Summary: Mr X complained about the Council serving tree preservation orders on a neighbour’s tree which restricted any works he could carry out on it. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council serving preservation orders on a neighbour’s tree in 2017 and 2018 which has restricted the work which can be done to it. He says the assessment of the tree was incorrect and that the Council did not fully consider safety implications.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

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

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I have considered all the information which Mr X submitted with his complaint and Mr X has been given the opportunity to comment on the draft decision.

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What I found

5. Mr X proposed to carry out work to a tree in a neighbour’s garden which overhangs his property. The tree is in a conservation area and when Mr X applied to do the work in 2017 the Council placed a temporary preservation order on it because it was concerned that the tree may be threatened by the proposed work. Later the Council decided not to confirm the order because it was satisfied the tree was not threatened.
6. In 2018 both Mr X and his neighbour proposed to carry out work to the tree. The Council again served a preservation order. The Council says it was obliged to do so because the tree has an amenity value in a conservation area and the work proposed by Mr X and the owner threatened this. The Council rejected Mr X’s application for the works, but it later approved limited works by the owner.
7. Mr X says the Council had told him in 2008 years earlier that the tree had little amenity value. The Council says the tree is now more mature and its assessment of amenity was correct at the time of the order being served.
8. Mr X says the Council failed to answer his general questions about its duty of care to the public concerning fire safety, both relating to the tree and in general. The Council confirmed to Mr X that it had considered all the requirements of government guidance on introducing a preservation order before it confirmed it.
9. 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. In this case the Council followed the procedure for making a preservation order for the tree and it is not the Ombudsman’s role to question the merits of its decision.
10. We would not exercise discretion to consider the original order which Mr X was aware of more than 12 months before he complained to us. The order was not confirmed on that occasion.

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Final decision

11. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman