Summary: We will not investigate this complaint about the Council failing to consider the requirements of the Hedgerow Regulations 1997 when determining a planning application, and its handling of the subsequent complaint. There is insufficient evidence to conclude the complainant has been caused a significant personal injustice as a direct result of the Council’s actions.

The complaint

1. Mr X complains the Council failed to follow the Hedgerow Removal Notice (HRN) process (as detailed in the Hedgerow Regulations 1997), when determining a planning application for a residential development. In particular, no assessment of the hedgerow’s historical “importance” was carried out, and no arboricultural officer was consulted. Mr X is also unhappy about the Council’s subsequent handling of the omission once it had been brought to its attention.
2. Mr X says this has caused him significant frustration, stress and loss of confidence in the fairness of the planning system.

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The Ombudsman’s role and powers

3. We can 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. So, we do not start an investigation if we decide:

• 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.

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

4. With regard to the first two bullet points above, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the Council. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures.

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How I considered this complaint

5. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• information about the planning application, as available on the Council’s website.
• the Ombudsman’s Assessment Code.
• Mr X’s comments on an earlier version of this statement.

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My assessment

6. In responding to Mr X’s complaint, the Council accepts that, whilst the loss of the hedgerow is given negative weight in the delegated report and its ecological value was considered, the arboricultural officer was not consulted and an assessment of the hedge’s historical value was not evident in the report. As a result, the Council says it is reviewing its procedures for the assessment of applications which involve the loss of important hedges.
7. However, having reviewed the case with senior ecology and arboricultural officers, the Council says it is satisfied these procedural points are unlikely to have affected the outcome. This is because although the proposal results in a loss of some hedgerow to enable access to the development, it retains the hedgerow along the rest of the site frontage, which it says is not uncommon for this type of development, and mitigation is achieved through biodiversity net gain and the landscaping scheme. It also particularly notes the strong presumption in favour of housing development due to the lack of a 5-year supply of housing land.
8. Before the Ombudsman starts an investigation, we need to be satisfied the individual complainant was caused a significant injustice by the Council’s actions. In the context of a complaint like this, it means we will normally 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 different decision or a better outcome for the complainant.
9. On balance, and taking into account the considerations highlighted by the Council (see paragraph 7 above) I am not persuaded the outcome would have been different if the Council had carried out an HRN assessment when determining the planning application.
10. I am also mindful that the section of hedge to be removed is located approximately 60m away from Mr X’s rear garden boundary, on a different road, so he does not appear to be significantly affected by the loss of the hedge itself.
11. I appreciate Mr X might feel aggrieved by the lost opportunity for an HRN assessment to be undertaken, and by the Council’s subsequent complaint responses. But, given that the outcome is likely to have been the same and the loss of the hedge does not directly impact Mr X, the level of injustice caused is not, from the Ombudsman’s perspective, significant enough to justify starting an investigation. Any time and effort Mr X put into pursuing this procedural issue/point was of his own choosing, rather than something which inevitably flowed as a direct consequence of the loss of hedge.
12. The Ombudsman will therefore not investigate Mr X’s complaint, as any injustice caused by the alleged faults is not significant enough to warrant our continued involvement in the matter.

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Final decision

13. We will not investigate Mr X’s complaint because there is insufficient evidence to conclude he has been caused a significant personal injustice as a direct result of the Council’s actions.

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Investigator's decision on behalf of the Ombudsman