Summary: We will not investigate this complaint about the Council allegedly failing to ensure trees which were poisoned over ten years ago are replaced and replanted. He also says the Council has failed to take enforcement action against the rejection of a mobile home on the same land. The issues raised in respect of the trees are historical and it is not the role of the Ombudsman to investigate these. There is also insufficient evidence of fault by the Council with respect to its power to enforcement action for breach of planning law.

The complaint

1. The complainant (Mr Q) complains the Council failed to apply planning conditions in 2012 that required trees to be replanted which had been poisoned and removed. Further, Mr Q says the Council has failed to take enforcement action against a mobile home being erected on the land which breaches planning law.
2. In summary, Mr Q says the alleged fault and disregard for the law by the Council has caused harm to an area he is associated with. As a desired outcome, he wants the Council to ensure trees are replanted and replaced in the same location. He also says wants the Council to take enforcement action.

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The Ombudsman’s role and powers

3. 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
• any injustice is not significant enough to justify our involvement; or
• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome; or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

4. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

Tree complaint

5. The complaint issues raised by Mr Q are historical and date back to earlier than 2012. It is not the role of the Ombudsman to investigate historical issues. In my view, given the passage of time, there would be practical challenges now trying to ascertain evidence, assess fault and injustice in order to reach a robust and meaningful decision and outcome. There are therefore no good reasons for us to exercise our discretion and investigate. In any event, the Council has confirmed it intends to replant and replace the trees in the area. There is therefore insufficient injustice to the complainant to warrant investigation. It is also unlikely that investigation would lead to a different outcome.

Planning enforcement complaint

6. Separately, there is a more recent issue of a mobile home being erected in an area which Mr Q says contravenes planning requirements. The Council says it considers the mobile home does constitute a breach and that it is looking to take enforcement action. The Council says it sent a request to the responsible person that the mobile home be removed. It has since confirmed it is considering what other action to take given its request had not complied with.
7. The Council is not under any legal duty to take enforcement action in response to a breach of planning control, even where a breach has been clearly determined. The law says a local authority may take enforcement action in response to a breach where it considers it expedient to do so. Therefore, enforcement action is a discretionary power of the Council. I cannot therefore find fault with a decision to not take formal enforcement action in circumstances where the Council has properly considered alleged breaches and its powers to take action. In this case, the Council has considered its powers to take action which led to it requesting the removal of the mobile home. Given this request was not complied with, it is considering what further action to take. The Councill’s actions are consistent with what the law requires and I see no evidence of fault to warrant an investigation.

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Final decision

8. We will not investigate this complaint. This is because the restrictions I outline at paragraph three (above) apply.

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Investigator's decision on behalf of the Ombudsman