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St Helens Metropolitan Borough Council (05C01218)

Trees                                              Maladministration, but no injustice

25 September 2006

St Helens Metropolitan Borough Council made a tree preservation order (TPO) affecting five trees on ‘Mr North’s’ (not his real name for legal reasons) property in June 2003. The letter notifying Mr North was misaddressed and, as a result, he did not receive it until he returned from his holiday on 1 August. This was three days after the closing date for objections to be made by the Council. The Order remained in force until 26 December 2005 or until it was confirmed. The Council’s Trees and Woodlands Officer took maternity leave and a colleague took over her duties temporarily. The Council confirmed the TPO on 8 December. The law says that Mr North should have been notified “as soon as is practicable”. Case law has established that this means that action must be taken as soon as is reasonably feasible. The officer who was temporarily covering the work did not know this. The law says that any challenge to a confirmed TPO must be made in the High Court within six weeks of the confirmation.

On 24 December Mr North tried unsuccessfully to contact the Council to find out what had happened about the TPO. The Council offices were closed for the Christmas holidays from 24 December to 5 January. On 27 December the trees were removed. Council officers were notified by Mr North and others and visited the property with a notice confirming the TPO. This meant that Mr North had only two of the six weeks allowed by the law to challenge the confirmation of the TPO. Mr North was prosecuted by the Council, convicted, fined and ordered to pay the Council’s costs. Case law established that ignorance of a TPO is not a defence.

The Local Government Ombudsman does not have jurisdiction over complaints that relate to “The commencement or conduct of civil or criminal proceedings before any court of law”, and so could not look at the prosecution itself.

The Ombudsman finds that there was maladministration by the Council in that:

  • it did not have a procedure to ensure that notices were issues as soon as practicable;
  • the officer temporarily covering the work was not aware of the requirements of the law.

The timescales set out by the law and the fact that case law has established that ignorance of a TPO is no defence if prosecuted means that such maladministration could have serious consequences. In the particular case of Mr North there was no injustice because he was aware of the possibility of the TPO being confirmed and proceeded to remove the trees without establishing whether it had been.

The Ombudsman said: “This report illustrates the importance of Council’s having clear procedures and making proper arrangements to cover the work of specialist officers during prolonged periods of absence.”

Date Updated: 30/01/09