Summary: Mr X says the Council failed to properly consider the impact on trees and hedgerows when granting planning permission, failed to properly assess trees, failed to follow the petition process and failed to respond to his complaint properly. There is no evidence of fault in how the Council handled the planning application or in its assessment of the trees. The Council did not follow the petition process fully and did not respond to all parts of the complaint. An apology, reminder to officers and a response to the complaint issues missed is satisfactory remedy.

The complaint

1. The complainant, Mr X, complained the Council:
• failed to properly consider the impact on trees and hedgerows when granting planning permission;
• failed to properly assess trees either before granting planning permission or after;
• failed to follow the petition process properly;
• failed to deal with all the issues raised in his complaint properly.
2. Mr X says the Council’s failures have affected the outcome of the planning application and means he has had to go to time and trouble to pursue matters.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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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What I have and have not investigated

7. I have exercised the Ombudsman’s discretion to investigate the grant of planning permission even though that is more than 12 months before the complaint to the Ombudsman. That is because although the Planning Committee considered the case in 2022 it did not issue planning permission until 2023 and the issues about the trees are ongoing.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

10. The National Planning Policy Framework (NPPF) says councils must determine applications for planning permission in accordance with the development plan, unless material considerations indicate otherwise.
11. The NPPF says local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
12. The NPPF says planning conditions should be kept to a minimum and only imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects.
13. The NPPF says planning applications resulting in the loss or deterioration of irreplaceable habitats (such as ancient woodland and ancient or veteran trees) should be refused, unless there are wholly exceptional reasons and a suitable compensation strategy exists.
14. The Woodland Trust says there is no set age for a tree to be considered ancient, as different species age at different rates. It says once oaks reach 400 years old, they are considered ancient trees.
15. The Government has issued guidance – ‘Ancient woodland, ancient trees and veteran trees: advice for making planning decisions’ (the guidance). This says a veteran tree may not be very old, but has significant decay features, such as branch death and hollowing. These features contribute to its exceptional biodiversity, cultural and heritage value.
16. The guidance says all ancient trees are veteran trees, but not all veteran trees are ancient. The age at which a tree becomes ancient or veteran will vary by species because each species ages at a different rate.
17. The guidance says when making planning decisions, you should consider:
• conserving and enhancing biodiversity;
• avoiding and reducing the level of impact of the proposed development on ancient woodland and ancient and veteran trees;
18. The guidance says you should refuse planning permission if development will result in the loss or deterioration of ancient woodland, ancient trees and veteran trees unless both of the following apply:
• there are wholly exceptional reasons;
• there is a suitable compensation strategy in place.
19. The guidance says you can use inventories to help decide whether a development proposal will affect ancient woodland (including wood pastures identified as ancient) or ancient and veteran trees. That includes the Woodland Trust's ancient tree inventory.
20. The guidance provides an assessment guide to help make planning decisions and says you should decide on the weight given to ancient woodland and ancient and veteran trees in planning decisions on a case-by-case basis.
21. The guidance says if you decide to grant planning permission that results in unavoidable loss or deterioration where wholly exceptional reasons are demonstrated, you should use planning conditions or obligations to make sure the developer:
• avoids damage;
• mitigates against damage;
• compensates for loss or damage (to be used as a last resort).
22. British Standard BS5837 2012 provides guidance and recommendations for development which impacts on trees. It says:
• An arboriculturalist should complete a tree survey to record information about the trees on or next to a site. The results of the tree survey, including material constraints arising from existing trees that merit retention, should be used (along with any other relevant baseline data) to inform feasibility studies and design options.
• the tree survey should include all trees included in the topographical survey, and any that might have been missed.
• individual trees, groups of trees and woodlands should be assessed for their quality and benefits within the context of proposed development, in a transparent, understandable and systematic way. The quality of each tree or group of trees should be recorded by allocating it to one of four categories – U, A, B and C.
23. The Council’s petition scheme sets out how it will handle petitions. For e-petitions it says within 10 working days of an e-petition closing the Council will let the petition organiser know the next steps. A petition acknowledgement and response will be emailed to everyone who has signed the e-petition and elected to receive the information. The acknowledgement and response will be published on the website.
24. The petition scheme says at the end of consideration of the petition the Council will provide the petition organiser with a formal response. For an e-petition every signatory will be sent the formal response by email.
25. If the petition organiser feels the Council has not dealt with the petition properly he or she can request a review within 28 days of the formal response.

What happened

26. The Council considered a planning application which included highway improvements. As part of the development proposal various trees, hedges and woodland would be removed. The planning application included an arboricultural impact assessment (AIA) which assessed the trees proposed for removal. The Council granted planning permission and imposed various conditions. One of those conditions required the applicant to provide a hard and soft landscaping scheme for the Council’s approval and a landscape and ecological management plan (LEMP).
27. Mr X put in a complaint about how the Council had handled the planning application and details to discharge conditions. The Council agreed a statement of complaint with Mr X and sent him a response on 7 May 2024.

Analysis

28. Mr X says the Council failed to properly consider the impact on trees and hedgerows when granting planning permission. Mr X says the Council has not considered the status of the trees properly and the Committee granting planning permission did not have all the relevant evidence.
29. Having considered the report for the planning application I am satisfied it set out resident’s objections about the loss of trees and woodland. That included reference to the loss of veteran trees. I am also satisfied the report made clear the proposed development would result in the loss of trees, hedges and woodland and the categories of those trees. The report went on to say the removal of trees and woodland would have a significant adverse impact on the landscape character of the area. The report recorded the officer’s view that the impact would be mitigated in the medium to long term by the planned planting. I am also satisfied the report for the planning application made clear the county landscape architect had considered the proposal and was satisfied with the proposals subject to a full LEMP to include a comprehensive landscape and ecological management scheme for on-site planting. The report also acknowledged mitigation for the loss of mature oaks would be over the very long term.
30. Given all that information in the report I could not say Committee failed to properly consider the impact the development would have on existing trees. Clearly the Council has reached a decision with which Mr X strongly disagrees. However, I have seen nothing in the documentary evidence to suggest Committee disagreed with the officer’s view that a planting scheme would mitigate the loss of trees and woodland in the medium to long term. It was open to Committee to refuse the application or seek further information. However, as I am satisfied Committee granted permission after considering a detailed report which made clear the impact the development would have on trees and woodland I have no grounds to criticise it.
31. In reaching that view I recognise Mr X is unhappy with the quality of some of the reports produced by the applicant for the loss of trees and the assessment of those trees. I also recognise Mr X’s group produced its own report which proposed an alternative layout for the site to enable retention of further trees. I am satisfied the report for the planning application referred to the existence of that report. The additional report produced for Committee also included the applicant’s comments about why the alternative layout proposed was not acceptable. I have seen no evidence to suggest Committee had concerns about the information it had or that it wanted to consider an alternative proposal. As I am satisfied Committee knew about the existence of an alternative proposal and there is no evidence it had concerns about the application in front of it, I have no grounds to criticise it.
32. I recognise Mr X does not believe the reports the applicant produced have assessed the trees properly. The evidence I have seen satisfies me the Council has considered Mr X’s concerns but does not share them. I appreciate Mr X disagrees. However, it is not my role to comment on the merits of a decision unless I have found evidence of fault.
33. In this case I am satisfied the Council considered Mr X’s comments and explained why it does not share the same view of the reports. The Council is satisfied the AIA is in in accordance with the NPPF and fit for purpose. It also does not share Mr X’s concerns about the Recognition of Ancient, Veteran and Notable Trees report (RAVEN2). I consider it was reasonable for the Council to rely on the reports given they were produced by people qualified to carry out an assessment. In those circumstances I could not criticise the Council for relying on those reports.
34. In any event, Committee granted planning permission and I have seen nothing to suggest whether the trees planned for removal were veteran trees as Mr X claims was a determining factor when it granted planning permission. I say that because nowhere in the report does it refer to whether any trees were veteran trees. Instead, the report said trees and woodland would be lost, set out their categorisation in the AIA and Committee granted planning permission based on that.
35. Mr X also raised concerns the proposed design for the development has changed since the Council granted planning permission. I am satisfied though that as part of the grant of planning permission the Council included conditions requiring the applicant to put in various details, which included details of hard and soft landscaping, drainage arrangements and other design matters for the Council’s approval. What that means is the final design for landscaping and other items was not approved at the planning application stage. Considering design proposals to discharge conditions on a planning permission is part of the normal process. I appreciate Mr X would have liked further input on the design. However, the Council is not required to consult on matters relating to the discharge of conditions. I therefore have no grounds to criticise the Council.
36. Mr X raises concerns about the Council’s RAVEN2 assessment. Mr X says the RAVEN2 assessment, undertaken after the grant of planning permission, did not follow the NPPF and was designed to prevent any of the trees being assessed as veteran.
37. Having considered the RAVEN2 assessment I am satisfied it was completed by somebody qualified to carry out the assessment. I am satisfied the report set out how the trees had been assessed and the conclusions the assessor had reached. I am also satisfied the report referred to the definition of an ancient or veteran tree in the NPPF, as well as definitions from other sources, and explained none of the trees assessed met that definition. I recognise Mr X strongly disagrees with the assessment completed. However, it is not my role to comment on the merits of the decisions reached. I have found nothing in the report to suggest fault and I therefore cannot criticise the Council for taking into account the findings of the report on the status of the trees, which were similar conclusions to the AIA. Again, I am satisfied a suitably qualified person completed the report and the Council has explained why it does not agree with Mr X’s criticisms of that report.
38. Mr X says the Council failed to consider the ecological parts of the project. I am satisfied though in granting planning permission for the development the Council considered a detailed report. That report included detail about the ecological impacts of the development and the proposed mitigation. I am therefore satisfied the Council properly considered those matters.
39. Mr X says all the trees were accessible and yet they were not all assessed. The evidence I have seen though satisfies me although the 2021 AIA does not appear to have fully assessed every tree, the RAVEN2 assessment considered all trees affected in November 2023.That assessment did not make any significant changes to the status of the trees. I therefore have no grounds to criticise the Council.
40. Mr X says the Council failed to include an oak tree on site as a veteran tree when it is 327 years old and is therefore ancient. I am satisfied the RAVEN2 assessment identified the tree Mr X refers to as a notable tree, rather than a veteran tree. I note the Woodland Trust says oak trees are considered ancient once they have reached 400 years old. In those circumstances I cannot criticise the Council for relying on the outcome of the RAVEN2 assessment in relation to that tree.
41. Mr X says the Council has failed to engage with the local community about the design since planning permission was granted. As the Council has pointed out, although it must consult with residents on a planning application it does not have any further responsibility to carry out consultation once it has granted planning permission. I am satisfied though the Council has consulted residents on landscaping proposals required to discharge planning conditions. The Council did not have to do that and I therefore welcome its decision to do so in this case. I appreciate Mr X continues to disagree with the proposals for the site. However, as I have made clear, I have not found any evidence of fault in how the Council has handled matters in this case.
42. Mr X says the Council failed to follow the terms of reference for the petitioning process. I set out in paragraphs 22 and 23 the sections of the Council’s petition scheme Mr X says it has not complied with. The Council accepts it did not email everyone who had signed the petition and elected to receive that information to tell them about the next steps. The Council also accepts it did not provide every signatory of the petition with a copy of the formal response to the petition. Failure to follow the petition scheme properly is fault. As remedy for that I recommended the Council apologise to Mr X and remind those dealing with petitions of the need to contact those who have signed the petition where they have elected to receive that information. The Council has agreed to my recommendation.
43. Mr X says the Council chose to place the entire complaint into the complaints system. Mr X says this meant his concerns about staff conduct were not properly considered. It is not fault for the Council to put a complaint through its complaints procedure even if the complaint includes concerns about staff conduct. In any event, in this case I am satisfied the issues Mr X raised about staff conduct related to issues with communication as well as whether various assessments had been completed properly. I do not criticise the Council for treating those issues as a complaint and putting it through its complaints procedure.
44. Mr X says because the Council summarised his complaint it means he did not receive a full response. It is not uncommon for councils to summarise the main headings for a complaint, particularly when a complaint is complex as is the case here. That is not fault and I note in this case Mr X agreed the statement of complaint. I therefore have no grounds to criticise the Council for summarising the complaint. The issue for me to consider is whether, when responding to the complaint, the Council addressed all the issues raised.
45. Having considered the Council's response to the complaint on 7 May 2024 I am satisfied the main issues Mr X raised, particularly around the trees affected by the development, were responded to. Mr X had raised some specific concerns about various design aspects of the development though which were not responded to in the complaint response. Instead, the Council noted any outstanding issues would be addressed as part of the post approval process and said not all issues raised by residents would be addressed to their satisfaction.
46. I understand the difficulty here given the final design aspects were not all agreed at the time the Council responded to the complaint. Nevertheless, Mr X had raised specific issues and it was not unreasonable for him to expect a response to those points. I cannot see that the Council responded to Mr X's concerns about:
• uncertain car park size, configuration and location;
• two new access roads for the sustainable drainage systems (SuDS);
• resizing and reshaping of the two SuDS ponds;
• footway reconfigurations;
• three moved vehicle entry/exit access points;
• desire lines;
• representations that the community should be involved to ensure an optimal solution rather than one which only favours vehicles;
• the practicality and viability of the shared footway scheme.
47. Failure to respond to those points in the complaint response is fault. I recommended the Council apologise to Mr X for that and arrange for a response on those issues to be sent to him within one month of my final decision. I also recommended the Council remind officers dealing with complaints that although it is acceptable to summarise a lengthy complaint the Council must ensure all the issues raised have been addressed in the complaint response. The Council has agreed to my recommendations.
48. Mr X says the Council relied on incorrect information when responding to his complaint. I have found no evidence to support that allegation.
49. Mr X says the Council failed to substantiate the evidence in his complaint by using an independent arboricultural expert. I see no reason why the Council would have needed to consult an independent expert to respond to the complaint. I would only have expected the Council to consider that if, when putting together its response to the complaint, it identified issues with the tree assessments completed. It is clear though the Council does not share Mr X’s concerns about the quality of the reports on which planning permission was based. I therefore have no grounds to criticise it.
50. Mr X says the Council should not have consulted with the team that was implicated in the case when responding to his complaint. Mr X says this shows bias.
51. When responding to a complaint I would expect the Council to ask the department involved for the relevant information and any comments. Doing that is part of the normal process and is not fault or evidence of bias. I appreciate Mr X strongly disagrees with the decisions the Council has taken and in those circumstances it is not surprising he believes there is evidence of bias as the Council has not upheld any of his complaints. However, I have not found any evidence of fault or bias in the Council’s decision making.

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Agreed action

52. Within one month of my decision the Council should:
• apologise to Mr X for the frustration he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• send Mr X a further complaint response to address the issues not covered in its previous complaint response; and
• remind officers dealing with complaints of the need to ensure all aspects of the complaint are responded to, particularly when a complaint has been summarised.

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Final decision

53. I have completed my investigation and found fault by the Council in part of the complaint which caused an injustice to Mr X. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman