Summary: X complained about the change in the terms of a landscaping condition which was imposed by the Council when it approved a planning application. X said their amenity will be affected because planting will not begin before another planting season has passed. There was no evidence of fault in the way the Council made its decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained that the Council approved a planning application subject to a landscaping condition that was different to the one discussed with members of the planning committee.
3. X said the original proposal discussed with members was for planting to begin before occupation of the development, but the condition imposed required planting following completion of certain earth works.
4. This meant that planting would be delayed by about a year and this will affect their amenity.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered:
• the plans and the committee report;
• the decision notice;
• a video recording of the committee hearing;
• the condition discharge decision notice; and
• relevant sections of the Town and Country Planning Act 1990.
8. I gave the Council and X an opportunity to comment on my draft decision and took account of any comments received.

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What I found

Planning law and guidance

9. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
10. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
11. 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.
12. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.
13. Some conditions require compliance before development or use begins. These are known as ‘pre-commencement’ conditions.
14. Section 100ZA of the Town and Country Planning Act says that the terms of pre-commencement conditions can only be imposed with written agreement of the applicant.

What happened

15. The Council received an application for a major development, which was referred to its planning committee to decide.
16. 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;
• comments from neighbours and other consultees;
• planning policy and guidance considered relevant;
• an appraisal of the main planning considerations, including the principle of development, the design of the building, landscaping and planting, drainage and flood risk, and the impact on residents; and
• the officer’s recommendation to defer the decision until the advertisement period ended, and delegate approval to the director of planning and economic regeneration, subject to planning conditions.
17. The original landscaping condition did require planting before occupation of the building. The committee discussed landscaping and tree planting and asked officers if the condition could be improved to require certain types of tree and more mature trees. Officers explained this could happen, and that the decision would be delegated to officers, though there was scope for input and oversight by members through monthly liaison meetings.
18. The terms of a revised landscaping condition were agreed, and did include details on types and size of trees. The revised condition is a pre-commencement condition and included a new trigger point, which was related to the completion of certain earthworks, and not the occupation of the building as was once intended.
19. The applicant submitted landscaping plans to the Council, and these were considered and agreed by officers using delegated powers.
20. X said the delay in beginning planting will affect their amenity. X lives several hundred metres from the nearest part of the new building.

My findings

21. 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.
22. The trigger points of when planting should begin did change following the planning committee’s decision. After the committee made its decision, officers agreed a revised and more detailed condition with the applicant.
23. By law, the written consent of the applicant is necessary before imposing a pre-commencement condition. The fact that the terms of the landscaping condition changed between the original application and the revised scheme, which followed the committee’s decision, is not fault. The Council followed the correct process, and we cannot question its decision.
24. In any event, even if I had found evidence of fault, I would not have recommended a remedy for X. This is because of the significant distance between X’s home and the new development.

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Final decision

25. There was no fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman