Advice - planning permission/ enforcement - what can you do when council will not act?

fredflintstone10

Looking for urgent advice for a ex-neighbour (Dave) who moved to a different area a few years ago who has been being given the runaround by a planning department for nearly two years now regarding illegal tree felling and a neighbours planning permission application. If passed this permission will result in a large reduction in the amount in the value of his home.
Dave lives in a conservation area next to a pub that is seeking to build a large extension. Nearly two years ago and to "assist" with a subsequent application the pub landlord illegally cut down a huge, protected 30 metre high tree bang in the middle of the proposed development site and significant amounts of hedging. The relevant enforcement department were very slow but eventually told the landlord to replace the tree with a like for like replacement. The landlord gave excuse after excuse for delays. The department did little to enforce so eventually Dave had to involve a third party to accelerate the issue and the lanndlord has now been told to replace the trees and that this will be checked in January 2019. The landlord has in the last week now replaced the 30 metre tree with a 3 metre sapling planted 100 feet from where the old tree was and away from the site the subject of the planning application so nothing like they were told to do.
In the meantime the pub has put in three applications for a pub extension and I understand they have been declined due to the size of the extension each time rather than the tree issue. Each time an application has been submitted the size of the proposed extension has been slightly decreased. Despite many objections from local people it appears that the council still want to deal with this application by delegated authority and not put it up for discussion at a planning committee.
The planners have told Dave that as part of the planning decision they are not taking into account the position of the protected tree which the planning applicant illegally cut down and has been told to replant as it is not there! Surely this cannot be right??? In answer to the fact that it has taken nearly two years to get any tree replanted and now a miniature one has been replanted in the wrong place the tree enforcement people have said they are not able to enforce anything on land the subject of a planning application - which sounds like nonsense. Rather than promptly coming to check out the new tree (wrong size and position) they have not come to inspect and have said there is nothing they can do to enforce this while the land is the subject of a planning application.
Dave is finding it hard to get any sensible response from the planning department or the tree enforcement department at his council. They also do not seem to be speaking to each other and each seem to be replying on the other to skirt round the issue that a huge protected tree has been illegally cut down to assist with obtaining the planning permission. The planning decision is due in less than 2 weeks. Dave cannot even get agreement that this application should go to Planning Committee and he is concerned that this is going to be passed due to the ineptitude and apathy of these departments who do not seem to be fulfilling their proper roles.

Time is running out. Does anyone have any advice what he can do at this stage as once the permission is passed I think he has very little rights. The council does not seem to be doing its job properly and if this results in financial loss in the value to his property does he have any comeback at all? Of course that is the worst case scenario. He rather wants to stop the permission being granted at all and to make these departments talk to each other sensibly. It cannot be right that somebody can deliberately cut down a protected tree and replace it with a smaller tree in a different position with a view to getting a planning permission. This seems like an absolute abuse of the system

Tom99

[FONT=Verdana, sans-serif]My understanding is that councilor members of the Planning Committee have a right to call for any particular planning application to be put before them.[/FONT]
[FONT=Verdana, sans-serif]Have you engaged with anyone on the Planning Committee before now?[/FONT]
[FONT=Verdana, sans-serif]Usually the Council website will list the members of the Committee and their contact details.[/FONT]
[FONT=Verdana, sans-serif]Email all of them, pointing out the full reasons for your concern and the reasons why you think this is a decision the Committee should have the opportunity to vote on, rather than leaving it to the delegated authority granted to the Planning Officer[/FONT]

AdrianC

fredflintstone10 wrote: »

In the meantime the pub has put in three applications for a pub extension and I understand they have been declined due to the size of the extension each time rather than the tree issue. Each time an application has been submitted the size of the proposed extension has been slightly decreased. Despite many objections from local people it appears that the council still want to deal with this application by delegated authority and not put it up for discussion at a planning committee.

If the planning officer is routinely refusing the application under delegated authority, why is Dave bothered about whether it goes to the committee or not?

The planners have told Dave that as part of the planning decision they are not taking into account the position of the protected tree which the planning applicant illegally cut down and has been told to replant as it is not there! Surely this cannot be right???

Yes, it is.
The breach of the TPO is separate to the planning app.
Whether the pub landlord has planted another tree somewhere else, no matter how nice, is irrelevant when they assess whether he's met the TPO restitution requirement or not. As yet, it doesn't sound like he has.

the tree enforcement people have said they are not able to enforce anything on land the subject of a planning application - which sounds like nonsense. Rather than promptly coming to check out the new tree (wrong size and position) they have not come to inspect and have said there is nothing they can do to enforce this while the land is the subject of a planning application.

While the application's open, no enforcement can be carried out. This is true.

The planning decision is due in less than 2 weeks. Dave cannot even get agreement that this application should go to Planning Committee and he is concerned that this is going to be passed due to the ineptitude and apathy of these departments who do not seem to be fulfilling their proper roles.

Yet it's been rejected multiple times already. What indication is there that this will change this time?
If it is granted, does Dave plan to appeal?

...once the permission is passed I think he has very little rights. The council does not seem to be doing its job properly and if this results in financial loss in the value to his property does he have any comeback at all?

No. Any theoretical effect on neighbouring property values is not part of the planning decision process.

It sounds as if the council IS doing its job properly. They are enforcing the breach of the TPO, and the planning app has been considered and rejected repeatedly. What more does Dave want?

Tom99

AdrianC wrote: »

Yet it's been rejected multiple times already. What indication is there that this will change this time?
If it is granted, does Dave plan to appeal?

There is no appeal possible against the granting of consent only refusal.

da_rule

When you say the tree was protected, was it protected by virtue of being subject to a TPO within a conservation area or just by virtue of being in a conservation area? The enforcement and consent provisions are slightly different.

The presence of a protected tree is a planning consideration, however it’s potnetially not a high priority one. Also, planning consent trumps a protected tree. Therefore if planning consent is granted, it enables you to do all works to a protected tree, without further consent, that are reasonably required for implementing the planning consent. Therefore if a protected tree is in the middle of a proposed building then the tree can be felled. Planning conditions, such as replacement conditions, would often address this.

What is Dave actually doing? Is he lodging objections to the planning applications citing material planning considerations? Loss of value is not a material planning consideration. He can raise the fact that the protected tree hasn’t been re-planted in the correct place and ask the application be considered on the basis that the tree was in the correct place.

In terms of authority, there are normally 3 ways a matter goes before a planning committee:
1) The head of planning (or a planning officer) decides that it should;
2) A councillor calls it in (usually a ward councillor for the area or a member of the planning committee);
3) A parish/town or other subordinate council asks for it to be called in.

It may be, that despite the impact it’ll have on Dave, it’s just not that big of a deal to the Council. Councils with conservation and heritage areas etc in their boundaries are usually well versed in law and the relevant planning policies for dealing with applications in these areas. This knowledge generally lies with the officers, who would be the ones to advise and make recommendations to the planning committee.

da_rule

Tom99 wrote: »

There is no appeal possible against the granting of consent only refusal.

Not strictly true. An interested party can apply for judicial review of the grant of a planning consent where the planning authority have acted unreasonably or erred in law in granting it.

If successful the High Court may order that the consent is set aside.

This can be quite expensive and is a specialist area of law and there are strict time limits for making such applications.

Tom99

da_rule wrote: »

Not strictly true. An interested party can apply for judicial review of the grant of a planning consent where the planning authority have acted unreasonably or erred in law in granting it.

If successful the High Court may order that the consent is set aside.

This can be quite expensive and is a specialist area of law and there are strict time limits for making such applications.

[FONT=Verdana, sans-serif]You are correct that the interested party could instigate a judicial review but that is not an appeal as such against the granting of consent.[/FONT]
[FONT=Verdana, sans-serif]It is also hugely expensive.[/FONT]
[FONT=Verdana, sans-serif]The judicial review is not a re-run on the merits of the decision but a challenge to the lawfulness of the decision that was made. [/FONT]
[FONT=Verdana, sans-serif]You would have to work out where the Planning Authority failed in law or acted unreasonably during the application process, not just claim that it was a bad decision and should have been refused.[/FONT]

G_M

Is Dave acting alone?
Are other local residents concerned? Involved?
Is there a Conservation Area Advisory Panel? Have panel members been approached/ involved?
Have local councillors been approached/ involved?
Has Dave sought / taken professional advice?

fredflintstone10

Thank you so much for all your knowledgeable and helpful reponses. I am afraid I cannot answer all questions asked but will answer what I can and try to get answers for those I do not know.

Dave has got other neighbours involved - I believe there have been over 100+ objections to the previous applications.

Judicial review is not really realistic in most normal cases - costs are huge and most people do not have tens or hundreds of thousands of pounds to undertake such a thing.

I believe that they are waiting for the Councilor member of the Planning Committee they have been speaking to to commit to ask for it to go to the Planning Committee.I think they should press him on this and raise it with any other council member they can find.

In answer to AdrianC's questions:
"If the planning officer is routinely refusing the application under delegated authority, why is Dave bothered about whether it goes to the committee or not?"
The previous applications have been declined due to size etc - if repeated applications are put in for smaller size eventually one will satisfy requirements and get passed without a full discussion of impact on community, the fact that a tree was illegally removed to make way for the extension. These sort of things need to be discussed in public. This will not happen under delegated authority.
I do not understand your comment:
"Yes, it is.
The breach of the TPO is separate to the planning app.
Whether the pub landlord has planted another tree somewhere else, no matter how nice, is irrelevant when they assess whether he's met the TPO restitution requirement or not. As yet, it doesn't sound like he has."
I understand that the breach of a TPO is separate to the planning app. My point was how can a planning application ignore the fact that there SHOULD be something in the middle of the proposed site that is protected that has been illegally removed? Would it not be similar to the situation where someone puts an application in for a block of flats on a piece of land that had a grade 1 listed buiding on it that was illegally knocked down and the planner then assessed the application purely on the merits of a block of flats and not on the fact there should be a protected building there? If that is the case in that scenario once the planning was passed how would you ever get the listed building back once a block of flats was given permission to be built?
"While the application's open, no enforcement can be carried out. This is true."
Why? You have just said that they are 2 different things - why can the TPO not be enforced? In this scenario the repeated planning applications on top of the lethargy of council to deal has meant that the enforcement to put the tree back has taken nearly 20 months.
"Yet it's been rejected multiple times already. What indication is there that this will change this time?"
Each time the size of the proposed extension is deceased to ultimately get council approval.
"They are enforcing the breach of the TPO, and the planning app has been considered and rejected repeatedly. "
Ultimately it will be passed though if the size of the extension is the show stopper. Dave wants them to consider the illegal tree felling. If the tree had not been illegally felled Dave believes they would be less likely to pass the application.

Da_rule I am not 100% sure but I believe that the tree is protected just by virtue of being in a conservation area rather than teh subject of a TPO? I understand your point here: "The presence of a protected tree is a planning consideration, however it’s potnetially not a high priority one. Also, planning consent trumps a protected tree. Therefore if planning consent is granted, it enables you to do all works to a protected tree, without further consent, that are reasonably required for implementing the planning consent. Therefore if a protected tree is in the middle of a proposed building then the tree can be felled. Planning conditions, such as replacement conditions, would often address this." However in this case this has been done illegally in advance. Does that make any difference?

Yes Dave and many others have lodged objections to the planning applications citing material planning considerations. You say that "Yes he can raise the fact that the protected tree hasn’t been re-planted in the correct place and ask the application be considered on the basis that the tree was in the correct place". However to date in previous applications planning does not even seem to want to take into account that there is a missing protected tree!
Thank you for your points on the planning authority - I will pass this onto Dave and they need to get on to the councillors immediately!.

da_rule

If the tree is therefore only protected by virtue of being in a conservation area, is everyone completely sure that the land owner didn’t serve the 6 weeks notice on the Council?

If the notice was served and the Council didn’t put a TPO on the tree then you can lawfully do the works you applied to do.

The previous conduct of an applicant is not a material planning consideration. Also, the harsh reality may be that the Council realise that eventually he will submit a plan that is acceptable and they will grant permission, which would result in the loss of the tree. Therefore, from a pragmatic point of view it may be better to have a new tree planted, in a different location, than have nothing at all.

If the planning authority don’t want to take the missing tree into consideration then, other than launching a statutory challenge under section 288 of the Town and Country Planning Act, after the permission is granted there seems little else Dave can do (other than get Councillors involved).

Given the passage of time, the Council are also somewhat tied as they only have 6 months from discovering the offence to commence criminal proceedings. So they would have had 6 from the time they found out that the tree had been felled (if this was done without consent - either expressly or implicitly under the Act) and a further 6 months from discovering the breach of the order to replace to bring an action. Seeing as this has been rumbling on for a number of years it seems that these deadlines may have passed.

Rather than speaking to the councillor who chairs the planning committee, get Dave/as many others as possible to speak to their local ward councillor. The ward councillor can call in an application and is more likely to as it’s the people in their ward that vote for them and keep them in office.

fredflintstone10

Hi again. Yes absolutely the land owner served no notice, they just cut the tree down. This is why the council told the landowner to put back a similar tree but have been very remiss at enforcing this.

I note your comment that the previous conduct of an applicant is not a material planning consideration. It does seem off and unfaor to me that an applicant can illegally do something to support the application and not be penalised for it. I also take on board your comment that " the harsh reality may be that the Council realise that eventually he will submit a plan that is acceptable and they will grant permission, which would result in the loss of the tree. Therefore, from a pragmatic point of view it may be better to have a new tree planted, in a different location, than have nothing at all." I suspect this could be the case but it is not the council applying the law as they should be.

I will check if an action has been started under section 288 of the Town and Country Planning Act as I know the neighbours have been trying to do something. I wil also reiterate about getting councillors, and particulary ward councillors, involved.

Thank you so much for your reply.