Summary: The Council failed to keep Mr X informed when it decided to issue a TPO on his clients but later reversed that decision. The Council should write to Mr X to apologise and pay him £150 for avoidable frustration, uncertainty and time and trouble caused. There was no fault in advice the Council gave Mr X about work to trees in a conservation area.

The complaint

1. Mr X complains the Council has failed to deal with his requests and applications to maintain a number of trees in its area as part of his business. Mr X says there have been delays in the Council responding to him and the Council has taken too long to deal with his requests and applications. He says in some cases the Council has placed Tree Preservation Orders on trees or threatened to do so to prevent him from carrying out work even though the Council has no valid reason for doing so. Mr X says the Council:
• has been discourteous in its dealings with him;
• has insisted he provide irrelevant measurements regarding planned work to trees (e.g. reduction in metres rather than % reduction which is the usual standard);
• has refused to meet with him to look at some trees; and
• has turned up unannounced to his clients’ houses.
2. Mr X says this has had a negative impact on his business, has caused him a significant amount of stress and inconvenience and he is now reluctant to work in the Council’s area.

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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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I have spoken to Mr X about his complaint and considered information he provided to the Ombudsman. I have also considered information he provided to the Ombudsman.
7. I have considered the Council’s response to my enquiries. This includes its comments on the complaint and records of contact with Mr X. I have also considered information available to the public on the Council’s website.
8. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

9. Trees in conservation areas that are protected by tree preservation orders (TPO’s) are subject to the normal controls for any tree with a TPO. This prohibits the cutting down, topping, lopping, uprooting, willful damage to or willful destruction of protected trees.
10. If a person wants to carry out work to a tree covered by a TPO they must apply for permission to the local council.
11. Trees in a conservation area that are not protected by a TPO are protected by under section 211 of the Town and Country Planning Act 1990. This requires councils to be notified of certain work on such trees using a section 211 notice. The notice must be served six weeks before the work is carried out. This gives the council time to consider whether to make a TPO on the tree.
12. Notice is not an application for consent, so the council cannot refuse consent; or grant consent subject to conditions, they can only:
• Make a TPO if it is justified in the interests of amenity.
• Not make a TPO and inform the applicant that the work can go ahead.
• Not make a TPO and allow the six-week notice period to end, after which the work can go ahead.
13. Carrying out work without notice is an offence which can result in a fine of up to a £20,000. For a serious offence, a person can be committed for trial in the Crown Court and if convicted, can be liable to an unlimited fine.
14. A section 211 notice is not required for:
• Cutting down, topping, lopping or uprooting a tree whose diameter does not exceed 75mm.
• Cutting down or uprooting of a tree, whose diameter does not exceed 100 millimeters, for the sole purpose of improving the growth of other trees.
• The diameter of the tree should be measured over the bark of the tree at 1.5 meters above ground level.

What happened

15. Mr X owns and runs his own gardening business which operates in the Council’s areas as well as neighbouring council areas. Mr X’s work means that he regularly needs to carry work out to trees.
16. Mr X says he has had difficulties dealing with the Council when carrying out work on trees. He says he has checked the status of individual trees with the Council before carrying out any work but the Council has then taken steps to prevent work from going ahead or caused delays which has impacted his ability to run his business.
17. Mr X complains about the Council’s actions in relation to trees at 8 properties. These properties are within a conservation area.

Property 1

18. Mr X made two applications on behalf of his clients to carry out work to trees at this address in October 2017.
19. On 2 November 2017 the Council e-mailed Mr X to say it intended to visit the site on 7 November 2017 at 2pm. Mr X replied and said he was unavailable. The Council proposed a new visit time of 16 November 2017 at 2pm.
20. Council granted conditional permission to carry out crown thinning works for one tree on 20 December 2017.
21. The second application was to trim overhanging branches. The Council decided not to make a TPO for the tree and informed Mr X on 5 December 2017. This meant work could go ahead.

Property 2

22. Mr X made an application on behalf of his clients to carry out work to a tree at this address in early November 2017. Mr X proposed to reduce the crown of the tree and carry out other works to correct previous poor quality work.
23. The Council visited the site on 23 November 2017 and viewed the tree from outside the premises.
24. The Council considered the work was not appropriate and decided to make a TPO. The Council informed Mr X of its intention to make a TPO on 7 December 2017.
25. The Council said the work proposed by Mr X was not acceptable as the crown was already very high so further reduction would “adversely impact the aesthetic and amenity value of this tree”.
26. Mr X e-mailed the Council on 21 December 2017 and said he had received legal advice which said if the TPO had not been served he was still able to carry out the work to the tree.
27. The Council replied to Mr X on 22 December 2017 and asked him to share his legal advice so it could discuss this with its legal department. The Council said “undertaking work to protected trees without permission is a criminal offence under Section 2010 of the Town & Country Planning Act”.
28. Mr X replied to the Council on the same day. He said as there was no TPO in place he was able to work legally on the tree. Mr X asked the Council to confirm this.
29. Mr X e-mailed the Council on 25 July 2018 to ask for an update regarding the TPO.
30. The Council replied to Mr X’s e-mail on 3 August 2018 and said it had decided not to make a TPO because the work identified in his original application had now been carried out. The Council said there was now no need to make a TPO but it may decide to do so in future.

Property 3

31. In early November 2017 Mr X made an application on behalf of his client to trim a tree.
32. Mr X met the Council at the site on 16 November 2017. Mr X said the Council officer he met with said he needed to give details of how many metres of tree was to be removed as Mr X had only provided a percentage. Mr X e-mailed the Council on the same day to complain that the officer was being too prescriptive about what work could be carried out. Mr X also said that expressing the reduction of a tree as a percentage was an acceptable measurement.
33. The Council decided not to make a TPO and so work could take place. The Council informed Mr X of its decision on 18 December 2017.

Property 4

34. In early November 2017 Mr X made an application on behalf of his client to trim over hanging branches on a tree.
35. The Council decided not to make a TPO and so work could take place. The Council informed Mr X of its decision on 19 December 2017.

Property 5

36. On 9 November 2017 Mr X made an application on behalf of his client to carry out works to a number of trees.
37. The Council visited the site in November 2017 and viewed the trees from outside the premises.
38. On 13 December 2017 the Council e-mailed Mr X to say it needed more information regarding this application and others he had made using the term “slight crown lift” when describing planned work to trees. The Council said measurements given by Mr X were “not precise enough and not in accordance with best practice as stated in BS3998:2010”. The Council included a diagram showing how this should be calculated.
39. The Council decided not to make a TPO and so work could take place. The Council informed Mr X of its decision on 21 December 2017.

Property 6

40. On 9 November 2017 Mr X made an application on behalf of his client to carry out works to a number of trees.
41. The Council decided not to make a TPO and so work could take place. The Council informed Mr X of its decision on 21 December 2017.

Property 7

42. On 9 November 2017 Mr X made an application on behalf of his client to carry out works to lift the crown of a tree.
43. The Council decided to make a TPO on the tree and advised Mr X that he could not carry out work to the tree without permission. The Council wrote to Mr X on 22 December 2017 advising of its decision to make a TPO. It said the Order “will be served shortly”.
44. Mr X e-mailed the Council on 25 July 2018 asking for an update regarding the TPO.
45. The Council replied to Mr X on 3 August 2018 and said the County Council had submitted a management plan for highway trees on the street including the one Mr X had applied to carry out work on. The Council said it would not be “prudent to use of [sic] Council resources to continue to pursue a TPO on the [tree] at this particular time, as any further work would still require a further notification to undertake works to trees in a conservation area”.
46. On 21 November 2017 Mr X applied to carry out works to a fruit tree at the same premises. The Council e-mailed Mr X on 13 December 2017 and explained he did not need to apply for permission to carry out the works so long as they were carried out “in accordance with good horticultural practice”.
47. Mr X withdrew the application on the same day.

Property 8

48. On 21 November 2017 Mr X applied to carry out works to two trees on behalf of his client.
49. Mr X provided details of measurements for crown lifting both trees in an e-mail to the Council on 15 December 2017.
50. Mr X sent a further e-mail to the Council on 1 January 2018 advising the decision was due on 5 January 2018. Mr X said he had received no contact from the Council regarding the application and he wanted to “avoid having anther last minute, poor quality decision”. Mr X asked the Council to “advise me IN ADVANCE, so I can provide additional information if requires, or withdraw the application”.
51. On 2 January 2018 the Council wrote to Mr X in an e-mail advising him it would not be serving a TPO. The Council said formal confirmation would “follow shortly”. There is no formal decision notice on the Council’s website. The Council’s website records the decision as being made on 10 May 2018.

The Council’s response to Mr X’s complaints

52. Mr X made a number of complaints to the Council about the way he had been dealt with when applying to carry out work to trees in its area. Mr X said he had previously had no issues with working in the Council’s area.
53. In its final response to Mr X’s complaint on 8 January 2018 the Council said it had changed its processes. The Council said this was because its previous more informal approach had been criticised. The Council said it had to “ensure that we show transparency in our decision making process and that we are capable of defending that decision under scrutiny”.
54. The Council said it had to balance this “with the needs of our customers to ensure we are still delivering an effective and efficient service”.
55. The Council accepted it had not always responded to Mr X’s queries by e-mail and telephone but said it had dealt with all his notifications and applications within its stated timescales.

My findings

Council’s handling of Mr X’s applications

56. There is no fault in the way the Council has dealt with Mr X’s applications for carrying out work to trees in the conservation area.
57. The Council has changed its processes and is applying a more formal approach to applications for works to trees in the conservation area. However, the Council is entitled to properly scrutinise applications it receives and that includes visiting properties and questioning information provided in an application.
58. Mr X is unhappy the Council requested he provide measurements in meters rather than a percentage for reducing the volume of a tree. The Council referred Mr X to guidance which is not freely available however it did provide him with a diagram from the guidance it was relying on. Therefore there is no fault in advice the Council gave to Mr X.
59. Information about providing measurements for the relevant work (a “crown lift”) is freely available on the website of a professional body for arboriculturalists and is also contained in government guidance for applicants wishing to apply to carry out works under section 211 of the Town and Country Planning Act 1990. All state that measurements for a “crown lift” should be given in meters rather than a percentage.
60. Mr X says officers were discourteous at site visits and on the phone. I have found no fault in the way site visits were conducted and no fault in advice given to Mr X. I was not present when officers spoke to Mr X and there are no recordings of telephone calls. Therefore I cannot reach a decision on whether officers were discourteous.

Council’s decisions to make TPOs

61. The Council decided to make TPOs for trees at Property 2 and Property 7 following applications from Mr X to carry out work under section 211 of the Town and Country Planning Act 1990.
62. In both cases the Council said it would serve a TPO “shortly” however no TPO was ever issued in either case. In both cases the Council reversed its decision to serve a TPO however it failed to inform Mr X of this. This is fault.
63. The delay in reaching issuing the TPOs and failure to inform Mr X that it had subsequently decided not to issue the TPOs caused him uncertainty as he was unsure if work proposed could go ahead. It also caused him some time and trouble as he had to chase the Council for confirmation of its decisions in both cases.
64. The Council says Mr X carried out work regardless of its intention to issue a TPO. Mr X did so at his own risk but this does not diminish the frustration, time and trouble and uncertainty caused by the Council’s delays.
65. There are wider implications of the Council’s failure to serve TPOs in a timely manner. TPOs are intended to protect trees and the delay left both trees at risk.
66. Furthermore, the Council has also failed to record that it has reversed its decision as both applications made by Mr X under section 211 of the Town and Country Planning Act 1990 still show it was the Council’s intention to serve a TPO. This is misleading and may impact on the owners of the property or anyone wishing to carry out work to those trees in future.

Agreed action

67. The Council has agreed to take the following action to remedy the injustice caused as a result of the fault I have identified:
• Write to Mr X to apologise for delays in issuing TPOs and in not informing Mr X that it no longer intended on serving the TPOs.
• Pay Mr X £150 for the avoidable frustration, uncertainty and time and trouble caused.
68. The Council should take the above action within 8 weeks of my final decision.
69. The Council should also correct its records regarding Property 2 and Property 7 to reflect the fact it decided against issuing TPOs. The Council should take this action and write to the owners of the properties concerned within two months of my final decision.
70. I recommended the Council set out and publish timescales for issuing TPOs where it decides to serve one following an application to carry out work to a tree in a conservation area. The Council has highlighted that these are statutory timescales but is reviewing its procedure for dealing with notifications to undertake works to trees in a conservation area to ensure that TPOs are served within the statutory timescales.
71. The Council should take this action within three months of my final decision.

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Final decision

72. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman