Decision : Not upheld
Decision date : 28 Jan 2020
The Ombudsman's final decision:
Summary: Mrs B complains the Council planted a memorial tree next to her late partner’s grave at the request of his estranged sister. Mrs B says the sister adorned the tree with plaques and other items, which caused her distress. The Ombudsman does not find fault in the Council’s decision to plant the tree or in how it responded to Mrs B’s complaint.
- The complainant, who I refer to as Mrs B, complains the Council planted a memorial tree next to her late partner’s grave. Mrs B says the Council planted this tree at the request of her partner’s estranged sister. She says the sister then placed plaques and items on and around the tree, which were distasteful. Mrs B says this caused distress to her and other members of her partner’s family. She complains the Council misled her about the reason for planting the tree and did not properly respond to the concerns she raised. Mrs B asks that the Council remove the tree.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.
What I found
- The cemetery is managed by the Council and has byelaws that govern, among other things, the nature of memorials placed in the cemetery.
- The byelaws say all memorials must be of hard imperishable stone, composite stone, granite, marble or slate. It says the height of memorials shall not exceed 3ft. Anyone wishing to place a memorial must apply to the Council.
- The byelaws say he word ‘memorial’ includes any headstone, monument, kerb, vase, tablet, footstone or other erection on which there is or is proposed to be placed any inscription or lettering.
- In May 2019 the Council planted a tree next to Mrs B’s partner’s burial plot. Mrs B was concerned about the type of tree and the possibility of its roots impacting on her partner’s plot.
- Mrs B contacted the Council, which said it planted the tree at a customer’s request and did not have any concerns about it impacting on burial plots. The Council said the tree would help to dry and stabilise the ground, and it was planning on planting several similar trees. It explained how its tree surgeons would maintain the tree, so its roots did not spread.
- Mrs B still had concerns and asked who had asked for the tree. However, she said if the Council would give an undertaking that it would maintain the tree she would be satisfied. The Council said it would maintain the tree but did not disclose who asked to plant it.
- Shortly after the Council’s response Mrs B visited her partner’s grave and found the tree covered with several items and plaques, which she found distasteful. Mrs B realised it was one of her partner’s siblings who asked the Council to plant the tree. Mrs B says those siblings were estranged from her partner and had treated her and the rest of his family badly since his death.
- Mrs B asked the Council to remove the tree and complained it had misled her about why it planted the tree. She remained concerned about damage to her partner’s plot. Mrs B said the tree was a memorial and went against the byelaws, which said memorials should not be taller than 3ft.
- The Council investigated the complaint and an officer met with Mrs B at the cemetery. It agreed the items and plaques were not in keeping with the cemetery and should be removed. It said it would ask the sister to remove the items. It said it would explain to the sister that if she continued to place items around the tree it would consider removing the tree. However, the Council said it did not intend to remove the tree. It said no one had intended to mislead Mrs B, it has the right to change the landscape and did not consider it unreasonable to locate the tree near the grave at the sister’s request. The definition of memorials in the byelaws did not include trees, which are instead part of the landscape.
- Mrs B sent a further complaint letter. The Council investigated Mrs B’s concerns at stage two but did not uphold her complaint. The Council says it has not contravened the byelaws and cannot pass judgement on disagreements between family members.
- Mrs B says one plaque was cemented into the ground. She says the Council removed this, not the sister. She says the Council should not have done so, as it told the sister to remove everything. If the sister did not remove the plaque, which she would likely not have done, it should have then removed the tree.
- Mrs B says the Council has not kept the tree as it said it would. The Council said it would not allow the canopy to exceed 5 ft. She says it has not yet exceeded this but has established itself.
- I have looked into Mrs B’s concerns and separated my findings into two sections:
- Whether the Council is at fault for accepting the sister’s request to plant the tree in the first instance.
- Whether the Council is at fault in the way it responded to Mrs B’s complaints and its decision not to remove the tree.
Planting the tree
- I do not find the Council at fault in planting the tree. I understand the Council planted the tree as a memorial. However, this does not mean it falls into the definition of a memorial set out in the byelaws. I have read through the byelaws and memorials are clearly defined, as set out above at Paragraph 7. The definition does not include trees.
- The purpose of the restrictions in the byelaws is clearly to prevent headstones and monuments that are too large or overbearing. There is nothing in the byelaws that prevents the Council from planting trees or that restricts their height.
- The Council considered the request and decided a tree in memorial was acceptable. The tree did not breach the cemetery byelaws and would become part of the landscape. The Council has set out how it will maintain the tree, so it does not cause harm to any plots. It is not my place to question this as the Council has its own professionals with knowledge of maintaining trees.
- Mrs B says the Council has a formal application procedure for headstones and should have a similar procedure if someone requests a tree. I do not find fault in this respect. There are no laws or regulations that govern the procedure by which councils must consider applications of this nature. It is for the Council to decide any requests in the way it considers reasonable and proportionate.
- The Council did not tell Mrs B, when she purchased the plot, that it was going to plant the tree. I do not find fault in this respect. The Council owns the land and, again, there is nothing preventing it from planting trees. The byelaws give no requirement for the Council to give plot owners notice of its intention to make changes to the landscape, regardless of the proximity to their plots. In this case, the Council says that at the time Mrs B purchased the plot, it had not yet decided to plant any trees.
- I understand the distress these events have caused. However, I can only consider whether there is any fault in the Council’s actions. It is not the Council’s place to become involved or make judgements about disagreements within families. I can see no evidence of fault in how the Council considered the request or decided to plant the tree.
Response to complaint
- Mrs B raises the following concerns about the Council’s response to her complaint:
- The Council misled her over the reason it planted the tree
- The Council did not keep to its word that the sister must remove all the items and plaques, or it would remove the tree
- Mrs B remains concerned about maintenance of the tree
- The Council is not at fault in its decision to plant the tree or in how it responded to Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman