden. We did not investigate further as we were unlikely to find fault, provide a remedy or any other meaningful outcome.

The complaint

1. Mr X complained the Council failed to protect his amenity when it approved a planning application to allow the change of use of a building behind his home.
2. Mr X said the Council should not have accepted the applicant’s assurance that no trees would be removed. Trees were not protected by the Council and were removed after approval was granted. Mr X said the loss of trees means that he and other residents now have less privacy in their homes and gardens.

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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
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

4. I read the complaint and discussed it with Mr 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 Mr 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. Conditions may be used to require planting or to retain trees or hedges.
10. Planning uses of land or ‘use classes’ are set out in regulations. They cover a range of typical uses, like residential, business, industrial and commercial. Some uses do not fit within the use classes and planners refer to these as ‘sui generis’ uses, which means a use that is ‘of its own kind’ or ‘unique’.
11. 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.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is sometimes found in the local plan itself or issued in separate supplementary planning documents.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account their policy along with other material planning considerations.
14. Amongst other things, guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. Although guidance can set different limits, councils normally allow 21 metres between directly facing habitable rooms (such as bedrooms, living and dining rooms) or 12 metres between habitable rooms and blank elevations or elevations that contain only non-habitable room windows (such as bathrooms, kitchens and utility rooms). An ‘elevation’ is the face or view of it from one side shown in a plan.

Tree Preservation Orders

16. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. Whether to impose an order is a matter for the Council’s discretion. TPO’s may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
17. 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 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.

What happened

18. The building behind Mr X’s home was within the C2 residential institution class. The owners applied for permission to change that use to a different residential use class, a C3 dwelling house. The distances between the building and the houses behind it range from between 23 to 38 metres. On the site, there was a line of mature trees along the boundary.
19. Before a decision was made, the Council’s planning case officer wrote a report to advise the planning committee about the main planning considerations. The report included:
• a description of the proposal and site;
• comments from neighbours, including concerns that trees would be lost;
• comments from other consultees;
• details of relevant planning policy and guidance;
• an appraisal of the main planning considerations, including impact on amenity and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
20. The case officer report said that the proposal would not result in loss of trees and existing landscaping would remain. The case officer went on to point out that none of the trees on the site were protected, so could be removed without permission.
21. The minutes of the meeting show that the concern about tree loss was considered and discussed by Members.
22. The application was approved by the Council’s planning committee.
23. Later, the landowner removed trees on the boundary, causing some residents to complain to the Council. Mr X said the Council had failed to consider the impact the trees had in protecting their amenity, especially privacy.
24. The Council responded to say that the applicants had said the trees would be retained, and so the report did not go on to consider whether it was necessary to protect the trees. However, the report did say the trees could be removed at any time, and despite this the Council approved the application without requiring further controls to protect the trees.

My findings

25. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.
26. Before we begin or continue our investigations, we consider two, linked questions, which are:
• Is it likely there was fault?
• Is it likely any fault caused a significant injustice?
27. If at any point during our involvement with a complaint, we are satisfied the answer to either question is no, we may decide:
• not to investigate; or
• to end an investigation we have already started.
28. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
29. I should not investigate this complaint further, and my reasons are as follows:
• Before it made its decision, the Council considered the application, comments from neighbours and other consultees, relevant planning policy, and the recommendations of the case officer. This is the decision-making process we would expect, and so further investigation is unlikely to find evidence of fault.
• The Council was aware of the trees and the objection about their potential loss. It had the power to require retention of the trees, either through a planning condition or by imposing a TPO, but did not do this. We are an appeal body, and cannot comment on a judgement made by a planning authority in the absence of fault in the decision-making process. Whether to impose planning controls is a matter of discretion for the Council.
• There are significant separation distances between the building and existing dwellings. Even if there was evidence of fault in the decision-making process, we cannot say residents should be entitled to more space than is usually considered acceptable.

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Final decision

30. I ended my investigation as it was unlikely to result in a finding of fault, a remedy or different outcome.

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Investigator's decision on behalf of the Ombudsman