Summary: Mrs X complains the Council did not take enforcement action following her report of a tree preservation order breach. She also complains about the Council poor communication. We do not find the Council at fault.

The complaint

1. Mrs X complains about the Council’s decision not to take enforcement action following her report of a tree preservation order breach. She also complains about the Council’s poor communication.
2. Mrs X says this caused her significant distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. I considered the information and documents provided by Mrs X and the Council. Mrs X and the Council had an opportunity to comment on a draft of this decision. I have considered all comments received before making a final decision.
6. I also considered the relevant statutory guidance as set out below.

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What I found

What should have happened

7. 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.

8. 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.
9. Councils can take enforcement action if they find planning rules have been breached. However, councils should not take enforcement action just because there has been a breach of planning control.
10. Planning enforcement is discretionary and formal action should happen only when it would be a proportionate response to the breach. When deciding whether to enforce, councils should consider the likely impact of harm to the public and whether they might grant approval if they were to receive an application for the development or use.
11. 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.
12. Government guidance says: “Effective enforcement is important as a means of maintaining public confidence in the planning system. Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.” (National Planning Policy Framework September 2023, paragraph 59)

What happened

13. In Summer 2023, Mrs X’s neighbour applied for planning permission to complete works on a tree in their garden which had a TPO.
14. The works were completed in September.
15. In October, Mrs X told the Council the completed tree works were not consistent with the Council’s approved plans. The Council’s enforcement team considered the alleged breach. Officer A told Mrs X it considered the information she provided and decided it did not warrant taking formal enforcement action. Mrs X disagreed with Officer A’s decision.
16. In January 2024, Officer A visited Mrs X’s property and inspected the tree.
17. In March, the Council told Mrs X that Officer A considered there was not sufficient harm to warrant taking formal enforcement action.
18. In April, Mrs X made a formal complaint.
19. In May, the Council responded to her complaint. It told her it did not uphold her complaint. It explained its decision not to take enforcement action. It explained the process for her to apply to do further works to the tree for safety reasons.
20. Mrs X escalated her complaint to stage two.
21. In mid-June, Officer B visited Mrs X’s property. Officer B agreed the works to the tree were not in accordance with the approved works. Officer B considered there was not sufficient harm to warrant taking formal enforcement action. Officer B took informal action. They wrote to the applicants with the Council’s concerns and instructions about any plans to complete future works to the tree.
22. In July, the Council responded to Mrs X’s stage two complaint. It apologised to Mrs X for its unclear description of the approved works. It accepted this meant its approval did not give adequate restrictions to the works. It told her that despite this, there was not sufficient harm to warrant taking formal enforcement action.

Analysis

Enforcement

23. The Council accepts its description of the approved works were not clear enough. It says it has increased resources and reminded its staff to describe approved works in clear detail. I am satisfied it has taken action to prevent recurrence and improve its tree works decisions in future. I do not consider this error to be significant enough to make a finding of fault with the Council. Mrs X also told me the tree works were no longer the main cause of her distress, and therefore I consider any injustice to Mrs X in relation to this error to be limited.
24. The Council conducted two site visits to Mrs X’s property to inspect the tree works. Planning enforcement is not mandatory in the event of a planning breach. The Council agrees there has been a breach of the planning application and has decided enforcement action is not proportionate. I am satisfied it considered all relevant information in its decision making and therefore I cannot find fault with its decision not to take enforcement action.
25. In any case, the Council told Mrs X she can complete the outstanding works to the tree for the duration of the planning approval time if she wishes.

Communication

26. Mrs X complains about the Council’s delays responding to her correspondence. She said waiting two months for an update after the first site visit in January 2024 was unreasonable. I am satisfied two months was a reasonable response time in this instance. It is up to the Council to prioritise its resources.
27. Mrs X complains the Council has not listened to her concerns. She also complains about the quality of information in its correspondence with her. The information I have seen shows the Council took Mrs X’s reports seriously by organising two site visits and responded to her complaints thoroughly. Mrs X continued to contact the Council after receiving its stage two response. The information I have seen shows the Council responded on five occasions and offered her clarification and then signposted her to the Ombudsman. I do not find fault with the Council’s communication with Mrs X.

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Final decision

28. I have completed my investigation. I find no fault with the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman