Summary: Mr K complains about a charge the Council made for replacing a tree that needed removing to carry out a planning permission. He says the Council should never have planted the tree there. Mr K also complains about the Council’s complaint handling. The Ombudsman has upheld the part of the complaint about the complaint handling and has asked the Council to apologise.

The complaint

1. The complainant, whom I shall describe as Mr K, complains that:
• He had to pay to remove a tree, to allow him to put in a dropped kerb, for vehicle access to his home.
• The Council’s charge was too high.
• Proper planning by the Council would have meant it would not have planted the tree outside his home. It should have known that a house without a crossover would, at some point, want one.
• The Council did not provide timely responses to his complaints.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
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. The information I have seen includes the documents Mr K supplied with his complaint and the Council’s responses under Stage 1 of its complaints procedure. I have also looked at the Council’s tree strategy and researched how public bodies calculate the value of trees as public amenities.
7. I sent my draft decision to Mr K and the Council and invited their comments.

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What I found

8. The Council’s Strategy says that, if a tree is healthy and has a foreseeable life of more than five years, the Arboriculture Officer should recommend that planning refuse any application for a dropped kerb, or new driveway, that needs a tree’s removal.
9. But, at the discretion of the Council’s Arboriculture Officer, it may allow the removal of a non-mature healthy tree, if an applicant paid for its replacement.
10. The Strategy also sets out the Council’s tree planting programme and where it will plant trees.

Value of trees

11. Local authorities widely use the Capital Asset Value for Amenity Trees (Cavat) as a valuation method for trees. This gives a monetary expression to the amenity value of trees, in terms of the cost of an equivalent replacement.

What happened

12. In 2014 the Council planted some young trees on the road Mr K lives on. One was outside Mr K’s house. Mr K tells me he has owned the house since 1998.
13. In 2016 Mr K applied for planning permission for a vehicle crossover/dropped kerb and a driveway. The Council considered the application. It granted the application, with a condition that Mr K paid for replacing a young tree outside his property, that would need removing to carry out the works.
14. In January 2017 Mr K complained to the Ombudsman about the Council refusing to grant planning permission, unless they paid to replace the tree. We did not consider this complaint, as we usually expect complainants to first complain to the Council.
15. Mr K contacted us in July 2018 advising the Council had not responded to complaints he had made on-line in January and February 2018. We asked the Council about this. It advised it had had some intermittent technical problems then with its on-line complaint form. It apologised to Mr K for this. We asked the Council to consider the complaint.
16. Towards the end of August Mr K contacted us to advise he had not had a response to his complaints. We chased the Council. On 21 September 2018, it provided Mr K with its response, at the first stage of its complaints procedure. This advised:
• It had charged Mr K £2867.75 to replace the tree. This was based on the Cavat value of the tree plus £32.50 removal costs and the £275 cost of replacing the tree.
• The removal costs were for the removal of the tree and stakes, not grinding, as the bill had earlier wrongly advised.
• The charge for replacing the tree was a repeat cost, as the Cavat figure covered replacement. It would arrange repayment of that cost.
• It noted Mr K’s home had vehicle access before the planning application.
17. Mr K asked the Council to escalate his complaint on 25 September 2018. One of the issues he noted was the Council was wrong to say the property had vehicle access before.
18. The Council did not respond to Mr K’s complaint, so he contacted the Ombudsman. We also tried to contact the Council, but it did not respond. So we decided to accept a complaint from Mr K.

Analysis

19. Mr K would like the Ombudsman to investigate his complaint the Council should never have planted the tree. But the Council planted the tree in 2014. The Ombudsman cannot usually investigate complaints about matters that occurred more than 12 months before a complaint to us. Mr K should have complained earlier about this issue. He says it was not an issue until he wanted to construct the driveway. But that conflicts with Mr K’s statement the Council should have foreseen he wold likely have wanted to build a crossover in the future. So I am not persuaded that Mr K could not have anticipated in 2014 that the tree might later be an issue. So my view remains that I will not consider this issue.
20. I have looked at Mr K’s complaint about the cost of the replacement tree, due to the delay in the Council’s complaint response providing a reason why this complaint is late.
21. But, having done so, I see no evidence of fault. The Council used a widely adopted method for calculating the value. The Ombudsman has no role in questioning the merits of using that method. The Council has, rightly, removed a fee that repeated the Cavat fee.
22. I do not see that whether Mr K had a driveway, already, made any difference when considered against the Council’s Tree Strategy. So the wrong advice in the complaint response did not have any bearing on the Council’s decision.
23. My view is there were faults in the Council’s complaint handling:
• Its on-line system prevented Mr K making a complaint in early 2018.
• It delayed responding to Mr K’s stage one complaint.
• It did not respond to Mr K’s stage two complaint.

Recommended action

24. My view is the way the Council has responded to Mr K’s complaint has been so poor, that an apology is warranted.
25. I also recommend the Council, within a month of my final decision, review the way it dealt with this complaint. And that it reports to the Ombudsman the reasons for the faults and steps it has taken to prevent a re-occurrence.

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Final decision

26. I uphold the complaint because of the poor complaint handling. The Council has not challenged my recommendations. So I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman