Summary: We will not investigate this complaint about the way the Council placed a Tree Preservation Order on a tree on her property. And that the Council failed to provide information requested. There is not enough evidence of fault in the way the Council dealt with the application. We cannot achieve the outcome the complainant is seeking. And it is reasonable to expect the complainant to ask the Information Commissioner’s Office to consider her concerns about failure to provide information.

The complaint

1. Mrs X complains the Council placed a Tree Preservation Order (TPO) on a tree on her property based on false information. She also says the Council has lied to her and failed to provide information.
2. Mrs X wants the Council to remove the TPO and provide the information she is seeking.

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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
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

5. I considered information provided by Mrs X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Ombudsman cannot achieve the outcome Mrs X wants. Mrs X can apply to the Council to carry out work on her tree. If the Council refuses the application, she will have a right of appeal to the planning inspector who has the power to overrule the Council’s decision.
8. Mrs X also had a right of appeal to the High Court, on a point of law, against the Council’s decision to confirm the tree preservation order. Matters which could be raised at court are outside the Ombudsman’s jurisdiction (see paragraph 3 and 4). I consider it reasonable for Mrs X to have used his legal remedy if she wanted to challenge procedural matters or argue that the process was based on false information.

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Final decision

9. We will not investigate Mrs X’s complaint. Having received information concerning the tree on Mrs X’s home, the Council followed the correct procedure in inspecting the tree, serving a temporary TPO and then confirming the TPO. Mrs X was able to object to the confirmation of the TPO. She also had a right to appeal to the court on a point of law.
10. We cannot require the Council to remove the TPO. It is reasonable for Mrs X to apply to the Council for works on the tree. If refused, she will have a right of appeal to the planning inspector which has the power to change the Council’s decision.
11. If Mrs X believes the Council is withholding information which she is entitled to see, it is reasonable to expect her to refer this to the Information Commissioner’s Office (ICO). The ICO has powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.

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Investigator's decision on behalf of the Ombudsman