Summary: Mr X complained about the way the Council dealt with his concerns about a Tree Preservation Order on trees near his home. He said this frustrated him and impacted his amenity. We have ended our investigation. This is because most of the complaint is outside our jurisdiction, and we cannot achieve a worthwhile outcome through an investigation.

The complaint

1. Mr X complained about the way the Council dealt with his concerns about a Tree Preservation Order (TPO) on trees near his home. He said this frustrated him and impacted his amenity.

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The Ombudsman’s role and powers

2. We 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. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

3. If we are satisfied with a Council’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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

7. I read Mr X’s complaint and spoke to him about it on the phone.
8. I considered information provided by Mr X and the Council.
9. 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

Background information

10. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• Cutting down;
• Topping;
• Lopping;
• Uprooting; and
• Willful damage and destruction.
11. Council considerations include things like:
• Tree type and location;
• amenity value;
• type of tree work operations i.e. crown thinning, lifting, or reduction;
• If planting replacement trees is required; and
• The condition of the tree.
12. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days to for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

What happened

13. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
14. Mr X lives in a housing development created in the 1970’s. Prior to the development, in 1970, the Council issued a woodland TPO for the area. The order runs adjacent to Mr X’s property, covering several trees that grow over his property boundary. Mr X said the trees were damaging his property.
15. Mr X applied to the Council to remove a protected tree overgrowing the garden in 2020. The Council rejected the application.
16. Mr X’s representative submitted another application in 2022. The Council decided the work did not need planning permission, as the tree was not in the woodland TPO.
17. Mr X complained to the Council in early 2023. He complained about the Council’s actions regarding the works to tree applications, the woodland TPO and about an officer's actions.
18. The Council allocated an independent officer to review the case. The independent officer recommended the Council do a review and audit of the woodland TPO.
19. The Council responded in December 2023. The response accepted the delayed response, apologised and offered Mr X a financial payment. The Council accepted it did not consider the TPO layer in its record when it considered the 2020 works to tree application. The Council apologised. The Council recognised it should review the woodland TPO and said it was working through all trees covered by TPO’s. The Council said it would not comment on personnel matters.
20. Mr X asked the Council to escalate his complaint to stage two in December 2023.
21. The Council issued its stage two complaint response in January 2024. The response said it would not comment on personnel matters. The Council accepted its error in 2020, but said it was a system error. The Council said it would review the trees in the TPO when resources allowed. The Council repeated its financial remedy offer for the delayed response and error in 2020.
22. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to compensate him and review the trees.
23. In response to my enquiries the Council stated it should reassess the trees in the TPO but it did not have the time and finances to complete the reassessment.

My findings

24. We are not a planning appeal body. This means we do not take a second look at a decision to decide if it was wrong. Our role is to review the process by which planning decisions are made. We look for evidence of fault in the decision-making process. Where we find it, we decide whether it caused a significant injustice to the individual complainant. If we consider the Council followed its processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the Council made.
25. I have not considered the works to tree application from 2020. This falls outside of the timescale of this investigation and the Council acknowledged its error and offered a financial payment to Mr X.
26. Our investigations need to be proportionate. We may consider any fault or injustice to the individual complainant in its wider context, including the significance of any fault we might find and its impact on others, as well as the costs and disruption caused by our investigations.
27. I have ended this investigation for the following reasons:
28. The Council accepted it delayed the complaint response and offered a reasonable remedy for this. An investigation would not add to this response.
29. Any matters about planning applications, have a right of appeal to the planning inspector. If Mr X disagrees with any planning decisions, it is reasonable for him to use this right of appeal.
30. Within Mr X’s complaint, he refers to damage to his property. The Ombudsman cannot consider damage to a property. Mr X would need to address this with the insurance company or through a court.
31. Mr X’s complaint also refers to issues with a Council officer. The Ombudsman cannot consider any matters about personnel issues.
32. Mr X referred to the Council not completing a review of the 1970 woodland TPO. The Ombudsman would not investigate a matter dating from 1970 because the law is clear we consider matters from the previous 12 months.
33. Mr X wanted the Council to complete an audit or review of the trees in the woodland TPO. The Ombudsman could not instruct a Council to complete a review.

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Final decision

34. I have completed my investigation. I have ended my investigation because Mr X had or has rights of appeal to the planning inspector which it is reasonable for him to use. The Ombudsman cannot add to the Council’s response and cannot achieve what Mr X wants.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman