Summary: Mr C complained on behalf of a resident’s association about how the Council dealt with a planning application for works to a wall and balustrades. He said this result in the loss of several mature trees and impact residential amenity and the local environment. We found no fault in the way the Council considered the planning application and the objections it received. It therefore reached a decision it was entitled to make.

The complaint

1. The complainant, Mr C, complained on behalf of a resident’s association about the Council’s handling and decision to grant planning consent for works to a wall and balustrades around a listed garden. They said it failed to properly consider the proposal and the relevant information available to it.
2. The resident’s association said, as a result, there will be unnecessary loss of mature trees, shrubs and vegetation, which will impact amenity of residents and the public. Including a negative impact on the environment and biodiversity, air quality, the cultural and historical value, and climate change.

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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. 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. I considered evidence provided by Mr C, on behalf of the resident’s association, and the Council as well as relevant law, policy and guidance.
7. Mr C, the resident’s association, and the Council 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

Relevant law, guidance and policy

Planning permission

8. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
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 from a property;
• 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, precise, enforceable and reasonable in all other regards.

Decision making and material considerations

12. All decisions on planning applications must be made in accordance with the council’s development plan, unless material considerations indicate otherwise.
13. Material considerations relate to the use and development of land in the public interest, and not to private considerations such as the applicant’s personal conduct, covenants or reduction in the value of a property. Material considerations include issues such as overlooking, traffic generation and noise.
14. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless is it founded upon valid material planning reasons.
15. Government statements of planning policy are material considerations.
16. General planning policies may pull in different directions (e.g. in promoting residential development and protecting residential amenities).
17. It is for the decision maker to decide the weight to be given to any material consideration in determining a planning application.

Case officer report & giving reasons for decisions

18. 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.
19. 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.

Council’s delegated powers policy

20. The Council policy says planning decisions can be made through:
• delegated powers in which a planning officer makes a recommendation whether permission should be granted for an application, and a senior member of staff reviews the decision. This normally relates to decisions on small scale applications such as householder alterations and extensions; or
• by its planning committee.
21. In circumstances where an application falls within the delegated powers but there are objections from a Conservation Area Advisory Committee, a residents or amenity group, or a ward councillor, its Members briefing panel is required to consider and decide whether the application should be decided by delegated powers or planning committee.

What happened

22. In 2023 a planning application was made to the Council for the demolition and rebuilding of a retaining wall and balustrade of a listed garden. The applicant said the works was necessary due to the deterioration and damage to the wall and foundations.
23. The planning proposal set out the method the applicant intended to use to complete the works. This included the use of a large excavator to ensure piles were deep enough to secure the works and limit the risk of movement. As a result of the use of the equipment several mature trees, mature shrubs and vegetation would have to be removed. The proposal suggested some replanting of tree saplings. This was also for less trees and in different locations.
24. The Council considered the application and sought the view of its Structures team, which obtained further information about the works and the options that had considered from the applicant and the applicants consultant. By summer 2023 the Council’s Structures team was satisfied the planning proposal was acceptable and the use of the large excavator was appropriate.
25. In early 2024 the Council was still considering the planning application. Its tree and conservation officers had concerns about the removal of trees, shrubs and vegetation in comparison to the works and replanting proposed. They found the works should be refused, and the applicant was informed about the Council’s intensions.
26. The applicant asked the Council for a site meeting to discuss the concerns about its proposal. The Council confirmed it was not the use of the large excavator, which was the issue as its Structures team had found this appropriate, but the adverse impact from the removal of the trees and proposed replanting scheme.
27. In March 2024 a meeting took place between the planning applicant and the Council. This included the planning and tree officers from the Council.
28. The applicant subsequently set out a revised planting proposal, which included more trees, a change to the type of trees, and some changes to the layout of the trees.
29. By May 2024 the Council tree and conservation officers were satisfied the revised planning proposals meant the adverse impact of the works was sufficiently mitigated, and the adverse impact was acceptable in planning terms. The Council subsequently said it intended to recommend approval of the application.
30. In May 2024 Mr C and the residents association shared with the Council:
• A specialist consultant report which considered the proposed works and replanting. The consultant did not agree the large excavator was necessary and found the works could be completed with less intrusive machinery which would preserve the trees;
• an arboricultural report which highlighted the adverse impact of residential amenity as a result of the loss of trees. Including any positive impact of the replanting would take 40-45 years to take effect due to the existing size of the trees;
• their comments on the works and impact on the resident’s amenity due to the loss of trees. They believed it was the applicant’s intention to remove the trees to enable previous plans regarding the layout of the replanted trees, which would adversely impact residential amenity; and
• information that the applicant was intending to complete the works in phases over a few years. This meant that only parts of the works would be completed, and some works may not be necessary as only cosmetic works was planned.
31. The Council considered the resident association’s comments, but found no new information was provided and a response was not required. It sought clarification from the planning applicant regarding its intension to complete the works in phases and whether this meant some trees would be preserved.
32. The planning applicant confirmed it remained its intention to complete all the works. It explained this may be in phases, but the proposal was unchanged. Any reference to cosmetic work was to ensure the appearance of parts of the wall not being worked on was appropriate until the next phase would commence.
33. In Summer 2024 the Council’s Members Briefing Panel considered the application and planning officers report. It found it was appropriate for the proposal to be considered under delegated powers, and a full planning committee consideration was not necessary. The application was subsequently approved by the Council.

The residents’ associations complaint

34. The resident association was unhappy with the Council’s decision to approve the planning application. Below are the key points of their complaint and the Council’s responses:
• It wrongly agreed the use of a large excavator was required to complete the proposed works as it failed to properly consider relevant information from experts;

The Council said it had considered the applicants proposal and methodology, which its Structures team had found was appropriate. It acknowledged the resident association’s consultant had a different view which it had considered. However, this did not change its view, and it had not found it was necessary to respond to the consultant’s views or comments it received.

• It failed to adhere to its own policies and a reasonable standard of service as it did not follow its own tree officer’s and conservation officers’ advice and concerns. They also said the impact on residential amenity would continue for the next 40 years;

The Council explained its tree and conservation officers initially recommended refusal of the planning proposal due to the loss of trees. However, following its site visit and discussions with the applicant, revised plans were provided which were acceptable to its tree and conservation officers. It did not agree with the resident association’s concerns it was pressured by the planning applicant to approve the application. It acknowledged there would be an impact on residential amenity, but it found the benefits of the work and replanting plans outweighed this.

• It failed to keep enough records of communication and the March 2024 site meeting with the applicant. They said it acted without independence and impartiality as it subsequently changed its view from intending to refuse the proposals to recommending approval;

The Council said the meeting was a site visit and a discussion with the planning applicant. There were no minutes of the meeting. However, the applicant had subsequently provided a revised planting scheme which was considered by the Council. Its Tree and conservation officer subsequently found the proposal acceptable in planning terms.

• Its planning officer failed to include material considerations in the planning officers report. Members therefore considered a misleading and incomplete report of the planning proposals; and

The Council found its planning officers report summarise the relevant information for the planning application, law and policy, the comments it had received, and the officer’s recommendations. It explained the report was not required to set everything out, but key points and material planning considerations were identified. Its Member’s briefing panel considered the application and found it appropriate to be decided under delegated powers. The case officer was subsequently entitled to exercise judgement considering all the information available.

• It had failed to properly consider the applicant’s intention for works to be completed in phases and some works to parts of the wall may not be required or would only be cosmetic.

The Council explained the approved planning application was for the whole works to the wall and balustrades. The planning applicant had not submitted a proposal to do so in stages and it had confirmed with the applicant the intension was still to complete all the works.

35. The resident’s association continued to raise his concerns to the Council, made a Freedom of Information request, and shared an updated report from their consultants with the Council. The Council explained it had reached its planning decision and had already responded to the complaint.
36. Mr C asked the Ombudsman to consider the resident association’s concerns about the Council’s handling of the planning approval.
37. In response to my enquiries the Council confirmed the works remains for all the works as set out in the planning approval. While the applicant may decide to complete the works in phases, planning conditions attached to its consent enables the Council to protect areas and trees which are not subject to works until the works commences.

Analysis and findings

38. The Ombudsman is not an appeal body. This means we do not take a second look at a council decision to decide if it was wrong. Instead, we look at the processes a council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of how strongly a complainant may disagree with that decision.

Was there fault in how the Council considered the planning application?

39. The Council considered the planning application since 2023 before it reached its decision to approve the application in Summer 2024.
40. I have not found fault in the process the Council followed to consider the planning application. In reaching my view I was conscious the evidence shows it considered:
• the methodology to complete the works to the wall and balustrades set out in the planning application and related documents. This included its Structures team’s view on the use of the large excavator and the applicant’s consultant report. The Structures team also considered whether other less invasive options were appropriate. It subsequently reached a view it was entitled to;
• the loss of trees, shrubs and vegetation against the proposed replanting scheme. The Council’s tree and conservations officers found this caused an adverse impact on residential amenity and the area. Their view was initially to recommend refusal. However, following a site meeting with the applicant and the submission of a revised planting scheme, they found the proposed scheme acceptable in planning terms as the benefits of the scheme outweighed the adverse impacts. This was a view they were entitled to reach even though it may take many years before the impact is mitigated;
• relevant national and local policy, including material planning considerations, as set out in the planning officers report. I am not satisfied the officers report lacked key information or was misleading. Nor would I expect it to have been more detailed; and
• comments, objections and other consultant reports it received. This included the resident’s association’s consultant report which found the methodology and use of a large excavator was not needed. It was for the Council to decide what weight to apply to the information and the contradicting consultant reports available to it.
41. I acknowledge the resident’s association believe the Council did not properly consider their representations and the views of their consultants. They were also concerned about the lack of information available about the Council’s site meeting with the planning applicant.
42. However, it is common practice for a planning authority to have site meetings with planning applicants to reach a view on a proposal and discuss any concerns. I also note there are no requirement to keep minutes of such meetings, and available information shows the purpose was to discuss the Council’s concerns and for the planning applicant to consider changes to the proposed replanting scheme to make it acceptable in planning terms.

Was there fault in how the Council reached its decision?

43. It is not disputed that the approved planning application would impact the amenity of residents or the local area and there would be a loss of trees. The comments from Mr C, on behalf of the resident’s association, was partly the reason why a Member’s briefing panel was required.
44. The Council’s Members briefing panel considered the planning application. The panel had the officer’s report, the planning documents on the Council’s website, and a member’s pack with relevant documents available to it before it reached its view. They did not find it was necessary for the Council’s planning committee to consider the planning application, which was a decision they were entitled to make.
45. The Council was subsequently entitled to reach its view under its delegated powers. While the resident’s association disagrees with the outcome, without fault in the process followed, I cannot criticise the decision it made.

The approved works being completed in phases

46. The resident’s association told the Council the planning applicant intended to complete the works to the wall and balustrades in phases, and it may not require to do works on large sections of the wall.
47. The evidence shows the Council sought clarification from the planning applicant of its intentions and whether this changed the planning application it was considering.
48. I am not satisfied this was relevant for the planning decision. This is because the planning application the Council considered remained unchanged.
49. If the applicant subsequently completes the works in stages, the Council retains the ability to protect trees in areas where no work, or only cosmetic work, is taking place. This is due to the pre-commencement conditions attached to the planning approval. It also has the right to consider enforcement action if it considers this is a breach of the planning approval.

Was there fault in how the Council communicated with the resident’s association?

50. I have not found the Council at fault for how it communicated or responded to the complaints it received from the resident’s association.
51. Once the Council received and considered the resident associations comments on the planning application, I would not expect for the Council to continue to respond to further comments or reports it receives. It was entitled to reach its planning decision at that stage.
52. Similarly, once the Council had responded to the resident’s association’s complaint, I would not expect the Council to continue to respond to further comments or reports which disagreed with the Council’s planning decision.
53. I understand the resident’s association was not happy with the Council’s complaint responses and believes the Council should have provided more detail and responded to each of their concerns. I have considered the Council’s responses, and I am satisfied it provided an appropriate response to their complaint. I acknowledge they continue to disagree with the outcome, however, without fault in the process of a planning decision, the complaints process cannot be used to have a planning decision reconsidered.

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Decision

54. I have completed my investigation with a finding of no fault in the process the Council followed to reach its views. It therefore made decisions it was entitled to make.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman