Summary: Mr X complains the Council failed to follow the correct procedure when placing a tree preservation order covering trees on his land in 2014. The Ombudsman will not investigate this complaint as it is late and he cannot achieve the outcome Mr X is seeking.

The complaint

1. Mr X complains about a Tree Preservation Order (TPO) approved by the Council at a planning committee meeting in January 2014. He questions the legality of the TPO.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)
4. 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 we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered the information provided by Mr X, including the Council’s responses to him.

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What I found

6. Trees in Mr X’s garden have been part of preservation orders for many years. In 2013 the Council decided to change an existing group TPO.
7. Mr X objected to the Council’s proposals. Instead of agreeing the TPO under delegated authority, the Council agreed to hear the application at a planning committee meeting. This was scheduled for December 2013. The Council says this was deferred so that Councillors could visit the site.
8. A site visit took place and the meeting was held in January 2014. Mr X spoke at the meeting, explaining his concerns about the proposals. Having considered the matter, the Council decided to approve the order.
9. Mr X has been corresponding with the Council since then. In January 2015 he complained to the Ombudsman. She referred the case back to the Council as it had not dealt with Mr X under its complaints process.
10. Mr X contacted the Ombudsman again in 2018 about the same complaint. The Council’s final response to Mr X is dated April 2019. It says it is confident the TPO is lawful.

Assessment

11. The law says the Ombudsman cannot investigate a complaint where the complainant is raising a matter more than 12 months after s/he became aware of it.
12. In this case Mr X was aware of the TPO in January 2014. I understand he came to us in January 2015. We asked him to make his complaint to the Council. However, while he was in contact with the Council he did not come back to the Ombudsman until June 2018, more than two years after his first contact with us. Therefore, this complaint is late. But, because there appears to have been some confusion between Mr X and the Council about whether it has considered his concerns under the complaints process, I have decided to consider whether we should investigate or not.
13. Part of Mr X’s complaint concerns what he says is questionable practice by the Council. He says the Council employed the same independent arboricultural consultant three times. He was asked to provide two tree surveys on Mr X’s land and then asked by the Council to speak at a planning committee meeting in 2014. Mr X also says the Council has used the same consultant to work on its tree maintenance policy and tree risk management plan, among other things. However, it is for the Council to decide whether it needs to commission work from specialist external consultants. I have not seen any evidence of fault here.
14. Mr X is also complaining about the conduct of the planning committee meeting in 2014. He says he was not invited to have independent representation at the meeting. However, the Council is not required to make such an invitation. If Mr X felt he needed a representative to speak for him at the meeting, he could have arranged this. It is not unusual for planning applicants or objectors to have agents or consultants speaking on their behalf.
15. Ultimately, Mr X is challenging the legality of the TPO. He also says his arboricultural consultant is more qualified that the person commissioned by the Council. The Ombudsman cannot make a judgement on points of law.
16. Because of this, I cannot achieve the result Mr X wants which is to decide whether the TPO covering his property is legally correct or not.

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Final decision

17. I will not investigate this complaint. This is because his complaint is late and we cannot achieve the outcome Mr X is seeking, namely, to decide if the TPO covering trees on his land is lawful or not.

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Investigator's decision on behalf of the Ombudsman