Summary: The Council was not at fault with its handling of a planning application, at a site opposite Mr X’s family home.

The complaint

1. Mr X complained about how the Council dealt with a planning application opposite his family home. Mr X had concerns about residential amenity, the consultation process, access to a private road, subsidence and ground conditions, lighting, wildlife and permitted development to enable a static caravan to be placed on the site causing trees to be removed. Mr X said this caused distress to him and his family.

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The Ombudsman’s role and powers

2. 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).
3. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6).
4. It is our decision whether to start, and when to end an investigation into a complaint or any part of a complaint the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), 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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What I have and have not investigated

6. It is not the Ombudsman’s role to adjudicate in disputes about land ownership. The granting of planning permission does not overrule any private ownership or access rights, in relation to which the developer may need to obtain a separate consent in order to implement the development. That would be a private matter for the affected parties to resolve and could not be considered as part of this investigation. Also, complaints related to land ownership issues, including sale, disposal, purchase, conveyancing, and land disputes, are a possible complaint but may fall outside our powers and control if they relate directly to court proceedings or legal actions already underway.
7. I have not considered any parts of Mr X’s complaint about the following matters because, Mr X did not initially raise these through the Council’s complaints process in relation to this complaint:
• the Council’s response to a static caravan including installing associated utility services; and
• the Council’s response to installing lighting at the site and how it affected wildlife and residential amenity issues.
8. I consider it reasonable for Mr X to raise these new issues with the Council if they are still of concern. Mr X can then pursue a new complaint with the Ombudsman once he has received the Council’s final response on these matters.
9. The Ombudsman has already found fault with the Council on another case about the same site regarding lighting and wildlife impacts. The Council has already agreed to take action on this issue.
10. Mr X’s dispute about a boundary of a neighbouring property should be made by the landowner.
11. I have investigated the other issues Mr X raised, set out in the decision below.

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How I considered this complaint

12. I considered:
• information provided by Mr X and spoke to him on the telephone;
• the Council’s response to the complaint, the documents from its planning files, including the plans, the case officer’s report, the Council’s Statement of Community Involvement (SCI) and a tree report submitted by the applicant; and
• relevant law and guidance as set out below.
13. Mr X 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

Planning law and guidance

14. Councils should approve planning applications that accord with policies in the local development plan, unless other material planning considerations indicate they should not.
15. Planning considerations include things like:
• access to the highway;
• protection of ecological and heritage assets; and
• the impact on neighbouring amenity.
16. 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.
17. Councils may impose planning conditions to make development acceptable in planning terms. Conditions should be necessary, enforceable and reasonable in all other regards.

Amendments to planning applications

18. Most planning approvals relating to development will include a condition requiring compliance with approved plans. If after approval is granted, applicants want to carry out development without complying with planning conditions, they can apply to remove or vary the original condition. The Council will then decide whether to grant permission to change obligations required in the original application.
19. An application under sections 73 of the Town and Country Planning Act 1990 may allow a developer to apply to carry out development without complying with conditions imposed by the original approval. This section can be used to vary or delete conditions imposed on planning approvals. However, variations cannot add or remove development or uses that are set out in the description of the application in the decision notice.

Tree Preservation Orders

20. 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.

What happened

Background

21. The Council approved a planning application for a development on land opposite Mr X’s family home which was over 25 metres away from the side window of the development.
22. The development site is next to a group of trees protected by a tree preservation order (TPO), one of which overhung the site boundary. The application included a tree report submitted by the applicant, which identified relevant trees and proposed relevant protection measures.
23. The Council also consulted with the Highways Authority and Coal Authority and wrote to adjoining neighbours.
24. Before a decision was made on the planning application, the Council’s planning case officer wrote a report which included:
• a description of the proposal and site;
• planning policy and guidance considered relevant;
• issues about residential amenity and design, build levels, parking and highways, including consultation with the Highways Authority, nature conservation issues, trees including consideration of a tree report, land stability and mining legacy including consultation with the Coal Authority and an appraisal of these;
• consideration of three responses from a neighbour consultation relating to the design, landscaping, loss of habitats, subsidence concerns, road ownership and highway concerns and loss of views and privacy; and
• the officer's recommendation to approve the application, subject to planning conditions.

The Council’s response to the complaint

25. Mr X complained to the Council in early February 2025. The Council wrote to Mr X with its response to the issues raised in his complaint and said:
• the position, alignment and height of the proposed development within the plot was acceptable, site visits were conducted and any privacy and overshadowing impact was minimal as referred to in the case officer report. A section 73 application proposed the development was set back to align with other properties was awaiting decision;
• environmental concerns were addressed and any consultation responses for previous applications on the site were no longer applicable. The Council did not have an ecologist in post when it determined the application. It was entitled to consider a report commissioned by the applicants independent ecological expert. It did not consult the Parks and Open Spaces team but did so on the section 73 application;
• the proposal provided limited landscape details with grass being majority of the outside space including new trees which would add to the street scene. It said no issues were raised in the case officer report and further landscape conditions were not appropriate or reasonable;
• the application did not provide boundary fencing details other than that shown on the plans and the rear garden would be enclosed by a fence. Permitted development would apply to the development boundary which would be observed. The proposal would provide an added level of security when built out and boundaries established;
• it did not need to consult Natural England because the application was not at a size or scale that required consultation. It referred to Natural England’s standard advice;
• the development site was within a high-risk coal mine designation. It consulted the Coal Authority and its Environmental Health team. It approved two relevant conditions to ensure the development could address ground constraints;
• it consulted the Highways Authority and it did not object. Parking and access arrangements were sufficient to service the development;
• it made references to a planning application in the planning history section in error and had no bearing on the application or the decision;
• the trees removed were not typically of high value and the trees were not protected by a TPO and were outside of the application site. The removal of the trees was subject to a separate discussion with the Council’s landscape team. The development proposed new trees at the front of the site; and
• its Statement of Community Involvement (SCI) outlined the Council’s policy on public consultation. Section 6 set out how it would involve the community in planning applications which said: “applications are published by the display of a site notice or letters written to adjoining neighbours”. The Council said the policy only required one of the identified publicity measures, not both, and although this was close to the Christmas period the timeframe for public consultation was set by the validation date; and
• the development site was not designated as open space, it was unallocated in the Local Plan and would be viewed as incidental open space.
26. A section 73 application was submitted in early 2025 to amend the location of a building. It meant the front elevation would be in line with neighbouring properties. The application also referred to removing reference to unprotected trees within the tree protection plan, which had been removed. The majority of the trees were in the blue line boundary and not the red lined boundary, which indicated the applicant owned the parcel of land.
27. Mr X remained concerned, he was not satisfied with the Council’s stage one response and escalated his complaint to stage two of the Council’s complaints process. He added the trees were removed to make space for a temporary static caravan under permitted development, despite no justification for the removal which were removed in March 2025 in the bird nesting season contrary to the ecologists report. Mr X said the removal took place before the section 73 decision was made. Mr X also said the developer had no right of access to a private road, exacerbating security concerns of elderly neighbours.
28. In mid-April 2025 the Council responded to Mr X at stage two of its complaints process. It said there were no significant procedural errors or inconsistencies that would have affected the planning decision. It was satisfied the planning application was reviewed in accordance with national policy and other relevant policies. It acknowledged consultation with the Parks and Open Spaces Team and seeking further ecological advice could have been of assistance but was satisfied it did not have a detrimental impact in determining the planning application. The Council did not uphold Mr X’s complaint and gave him the Ombudsman’s contact details.
29. Mr X remained unhappy and complained to us.
30. A few days later the Council approved the section 73 application. This related to positioning of the new development to be in line with a neighbouring property and tree removal. The case officer report noted the majority of the trees fell within the blue line boundary (which indicated the applicant owned the parcel of land), rather than the red line boundary (which indicated the application site boundary).

My findings

31. 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, or ask whether it could have done things better or differently. Instead, we look at whether there was fault in how it made its decision, and we consider if any fault we may find is likely to have affected the planning outcome, or caused the complainant a significant injustice. In other words, we will only pursue a complaint if there is clear evidence of fault in the way a decision was made which, but for that fault, is likely to have led to a substantively different decision or outcome for the complainant.

Residential Amenity

32. Mr X’s family home is over 25 metres away from the side of the new development. Officers conducted site visits so would have been aware of the character and appearance of the surrounding area, with the officer’s report noting the variation in levels. The officer’s report summarised the objections received about the application.
33. The officer’s report assessed the impact of the proposal on: ‘Character and appearance’ (including the building line and the mixed built form), ‘Residential Amenity' and notes the design was in accordance with the Local Plan design policy. The section 73 application also approved a change in position of the development to be in line with a neighbouring property. Fencing and landscaping were also considered and the Council said further landscape conditions were not appropriate or reasonable. Officers were entitled to use their professional judgement when assessing these material considerations, even if Mr X disagreed with the conclusions reached. The Council was not at fault in its actions.

Environmental concerns

34. The officer’s report assessed the impact of the proposal on nature conservation and trees, taking into account the associated supporting documents submitted by the applicant.
35. The environmental concerns were addressed by the Council and any consultation responses for previous applications on the site were no longer applicable. The Council did not have an ecologist in post when the application was determined and it was entitled to consider a report commissioned by the applicants independent ecological expert. The Parks and Open Spaces team were not consulted but had been on the section 73 application. The Council said not consulting its Parks and Open Spaces officer or an internal ecologist did not have a detrimental affect on the decision. Officers were entitled to use their professional judgement when assessing these material considerations, even if Mr X disagreed with the conclusions reached.
36. I understand trees were subsequently removed by the developer which were not subject to a tree protection order, and were not within the red line boundary of the application site, and so fell outside the planning control of the Council. The Council has now approved a section 73 application for the removal of the trees which was an approach it was entitled to make. The Council was not at fault in its actions.

Historic decisions

37. Each application must be determined on its own merits, in accordance with the planning policies which prevail at the time, unless material considerations suggest otherwise. So, issues raised in historic applications or enforcement cases are unlikely to carry significant weight when determining a planning application in 2024 and 2025. I also note the Council said the land in question had no ‘open space’ designation in terms of planning policy and was unallocated in the Council’s Local Plan. The Council was not at fault in its actions.

Consultation

38. The Council sent notification letters to adjoining properties, which is in accordance with the Council’s SCI, and Mr X and his family were able to submit their objections. The Council was not at fault with who it consulted.
39. The Coal Authority and Environmental Health team were consulted. The case officers report considered the impact of the development on ground conditions, and associated conditions were attached to the permission. The Council acted appropriately in relation to Mr X’s subsidence concerns.
40. The Highways Authority was consulted and raised no objections to the parking subject to the use of a condition. The Council acted appropriately.
41. The Council did not consult Natural England. It was not required to because the application was not at a size or scale that required consultation. Natural England’s standard advice was referred to which was appropriate.

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Decision

42. I have completed my investigation finding no fault.

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Investigator's decision on behalf of the Ombudsman