Summary: X complained about the Council’s decision to approve a planning application on land at the side of their home. X also complained the Council failed to enforce planning controls relating to tree protection. We did not investigate these complaints further, as we were unlikely to find significant fault, recommend a remedy or reach any other meaningful outcome.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision to approve development on land near their home. X said:
• the number of objections from the public were incorrectly recorded in the planning case officer’s report;
• the Council’s explanations of why public comments were not shown in the case officer report or available on its website are incorrect;
• the applicants sent revised documents and the Council did not reconsult the public on the changes they included;
• the Council did not consult the water company after drainage plans were amended;
• there was a planning condition requiring a construction management plan for the first application but not the second application; and
• planning conditions relating to tree protection were in breach but no enforcement action was taken.

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The Ombudsman’s role and powers

3. We investigate 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 continue 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
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

4. I read the complaint and discussed it with 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 the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning applications

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. Details of how a council considered an application are usually found in planning case officer reports. The purpose of the case officer’s report is not merely to facilitate the decision, but to demonstrate the decisions were properly made and due process followed. Without an adequate report, we cannot know whether the council took proper account of the key material planning considerations or whether judgements were affected by irrelevant matters.
8. However, the courts have made it clear that case officer reports:
• do not need to include every possible planning consideration, but just the principal controversial issues.
• do not need to be perfect, as their intended audience are the parties to the application (the Council and the applicant) who are well versed of the issues; and
• should not be subject to hypercritical scrutiny, and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
9. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
10. Planning considerations do not include things like:
• views over another’s land;
• the impact of development on property value; and
• private rights and interests in land.
11. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
12. Some councils issue guidance on how they would normally make their decisions and how they generally apply planning policy. The guidance is issued in supplementary planning documents (SPD) and can be found on council websites.
13. Planning guidance and policy should not be treated as if it creates a binding rule that must be followed. Councils must take account of their policy along with other material planning considerations.
14. Amongst other things, SPD guidance will often set out separation distances between dwellings to protect against overshadowing and loss of privacy.
15. Although SPD can set different limits, typically councils 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. They 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 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.

Planning enforcement

18. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.

What happened

19. The Council received a planning application to demolish a large building and replace it with a number of houses. X lives in a house that adjoins the development site. The side of X’s home is about 30m from the rear elevations of the nearest of the new houses. X’s garage is closer to the shared boundary and X says that the building site is on higher ground.
20. The Council refused the application because of its impact on trees on the site, some of which were protected by TPOs.
21. The developer revised their plans by moving the houses further away from the trees and then submitted a second planning application.
22. The planning application was considered by a case officer, who wrote a report which included:
• a description of the proposal and site;
• a summary of planning history considered relevant;
• a summary of comments from neighbours and other consultees, including a tree officer;
• details of planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including impact on trees, ecological impacts, residential amenity, site drainage and highway safety; and
• the officer’s recommendation to approve the application, subject to planning conditions.
23. The Council’s planning committee approved the application and the planning conditions.
24. X complained about the Council’s decision, and the Council responded to say:
• the case officer’s report did incorrectly record the number of objections from local residents, and this had happened because of a problem with new computer software;
• it does not include copies of letters/comments from the public on its planning website for data protection reasons, but can provide redacted copies on request;
• it did consider amended plans, but as the development remained substantially the same, it decided there was no need to change the description or to reconsult on the changes;
• it did not consider it necessary to consult the water company on the second application, as the drainage plans had not changed significantly;
• it did not require a construction management plan when it approved the second application, as it had with the first, because it was unnecessary. The Council explained that Environmental Health powers were available to protect the public if noise or other nuisance was caused during construction works; and
• its Tree and Planning Enforcement officers had visited the site but found no breaches of planning controls relating to protected 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:
• The side of X’s house is a considerable distance from the rear elevations of the new houses, and even with the differences in levels X reports, we would not be able to say the new development causes a significant injustice that we should remedy.
• In its response to X’s complaint, the Council acknowledged errors in the case officer’s report. However, to justify further investigation I would need evidence to show that any error was significant enough to result in a different outcome. I would also need to show the difference in outcome caused a significant injustice to X that we should seek to remedy. For the reasons given above, that is not the case here.
• Before it made its enforcement decisions, the Council considered the allegations, its planning powers and what it found on site. This is the decision-making process we expect, and further investigation is unlikely to result in a finding of fault.

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Final decision

30. I ended my investigation, as it was unlikely to result in a finding of a significant fault, a recommendation for a remedy or any other meaningful outcome.

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Investigator's decision on behalf of the Ombudsman