Summary: X complained about the Council’s decision not to take enforcement action against a landowner, who is alleged to have unlawfully felled trees protected by a Tree Preservation Order. We completed our investigation because we found no fault in the way the Council made its decision.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained about the Council’s decision not to take planning enforcement action against a landowner who is alleged to have felled trees in breach of a Tree Preservation Order (TPO).
3. X said that if the Council had acted sooner, it might have been possible to take formal action.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
5. 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 provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

6. The Ombudsman’s powers are subject to time limits. We do not normally investigate matters unless they are brought to our attention within 12-months from when events occurred, or the complainant could have known about them. We have discretion to go back beyond this limit but would need a good reason to do so.
7. We should not investigate late complaints or complaints that relate to matters that occurred long ago, unless:
• we are confident that there is a realistic prospect of reaching a sound, fair, and meaningful decision; and
• we are satisfied that the complainant could not reasonably be expected to have complained sooner.
8. I do not intend to investigate matters that happened before June 2023, which is 12 months before X brought their complaint to the Ombudsman. This includes X’s allegation that the Council’s enforcement investigation took too long. This is because X could have come to us earlier.
9. I have investigated the decision made by the Council in January 2024 not to prosecute the landowner for breach of a TPO.

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How I considered this complaint

10. I read the complaint and discussed it with X. I read the Council’s response to the complaint, documents from its planning files, including two TPOs (1960 and 2024), reports and emails from a Tree Officer, and an email to X from the Council which explains its decision not to prosecute.
11. I also read documents the Council sent me and which it has asked me not to share. These are counsel’s legal advice, which benefits from legal privilege, and a report prepared for a third party with related documents which the Council has no permission to share.
12. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Tree Preservation Orders

13. 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.
14. 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 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.
15. As planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

16. Several years ago, X and other residents complained to the Council that a landowner had felled trees covered by a TPO made in 1960 without seeking the Council’s permission. The Council considered the allegation and decided it could only take enforcement action for those trees that existed when the 1960 TPO was made.
17. In the summer of 2022, the Council’s tree officer visited the site and took photos and measurements of tree stumps. About 6 months later, the tree officer returned to estimate the age of the trees. The landowner replanted trees in the area where trees had been felled.
18. The Council considered the tree officer’s advice and then decided to seek advice from independent legal counsel. The Council wanted counsel’s opinion on:
• the evidence it had collected;
• the scope of enforcement action it might take; and
• whether prosecution was in the public interest and likely to succeed.
19. The independent legal counsel wrote a report setting out relevant law and their advice to the Council.
20. The Council considered this report and in January 2024 it decided not to take enforcement action against the landowner because it would not be in the public interest.
21. The Council wrote to X and explained, in general terms, the decision it had made and its reasons. X was unhappy with the Council’s decision and complained to the Ombudsman. X believes that the Council’s decision was:
• irrational and wrong;
• based on inadequate evidence; and
• the investigation had taken too long.
22. X would like the Council to reverse its decision.

X’s response to draft decision

23. Before writing this decision statement, I sent a draft copy to X and the Council and invited them to comment.
24. X said my decision to limit my investigation to events since June 2023 was illogical and irrational. X said they could not have reasonably brought their complaint to our attention any sooner because the Council asked them not to. The Council strongly denies this.
25. X said they provided proof in aerial photographs which showed the felled trees existed when the first TPO was imposed.

My findings

26. We are not a planning appeal body. Our role is to review the process by which planning decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant or that could cause an injustice to others in the future.
27. Before it made its decision not to take enforcement action, the Council considered the allegation, its legal powers, the advice from its tree officer and from independent counsel. This is the decision-making process we would expect.
28. After reading the documents, I found no evidence that supports X’s claim that the decision was irrational.
29. I found no fault in the way the Council made its decision not to take formal enforcement action.
30. I considered X’s comments in response to an earlier draft of this decision, but they did not change my view of the complaint. This is because:
• Even if the Council had made a request to X not complain sooner, he could have complained earlier and chose not to do so.
• Even if I exercised discretion to investigate events that happened in the years leading up to June 2023, I would not be able to show on balance of probabilities that the outcome would have been different. The Council acted on independent legal advice, and I have seen nothing that suggests the Council’s decision would have been different if the advice had been sought earlier.
• I know X strongly believes the evidence they submitted is persuasive. However, we are not an appeal body, and it is not our role to evaluate evidence to make planning enforcement decisions.

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Final decision

31. I completed my investigation because I found no fault in the way the Council made its decision.

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Investigator's decision on behalf of the Ombudsman