Summary
Mr X complains about the Council’s grant of planning permission for a neighbour which he says could affect his trees and the amenity of his home. We will not investigate this complaint because there is no evidence of fault by the Council. Any physical effect construction might have on the trees would separately be a matter for conservation area restrictions or private law between the adjoining land owners.
The complaint
Mr X complains about the Council’s grant of planning permission for a neighbour which could affect the amenity of his home, especially from dormer windows in a new roof form, and from potential harm to his trees by construction work.
The Ombudsman’s role and powers
The Ombudsman investigates 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. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
I considered the complainant’s comments on my draft decision.
My assessment
Mr X’s neighbour applied for planning permission to build an extension in 2021. Mr X objected, principally because he said proposed roof dormer windows would affect the amenity of his home and the conservation area, and the nearness of development to his trees near the boundary would mean construction of the foundations would damage the tree roots.
The Council officer’s report on the proposal shows it considered the likely effect on the amenity of Mr X’s home and garden, including from new roof dormers facing his garden. It also shows the Council considered Mr X’s objections, but it was entitled to decided they did not outweigh other factors in the application.
Mr X says there are no dormer windows anywhere else in the conservation area so they would not be in keeping with the character of the area. But satellite images of the area online show there is at least one nearby property with dormer windows in the roof.
Council policy sets out what it will normally approve for new dormer windows, but policy cannot by law fetter the Council’s discretion to approve something different. The Council had to consider whether the proposal was acceptable in planning terms, including whether it would cause demonstrable harm to the character or appearance of the conservation area. It was entitled to decide the proposal was acceptable even if Mr X disagrees.
The Planning Officer noted Mr X’s trees were not protected by Tree Preservation Orders, but decided the new extension would not come closer to the boundary than the existing conservatory (which was to be demolished), so there would be no significant effect on them in planning terms to warrant refusal of planning permission.
I recognise Mr X fears construction work would damage his trees physically, but: Anyone proposing work to trees in a conservation area, such as branch or root lopping, must give the Council notice so it has the opportunity to consider whether to make a Tree Preservation Order and, if necessary, prevent work it would consider unacceptable. The planning permission in this case did not approve work to any trees (because none was proposed), so the developer would still have to comply with conservation area law before doing anything to affect Mr X’s trees.
It is also the case Mr X’s tree branches and roots overhang or encroach on or in the neighbour’s land, so (subject to conservation area law) the neighbour would normally be able to lop or cut them under common law. Any damage the neighbour might cause to the tree would be a private law matter between the adjoining land owners, not a planning matter.
Ultimately Mr X's dissatisfaction lies with the Council granting planning permission but without evidence of fault having affected that decision, the Ombudsman cannot criticise the Council's decision itself.
Final decision
We will not investigate this complaint because there is not enough evidence of fault by the Council and we cannot therefore question the decision to grant planning permission.
Investigator's decision on behalf of the Ombudsman