Summary: There was fault by the Council in how it dealt with work to trees in a conservation area next to the complainant’s home. The Council failed to record its reasons for not making a Tree Preservation Order and it was not clear that its assessment of the site has been thorough. It failed to follow its complaints process. This caused the complainant frustration and uncertainty as she had to raise matters with the Council and the Ombudsman. The Council should apologise to the complainant and share this decision with staff reminding that reasons for decisions should be properly recorded.

The complaint

1. Mrs B complains that the Council:
• Failed to ensure that her neighbour worked on the trees she had specified in her notice to it and failed to take enforcement action when she felled trees that were not part of the notice;
• Failed to consider a Tree Preservation Order (TPO) to protect the trees and better regulate work on the woodland; and
• Failed to deal with her complaints in accordance with its policy or respond to her request for clarification of the Council’s reasons for not taking enforcement action.

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What I have investigated

2. Mrs B says that she has made several complaints about her neighbour felling trees over the last 15 years. I have investigated the Council’s actions since September 2017, and I have set out the reasons for restricting my investigation to this timespan below.

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The Ombudsman’s role and powers

3. 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’. 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. 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. I have considered the information Mrs B sent me and discussed the complaint with her. I have considered the Council’s response to my enquiries, its photographs of the site and its correspondence with Mrs B and her neighbour. I have also considered the law and government guidance. I received comments from both parties on a draft of this statement. I considered these before I made my final decision

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What I found

6. An owner planning to carry out works to trees in a conservation area must give the Council six weeks’ notice. This is called a section 211 notice. The Council can then decide whether to make the trees subject to a TPO. The Council cannot refuse consent but can place conditions on the work. (The Town and Country Planning Act 1990, section 211)
7. The Government has issued guidance around section 211 notices. This says the Council cannot insist on section 211 notices taking a particular form, but the notice must describe the proposed work sufficiently to identify the trees. Where a number of trees are are involved, it should make clear what work is proposed to which tree. A notice must include the date it is submitted. A plan is not mandatory but can be helpful. (Tree Preservation Orders and tress in conservation areas 2014, paragraph 116)
8. Before making a TPO the Council should assess the amenity value of the tree. The government guidance says that councils should take into account the tree’s visibility, its impact on the area, as well as other factors such as the tree’s importance to nature conservation. It must consider objections and comments from the public and the landowner before making a TPO. If the Council makes a TPO, someone wanting to work on the tree must apply formally to the Council for permission. (Tree Preservation Orders and tress in conservation areas 2014, paragraphs 20 to 44)
9. The Council’s website says:
• The owner must include a sketch plan with the notice showing which trees are to be worked on and any others nearby.
• The law says the applicant must specify which trees are to be worked on.

What happened

10. Mrs B lives in a grade II listed building. She complains that the Council has allowed her neighbour to fell trees on his land which itself is in a Conservation Area and part of an area of Special Landscape Interest. The woodland also screens Mrs B’s home from the neighbour’s private airstrip. None of the trees are subject to a TPO.
11. In September 2017, the neighbour notified the Council that she intended to remove young and diseased trees in the conservation area. She followed this with an aerial photograph showing the trees that would be felled. The Council decided not to make a TPO but did not record the reasons for its decision or how it arrived at this.
12. Mrs B says her neighbour actually removed healthy mature trees of a different species without permission. Mrs B alerted the Council and took photographs to document which trees had been felled. Mrs B also complained that the Council had allowed the neighbour to fell Hawthorn. These particular trees were part of a hedge that screened Mrs B from a public footpath. Diversion of the footpath had been subject to an Inquiry and the Inquiry’s Inspector had been clear that these trees should not be removed so as to protect Mrs B’s privacy.
13. The Council contacted the neighbour who assured it she would not fell trees without permission. The Council visited the site but says there was no evidence that trees had been felled and so concluded that it would not investigate the matter further. The Council has sent me an extract of a case note about the site visit. It wrote to Mrs B with its decision.
14. Mrs B says she did not receive that letter and it was not mentioned when she later asked the Council for its decision. Mrs B also says the parish councillors had also complained but did not receive a response. The Council says it sent this letter by post. Mrs B’s photographs from the site show very clearly the stumps of felled trees, and cut branches and trunks piles alongside these. It is possible that the Council and Mrs B are referring to different areas of the woodland.
15. Mrs B pursued matters with the Council and told it trees that were not part of the notification had been felled. The Council told Mrs B this was under a previous notification made in 2014 to which the Council did not object. For this reason, the Council would not act against the neighbour.
16. In September 2018, the Council visited the site again. I have seen the photographs and an extract from the notes of the visit. The Council concluded that only the trees specified in the 2014 and 2017 notices had been felled. The Council’s notes also say that on inspecting the trees it found that many had Ash dieback, with a few sustaining damage, and that removing the trees would allow more light and insects into the woodland, benefiting the health of remaining trees. The Council reminded Mrs B that although it would not make a TPO, work on the remaining woodland would be monitored because the neighbour would need to notify the Council of any future work.Mrs B says there are very few Ash trees in that area and she thinks the Council has visited another area of the woodland.
17. Mrs B complained to the Ombudsman. She says the Council has taken too long and has now missed the opportunity to take enforcement action. Mrs B says the Council should make a TPO for the woodland so that all future work is properly considered and controlled. Mrs B says this is especially needed because over 45 trees have been felled in this area over the last 15 years. This is against the Council’s local plan that seeks to preserve landscape and wildlife areas. The woodland is a habitat for bats. She is not clear what part of the land, the Council visited to assess whether it should make a TPO.
18. Mrs B also says that the plan accompanying the section 211 notice was not sufficient to identify the trees and even showed a tree that was on her land to be worked on.
19. I noted that the Council’s visit in January 2018 was problematic. It had given me site visit notes after its response to my enquiries, and these did not correspond with Mrs B’s photographs of the site. In response to my comments, the Council visited the site again. It has provided photographs and a plan showing the area it has visited so that this is clear to Mrs B.
20. Mrs B also complains that the Council did not deal with her complaints in accordance with its policy. It had not answered her queries about work on the trees, so she made a formal complaint about this. The Council has two stages to its complaints process. The Council responded to her complaint but told her that this was its final response already at stage two of its process and she should complain next to the Ombudsman.

Was there fault by the Council causing an injustice to Mrs B?

21. There was fault by the Council. There is no evidence the Council considered whether it should make a TPO when Mrs B’s neighbour notified it she wanted to work on trees in the conservation area. The Council may have given this proper consideration in line with the law and guidance, but there is no way of knowing this or of its reasons for not making a TPO. The Ombudsman would expect the Council to record the reasons for decision and be able to explain these. The Council’s usual process is to publish the application, the Tree Officer’s advice and the Council’s decision about whether to make a TPO or to allow the work. It did not do this in this case.
22. The Council’s first site visit in January 2018 is problematic. The Council has one photograph from this, and the officer said he could not find any evidence of work on trees. Mrs B has supplied several photographs which clearly show recently cut tree stumps and logs from the work. Mrs B pursued this with the Council and it did not properly explain why the stumps of felled trees still in situ for the Council to inspect, or her photographs were not enough for it to decide whether the neighbour had felled trees that were not included in her notification.
23. Mrs B says the plan accompanying her neighbour’s application did not meet the guidelines on this. The Council cannot insist that the section 211 notice takes a certain form or that it is accompanies by a plan. The Council says the trees were marked on an aerial photograph and it is for the Council to decide that this was sufficient to allow it to identify the trees.
24. The Council visited the site in September 2018 and decided the neighbour had only worked on those trees identified in the section 211 notice. Again, there was some disparity between the Council’s findings and information from Mrs B. I am pleased to note the Council visited the site again in order to clarify its observations and make clear to Mrs B the area it has inspected.
25. The controls around work on trees in a conservation area, either by a TPO or by the requirement to notify the Council of intended work to it, are there to protect the trees and the landscape. The Council does not need to take into account how felling the trees will impact on screening Mrs B from the footpath or the airstrip. It does not take into account individual residents’ amenity. The neighbour’s work may have damaged Mrs B’s privacy or amenity, but this is not as a result of any fault by the Council.
26. The Council’s shortcomings in its investigation and in recording its reasons for its decisions has left Mrs B uncertain that the Council has properly considered the protection of the trees neighbouring her land.
27. The Council does not appear to have dealt with Mrs B’s complaint in accordance with its process. Its final letter refers to its previous complaint response (ie stage one of its process), but it did not send any previous responses to her complaint. I have found that the Council’s responses to Mrs B’s contact caused her frustration as it failed to properly explain its decisions or follow its complaints process.

Agreed action

28. The Council has agreed that within one month of my decision of this complaint show the Ombudsman that it has:
• Apologised to Mrs B; and
• Shared this decision with relevant staff.
29. If Mrs B finds the Council has not assessed the part of the site about which she is concerned, it should assess again whether there has been unauthorised work. It should make its decision within one month of Mrs B’s request. If Mrs B feels the Council has not properly considered her request, she can bring this to the Ombudsman as a new matter.

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Final decision

30. I have completed my investigation. There was fault by the Council causing injustice to Mrs B.

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Parts of the complaint that I did not investigate

31. 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)
32. Mrs B has complained that the Council has not taken sufficient action to control work on the trees over the last 15 years. But Mrs B did not complain to the Ombudsman until September 2018. There is no reason Mrs B could not have complained earlier.

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Investigator's decision on behalf of the Ombudsman