Summary: Mr X complains about the Council’s decision not to seek TPO consent for the removal of trees from a development site close to his home. We will not investigate the complaint because Mr X has already taken court action in relation to the issue and so the complaint falls outside our jurisdiction.

The complaint

1. The complainant, who I refer to as Mr X, disagrees with the Council as to whether an application for consent to remove trees covered by a Tree Protection Order (TPO) is required. Mr X believes it is required because the removal of the trees is not necessary to deliver operational development on site. He says the Council is wrong to say Regulation 14 of the Tree Preservation Regulations 2012 applies, which allows work to TPO trees without consent where necessary to implement a planning permission.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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

5. I considered information provided by Mr X.
6. I considered the Ombudsman’s Assessment Code.
7. I gave Mr X the opportunity to comment on my draft decision and considered what he said.

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My assessment

8. Mr X began legal action by way of judicial review to challenge the Council’s view that the exemption at Regulation 14 applied so that no TPO consent had to be sought for the removal of the trees covered by the planning permission granted for development at a site close to Mr X’s home.
9. Mr X’s complaint to the Ombudsman is about the same matter but as it has already been the subject of legal action, the restriction at paragraph 3 applies and the complaint falls outside our jurisdiction.
10. Even if Mr X argues that his complaint to the Ombudsman is different to matters covered by his request for judicial review, the restriction at paragraph 4 applies because a decision as to the correct legal interpretation of the Regulations is a matter for the courts and not the Ombudsman and having already used the alternative court remedy, we would reasonably expect Mr X to take the matter to court again.

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Final decision

11. We cannot investigate this complaint. This is because Mr X has already taken court action in relation to the issue and so the complaint falls outside our jurisdiction.

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Investigator's decision on behalf of the Ombudsman