Summary: Mr X and his neighbours complained the Council is at fault in how it considered a planning application for a development near their homes. We have found some fault by the Council. However, we do not consider this altered the outcome of the application or that it has caused an injustice to Mr X and his neighbours. We did not find evidence of fault in how it applied its Unacceptable Behaviour Policy to Mr X.

The complaint

1. Mr X and his neighbours complained the Council is at fault in how it considered a planning application for a development near their homes. They state the Council failed to:
• notice the approved site layout plan excluded hedgerow along the northern boundary of the site;
• retain the hedgerow despite saying it would do so to residents and the Planning Committee. This is deception by the Council.
• recognise the entrance to the site is not suitable;
• recognise the road leading to the site entrance (Road Y) is not suitable for construction traffic;
• identify that an apartment block is not compatible with existing dwellings in the surrounding area;
• reply to communications satisfactorily and;
• correctly apply its Unacceptable Behaviour Policy to Mr X.
2. Mr X and his neighbours state the Council’s actions have resulted in development that is unacceptable. It has also caused them frustration, uncertainty and put them to avoidable time and trouble in pursuing this matter.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. As part of my investigation I have:
• discussed the complaint with Mr X and considered information he provided;
• made enquiries of the Council and considered its response;
• considered documents on the application file, the relevant legislation, guidance and Council policies; and
• set out my initial thought on the complaint in a draft decision statement and I considered comments received from Mr X.

What I found

Planning Permission

7. Councils should approve planning applications that accord with policies in the local development plan unless other material planning considerations indicate they should not.

Planning considerations include things like:

• Access to the highway;
• Protection of ecological and heritage assets; and
• The impact on neighbouring amenity.

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.

Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, precise, enforceable and reasonable in all other regards.

Decision making

8. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
9. Councils delegate most planning decisions to their officers. However, some types of decisions are made by the Council’s Planning Committee.

Enforcement

10. 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.
11. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. 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.

The Council’s Unacceptable Behaviour Policy

12. The policy says the Council considers vexatious or persistent behavior to be when a person:
• makes repeated complaints that are without sufficient grounds;
• persistently writes letters or emails; or
• has an unreasonable frequency of contact with it.
13. It says the Council will investigate reports of vexatious or persistent behaviour considering the facts of each case. It states that it will:
• tell the perpetrator in writing (unless an alternative means of communications is required)
• ask them to change their behaviour.
• act to restrict the individuals contact with council staff if the unacceptable behaviour continues.
14. It states decisions to apply the policy will made by the Assistant Director of the relevant service. It will restrict contact appropriately to the behaviour of person involved. Restrictions will last for six months but can be for longer. The decision to apply the policy can be challenged by using the Council’s complaints process.

What happened

15. This chronology includes the key events in this case. It does not cover everything that has happened.
16. Mr X and his neighbours live in or near Road Y. The road is made up of detached and semi-detached two storey houses. Part of Road Y is unadopted and maintained by residents.
17. In 2020 the Council received a planning application for agricultural land on Road Y. The application sought planning permission for 17 homes, including an apartment block.
18. Mr X and his neighbours objected to the proposal. Their objections included:
• Road Y is not suitable to access the site;
• Road Y is not suitable for construction traffic;
• the proposed apartment block is not compatible with existing development in Road Y; and
• the proposal will be harmful to the amenity of the surrounding area.
19. In late 2020 the Council’s Development Committee considered the application. It delayed deciding the application to give the applicant time to address issues of concern. These included the height of proposed buildings and access onto the unadopted section of Road Y.
20. In spring 2021 the applicant provided new plans and documents addressing the concerns of the Development Committee.
21. The documents submitted by the applicant and of relevance to this complaint are:
• Site layout plan: This shows hedgerow along the boundary will be kept. It does not show the hedgerow extending south into the application site. It shows two protected trees to be outside the site boundary.
• Plan 210.00: This shows what the development will look like from Road Y. It shows vegetation on the boundary, but not the hedgerow.
• The Planning Statement: This states the hedgerow along the site’s northern boundary will be kept. It said an arboricultural survey found the hedgerow is an ‘important hedgerow’ in line with the Hedgerows Regulations 1997. A small section of low-quality hedge will be removed for access to the site.
• The Design and Access Statement: This states the hedgerow will provide natural screening along the boundary and will soften the appearance of the development from Road Y. It states there is the potential to keep and enhance the existing vegetation along the boundary with Road Y. It also says the hedgerow will be kept. It includes a plan showing hedgerow along the boundary of the site but not extending south into the application site.
• Topographical Survey: This shows the hard and soft features of the site. It shows the hedgerow along the boundary and extending south into the site.
• Tree Report: This states the hedgerow is a Blackthorn hedgerow and suggests it is managed to prevent it spreading and suggests removal or part removal of the hedgerow.
22. The case officer report for the application said:
• The northern aspect of the site features a hedgerow which forms the physical boundary of the site. Two protected trees are near the boundary but are outside the application site.
• Entry to the site is by gated access along Road Y, along which a mature mixed species hedgerow provides an established boundary.
• The hedgerow on the northern boundary will be kept. The hedgerow extends south from the boundary line and subject to acceptable management, will provide visual screening to the site.
• The hedgerow will, except for the access to the site, be kept. There will be no significant loss of trees or vegetation.
• The right to access the site along Road Y is not a judgement for the local authority to make.
• A Construction Management Plan will address the impact of construction traffic along Road Y, while the development is built.
• No highways safety issues were raised about access to the site from Road Y.
• The apartment block will be 2.5 storeys high and set back from the boundary of the site. There will be green space in front of the apartment block and new hedgerow planting. The apartment block will not be detrimental to the amenity of homes near the site.

The report recommended the application be granted planning permission.

23. In spring 2022 the Development Committee approved the application subject to conditions including:
• Soft and hard landscaping be implemented in accordance with the approved plans. Any tree, shrub or hedge plant removed will be replaced.
• Construction works must be carried out clear of Road Y.
24. After the decision, Mr X contacted the Council seeking reassurance the hedgerow would be kept. The case officer replied saying any removal of vegetation should be kept to a minimum, but a degree of flexibility will be needed. He said the reasons for any removal would be considered at the time.
25. Mr X asked for a meeting with the Council and the developer at the site. He did not receive a response from the Council.
26. In September officers visited the site. Mr X and other residents spoke with officers during the visit. Following the visit, the Council wrote to Mr X confirming the hedgerow was intact and that it would be kept.
27. In October the developer began to remove hedgerow to the south of the northern boundary and on the eastern side of the boundary.
28. Council officers met with Mr X at the site to discuss his concerns about this. It said the hedgerow was always going to be thinned to allow the development to be built. It said the trunks from the hedgerow on the eastern side of the boundary were in the area approved for development and so were removed. This was discovered once works began.
29. The site meeting also found there was a plotting error on the site layout plans and two protected trees were within the site. There were no other errors on the approved plans. The Council asked the developer to submit a revised planning application to address the error.
30. In October 2023 the Council wrote to Mr X saying it had applied its Unacceptable Behaviour Policy to him because his contact with officers was excessive.
31. Mr X appealed against the decision to apply the policy to him. In December the Council told him it was upholding its decision to apply the policy.
32. In January 2024 the Council approved the revised planning application. It included a condition requiring future maintenance of the hedgerow.

Mr X’s complaint

33. Mr X complained to the Council between September 2022 and January 2023. The issues he complained about remained substantively the same throughout all three stages of the Council’s complaints process.
34. Mr X was unhappy with the Council’s response to his complaints and complained to the Ombudsman. His complaint reiterated the grounds of complaint he made to the Council. He complained the Council:
• failed to notice the approved plans did not include the hedgerow which other planning documents said would be kept.
• said the hedgerow would be kept despite it not being on the approved plans. Therefore, it deceived residents and the Development Committee.
• failed to recognise Road Y is unsuitable to use as an entrance to the site and for construction traffic.
• should not have granted permission for the apartment block as this is not compatible with development in Road Y.
• did not reply to correspondence about the development or give full responses to the issues raised.
• wrongly applied its Unaccepatable Behaviour Policy to him.
35. The Council’s response to our enquiries reiterated its responses to Mr X’s earlier complaints. It said:
• The approved site layout plan does include the hedgerow along the northern boundary of the site. The plans show the hedgerow with a reduced depth compared to the topographical survey, but it was always the case the depth of the hedgerow would be reduced.
• It said the Design and Access Statement, Tree Report and Case Officer report all support its view the hedgerow would be reduced in depth.
• Work to reduce the depth of the hedgerow found the trunks of the hedgerow on the eastern side extended into the area to be developed and so were removed. This created gaps in the hedgerow facing Road Y. New planting to increase the thinned hedgerow was agreed as part of the conditions for the approval and will help the health and ecological value of the hedgerow.
• Two protected trees were plotted incorrectly on the site layout plan. This has been addressed by the approval of a revised planning application showing the correct location of the trees. The approval also ensured the future maintenance and retention of the hedgerow.
• It has visited the site and it is satisfied buildings and parking bays are being built in accordance with the approved plans.
• it considered objections to the apartment block and the suitability of Road Y for accessing the site and construction traffic when it determined the application. It views on these matters are as set out in the case officer report.
• It has investigated residents reports the developer is breaching conditions preventing construction traffic blocking Road Y. It found there was evidence of this occurring, but it was caused by residents reducing the width of Road Y by putting large planters outside their homes preventing vehicles manoeuvring into the site.
• Mr X contacted council officers excessively and he sent one officer 126 emails in a 12-month period. It said there were some occasions when it did not reply to Mr X’s emails, however when officers did reply to Mr X’s emails, he would not accept their response and pose further questions. It considers his behaviour to be unacceptable and it used its Unacceptable Behaviour Policy so he could only contact the Council via the Corporate Services team.

Finding

36. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at how the Council made its decision. If we consider it made its decision correctly, we cannot question whether the decision was right or wrong, regardless of whether the complainant disagrees with the decision the Council made.

Apartment block

37. I have considered how the Council made its decision. The case officer report shows it considered if the apartment block would have an unacceptable impact on the amenity of the local area and homes near the development site. The Council had regard to the relevant matters when it considered this issue and so it made its decision correctly.

Suitability of Road Y to access the site

38. When considering a planning application, the Council can only consider material planning considerations. Concerns about the right to access Road Y because it is unadopted is not a material planning consideration. Therefore, the Council could consider this when makings its decision.
39. The Council considered the impact of construction traffic using Road Y. It found this would be acceptable with the use of a Construction Traffic Management Plan. It included a planning condition requiring this. I consider the Council had regard to the relevant matters and so, it made its decision correctly.
40. I note that concerns have been raised that construction vehicles have damaged the surface of Road Y. The Council has, as part of the Section 106 agreement, provided for the developer to pay for works to repair Road Y.
41. Mr X has provided details of reports made to the Council about construction traffic blocking Road Y. He has also provided photos showing this. The Council has investigated this matter as a breach of planning condition and found there is evidence of a breach. It is not taking enforcement action because the breach is being caused by residents restricting space for construction vehicles to manoeuvre. It is for the Council to decide if it is expedient to take enforcement action.
42. Concerns have also been raised about the entrance to the site being unsuitable. The Council consulted the County Council’s Highway department. It raised no concerns in response and so there were no grounds for the Council to refuse the application on this basis.

The hedgerow

43. Mr X says the Council is at fault because it failed to notice the submitted site layout plan excluded the hedgerow on the northern boundary of the site. I have considered the site layout plan. I am satisfied it shows the hedgerow along the boundary of the site. However, it does not show the hedgerow extending south of the boundary, as shown on the topographical survey.
44. The Council says it was always understood the hedgerow would be reduced in depth and so, the site layout plan is correct. Documents submitted as part of the application provide contradictory statements about retention of the hedgerow. Therefore, I do not consider the documents provide a decisive answer.
45. The case officer report for the application refers to keeping hedgerow on the northern boundary. However, it does not discuss if this included the full extent of the hedgerow as shown in the topographical survey or the reduced amount shown in the site layout plan.
46. For the above reasons I consider it is unclear if officers understood the hedgerow would be reduced in depth and what consideration, if any, was given to this matter.
47. Nevertheless, I do not consider the ambiguity surrounding the above matter has caused an injustice to Mr X and his neighbours. This is because hedgerow along the border has been retained and so the privacy buffer between their homes and the application site has been provided. The landscaping plan also requires new planting to be introduced to any thinned or removed areas of hedgerow.
48. Further, the trunks of some parts of the hedgerow are within the area to be developed and so would have required removal regardless of what was or was not understood from the approved plans.
49. I note Mr X has raised concerns about the loss of the hedgerow because it was of ecological importance and a historical hedgerow. However, the Council’s Tree Report noted the presence of Blackthorn Hedgerow and recommended removal or part removal of this to manage the spread and for new planting to be undertaken.
50. The Council accepts the approved plans include an error because two protected trees were not correctly plotted. This is fault. The Council should check the accuracy of plans before approving them. I note the matter has been resolved via a subsequently approved planning application. Therefore, I do not consider the error has caused an injustice.

Communication and Unacceptable Behaviour Policy

51. Mr X says the Council’s communication with him has been poor. The Council disagrees and says most communications were responded to. I agree the Council’s replied to Mr X’s initial communications. However, there were some notable exceptions such the lack of response to his request for a meeting at the site. The Council should have given Mr X a clear answer.
52. The Council has followed the process set out in its Unacceptable Behaviour Policy and so there are no grounds on which I can question its decision to apply the policy to Mr X.

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Final decision

53. I have not found evidence of fault causing an injustice and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman