Summary: Mr X complains about the Council’s decision to fell trees next to his house that provided screening from a main road. The Ombudsman has not found fault in the Council’s handling of this matter. There was no obligation to either consult with Mr X or provide replacement screening.

The complaint

1. Mr X complained about the Council’s decision to fell trees that provided screening to his property without prior notification or discussion. He says this has affected both the enjoyment of his home and its value.
2. He also complained about the Council’s failure to enter into a meaningful discussion about possible mitigation for the loss of amenity to his home. This has led to increased frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. As part of my investigation I have:

• considered the complaint and documents provided by Mr X;
• made enquiries of the Council and considered its response;
• considered the Council’s Tree Management Policy;
• spoken to Mr X; and
• sent a draft version of this decision to both parties and invited comments on it. Comments were received form Mr X and these have been taken into consideration.

What I found

The Council’s Tree Management Policy

6. This Policy sets out how the Council manages trees on land that it either owns or maintains.
7. The Policy sets out its obligations regarding tree related subsidence damage to property:
8. “We will prune or remove a council owned tree only where damage has been caused to buildings and other structures as a result of the action of council owned or maintained trees. We vigorously defend claims of tree related subsidence damage and require that the claimant and/or their representative supplies sufficient evidence to establish that the vegetation is responsible”.

What happened

9. In April 2018, the Council removed a row of trees adjacent to Mr X’s home. The trees formed a boundary between his property and a main road. Mr X says the trees had successfully reduced road noise and provided privacy. The trees were originally planted to comply with a condition of planning permission when his housing estate was built a number of years ago.
10. In July 2018, Mr X complained to the Council about the loss of amenity to his home. He said the increased noise had a detrimental impact on the well-being of his family and had affected both the value and the ability to sell his home in the future.
11. He asked the Council to install a high fence and compensate him financially for the reduction in the value of his home.
12. In response to his complaint the Council explained the trees were removed because they were causing structural damage to a neighbouring property. Mr X was told his claim for compensation and a replacement fence would be a matter for the Council’s insurance department to consider rather than it being dealt with through its complaints procedure.
13. Frustrated by this reply, Mr X brought his complaint to the Ombudsman. He said the trees were planted at the time the housing estate was built as a condition of its planning approval. He said the purpose was to shield the houses on the estate from the noise and sight of the main road.
14. Mr X says he wanted a discussion with the Council about how to resolve the problem. He had suggested a fence as a possible solution. However, the Council decided that he was effectively making a claim against the Council’s insurance. He says he then received what he describes as an “arrogant” letter from the Council’s legal department responding to his “claim against the Council”. Mr X says his complaint was never intended to be such a claim, rather and attempt to find a solution to the problem that had been caused by the trees being cut down.
15. In response to my enquiries the Council explained the trees were removed following a claim against the Council by the owners of neighbouring property that had encountered subsidence as a result of root damage from the trees. It sought expert advice which led to the trees being removed that were causing the damage. In accordance with this advice the trees were originally cut back to within five metres of the subsiding property but as this did not solve the problem, more trees needed to be cut down to within ten metres.
16. The Council has confirmed in making this decision, it did not consider the impact this would have on Mr X’s property. However, an email I have seen from 2017 indicated the Council was aware felling of the trees would create a gap in the buffer zone that “we would be loathe to create”.

Analysis

17. As I have explained at paragraph 3 above, it is not my role to question the actions and decisions of professionally qualified Council officers simply because a complainant disagrees with what has happened. I can only uphold a complaint about a matter the complainant disagrees with if I find fault with how the Council reached it.
18. I do not find fault in the Council’s decision to fell the trees. This was a necessary course of action because the trees were causing damage to a property. As a result the Council was facing court action if it did not take action to remedy the problem. In reaching the decision about how many trees it needed to cut down it sought expert advice. This was the correct approach. The email I have seen from 2017 demonstrates the Council’s reluctance to fell any more trees than were necessary. This is confirmed by the fact the trees have been cut down incrementally.
19. So while I do not criticise the decision to fell the trees, I must then consider whether it was at fault for not consulting with Mr X about it and the way it dealt with his complaint.
20. As the trees were on Council owned land, there was no legal obligation to notify Mr X of its intention to cut them down. The Policy did not create such an obligation either. I understand why Mr X feels aggrieved by this. Doing so could have avoided the subsequent complaint, but in the absence of a duty to consult with him, I am unable to criticise the Council for not discussing the matter with him.
21. Mr X has referred to the original planning permission to support his position. The planting of trees was a condition of that planning permission. Although I have not had sight of any documents about this as the housing estate has been in situ for many years now, the Council, in its response to me has agreed the trees were planted “for amenity purposes to soften the urban landscape and development. The secondary purpose was to act as a visual screen for properties to the highway and vice versa.” From this response, it is a reasonable conclusion that the Council agrees with Mr X that the trees were planted by the original developer to comply with planning permission.
22. I must then go on to consider whether, by felling these trees and so frustrating the purpose of them i.e. to provide a barrier between the development and the highway, was the Council at fault?
23. The planning condition was an obligation placed on the developer by the Council. This condition was discharged once the trees were planted. There is no ongoing obligation on the Council, who then became the owners of the trees (as they were planted on Council land), to keep the trees, so long as it complied with its own Policy. Nor was there any ongoing obligation on the Council to provide any alternative screening in the event of the trees being cut down.
24. As the Council have said in its response to the Ombudsman, there is nothing to prevent Mr X planting trees on his own land or erecting a high fence. The Council has said it is unable to consider planting replacement, less damaging trees until the subsidence issue had been resolved.
25. Mr X also complains about how the Council has handled this matter. He says he wanted a discussion about it. However, he says it was incorrectly dealt with as a claim for compensation.
26. In his original letter of complaint Mr X desired outcome was for the Council to erect a fence and provide details of a “claims process in order that I may recover compensation for loss of value to my property”. I understand financial recompense may not have been Mr X’s sole objective in making his complaint, but I cannot criticise the Council for treating it as a claim again the Council and referring the matter to its Insurance and Legal Departments.
27. While it may be preferable for the Council to have liaised with Mr X prior to the trees being cut down, in the absence of any obligation to do so, I am unable to find fault. I am therefore ending my investigation.

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Final decision

28. The Council was not at fault in its decision to cut down trees adjacent to Mr X’s property.

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Investigator's decision on behalf of the Ombudsman