Summary: Mr X complained that the Council failed to follow tree root protection guidelines when it approved planning permission for a neighbour’s parking area. Mr X said he has been caused distress by the possible future damage to his oak trees, which might cause damage to cars parked below the trees. We do not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Mr X, complained that the Council failed to follow guidelines on tree root protection areas when it approved planning permission for a parking area. He said the parking area has been built right up to the trunks of his oak trees.
2. Mr X said he has been caused distress by the possible damage to the trees in future, which might cause damage to cars parked below the trees. He fears he might be held liable for any damage.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.

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What I found

What should have happened

Planning

6. The law says councils should approve planning applications that accord with policies on the local development plan, unless other material planning considerations indicate otherwise. Material considerations include issues such as overlooking, traffic generation and noise. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.
7. A council must be able to show it has considered the material considerations that are engaged by the planning process. Evidence is usually found in the case officer’s report. The records should show what considerations were taken into account and what the council made of them.
8. Normally, a case officer will prepare a report, assessing the application against relevant local plan policies and other material planning considerations. The report usually ends with a recommendation to grant or refuse planning permission.

British Standard 5837

9. British Standard BS 5837 (“Trees in relation to design, demolition and construction – Recommendations”) was issued by the British Standard Institution in 2012. It outlines a four-stage process for properly considering trees during each stage of development. It sets out recommendations and guidance for arboriculturists, builders, engineers, and landscape architects.
10. It says:

“This British Standard takes the form of guidance and recommendations. It should not be quoted as if it were a specification.”

What happened

11. Mr X’s neighbour submitted a planning application to the Council. This application included making a parking area on some land adjacent to Mr X’s land.
12. The Case Officer assessed the planning application. The Council approved the application subject to some planning conditions.
13. In 2023, Mr X complained to the Council. In its response, the Council told Mr X that if his neighbour had not built the parking area in line with the approved planning permission, Mr X should provide the Council with details.
14. Mr X told the Council it had not protected the roots of his oak trees which were next to the new parking area.
15. The Council said there was no requirement for a tree root protection area unless a tree is protected by a tree preservation order. It said Mr X’s trees were not covered with such an order, so it was not required to protect his trees’ roots. The Council said Mr X could take private legal action about any damage to his trees.
16. Mr X then brought his complaint to the Ombudsman.

Analysis

17. Mr X complains that the Council failed to follow guidelines on root protection areas when it approved planning permission for a parking area. He says the parking area has been built right up to the trunks of his oak trees.
18. Mr X got information from the Woodland Trust about British Standard 5837 (set out above). The Woodland Trust told Mr X that it did not look like the Council followed British Standard 5837 at the planning stage.
19. Mr X says the Council should have followed British Standard 5837 at the planning stage because the parking area is damaging his trees’ roots.
20. I have considered British Standard 5837. As I have quoted above, British Standard 5837 “takes the form of guidance and recommendations. It should not be quoted as if it were a specification.” For this reason, I do not find that the Council had an obligation or duty to take British Standard 5837 into consideration when making its decision on the planning application.
21. I have also considered how the Council assessed Mr X’s neighbour’s planning application. I find the Council considered the planning application and material considerations in line with all the relevant policies. I find no fault with how the Council assessed the planning application and made its decision to approve it.
22. For these reasons, I do not find the Council at fault.

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Final decision

23. I have completed my investigation. I do not find the Council at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman