Summary: The Council delayed deciding whether to place a Tree Preservation Order on woodland near Mrs B’s home and delayed dealing with her complaints. The Council has agreed to make a payment to Mrs B, decide whether to place a Tree Preservation Order on the woodland and take action to prevent similar failings in future.

The complaint

1. Mrs B complains that the Council:
• granted planning permission for her neighbours to extend their property without properly considering the impact of the proposal;
• did not take appropriate action when notified that ancient woodland to the rear of her property had been divided and sold to her neighbours who were using it as garden;
• has not put tree preservation orders on the trees which form the ancient woodland;
• did not take appropriate action when notified that a neighbour had erected illegal badger fencing;
• delayed providing information she requested under the Freedom of Information Act and Environmental Information Regulations;
• breached the Data Protection Act when it published her information on its website; and
• delayed dealing with her complaints.

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What I have investigated

2. I have investigated Mrs B’s complaints about the ancient woodland, the badger fencing and the Council’s delay responding to her complaints. The last section of this statement explains why I have not investigated Mrs B’s other complaints.

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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 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. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. 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

8. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

The law and government guidance

9. The National Planning Policy Framework says that councils should refuse planning permission if development will result in the loss or deterioration of ancient woodland, ancient trees and veteran trees unless:
• there are wholly exceptional reasons
• there’s a suitable compensation strategy in place.
10. The Protection of Badgers Act 1992 states that, unless permitted by or under the act, it is an offence to:
• kill or injure a badger
• interfere with or obstruct access to a badger sett.
11. Government guidance says that, when considering planning applications, councils should check that the developer has:
• submitted enough information to enable it to fully consider the effect on protected species and their habitats; and
• as far as possible, planned to avoid harm or disturbance to protected species and their habitats with the location, layout, design and timing of the development.
12. Councils may make a Tree Preservation Order (TPO) if it appears to them to be 'expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area'.
13. Government guidance, ‘Tree Preservation Orders: A Guide to the Law and Good Practice’ says:

“3.4 Although a tree may merit protection on amenity grounds it may not be expedient to make it the subject of a TPO. For example, it is unlikely to be expedient to make a TPO in respect of trees which are under good arboricultural or silvicultural management.

3.5 It may be expedient to make a TPO if the LPA believe there is a risk of the tree being cut down or pruned in ways which would have a significant impact on the amenity of the area. It is not necessary for the risk to be immediate. In some cases the LPA may believe that certain trees are at risk generally from development pressures. The LPA may have some other reason to believe that trees are at risk; changes in property ownership and intentions to fell trees are not always known in advance, and so the protection of selected trees by a precautionary TPO might sometimes be considered expedient.”

14. The Forestry Act 1967 (as amended) states that a felling licence is not required for the felling of trees in a garden.

Key events

15. In August 2016, the Council granted planning permission to Mrs B's next-door neighbour to erect a two-storey rear extension with a balcony and single storey side extension. The extension has been built and Mrs B considers it has resulted in a loss of privacy and light to her property.
16. In October 2018, Mrs B told the Council that the owner of an estate to the rear of her property had sold some parcels of land to her adjacent neighbours which enabled them to extend their gardens. Mrs B said that this had affected her privacy and she asked the Council if it required planning permission.
17. In the Council’s response it said that if the land was previously part of an existing residential curtilage, its subdivision into smaller gardens would not involve a material change of use and planning permission would not be required.
18. Mrs B considers the land in question is ancient woodland. She applied to the Council to place a Tree Preservation Order (TPO) on the trees.
19. Mrs B told the Council that the subdivision of the ancient woodland and the erection of fencing had affected the wildlife, including badgers which are a protected species. She said she had found a dead badger next to the fence. Mrs B complained that the Council had not properly considered the impact on the environment and the wildlife when it approved a planning application for the boundary fencing around the estate.
20. The Council told Mrs B that there had been several ecological surveys of the site and two separate reports had concluded that the works would not have an impact on badgers.
21. The Council explained that its Tree Officer had visited the site and decided there was no urgent need for a TPO to be placed on the woodland but that it would keep the matter under review.
22. Mrs B complained again that the Council had failed to protect the woodland and badgers. She also complained about the impact of her neighbour’s extension, that the Council had delayed dealing with her request for a TPO, had failed to provide information she requested and had breached the Data Protection Act when it published her information on its website.
23. In the Council’s response, it explained that making TPOs is a discretionary power and it undertakes them where trees are considered to be of sufficient value and amenity and are considered to be at risk. It said that its officer had been out on a number of occasions and the woodlands did not appear to be at risk. The Council said that it would be carrying out a review of the need for TPOs across its parishes and hoped to be able to do so in Mrs B’s area by September 2020.
24. The Council explained that when it received a letter from Mrs B, it wrongly believed she was making representations on a planning application and uploaded it to its website. It said that as soon as it became aware of the error, it apologised and removed the letter from its website.
25. The Council said that Mrs B’s complaint about her request for information had been investigated by the Information Commissioner’s Office (ICO) and it had complied with the ICO’s requirements.
26. In the Council’s final response, it offered to pay Mrs B compensation of £250 to recognise its error in uploading her letter to its website and for the time it had taken to respond to her complaints.

Analysis

Division of woodland

27. I have found no evidence of fault in the way the Council reached the view that the subdivision of the woodland was not a material change of use and therefore did not require planning permission. The Council did not need to visit the site to reach this view. The sale and division of the land would not affect its use, which was residential.
28. Councils are required to consider the impact of development on ancient woodland when they are considering planning applications. This requirement did not apply because the Council did not receive any planning applications in relation to the division of the woodland, and it did not require planning permission.

Tree Preservation Orders

29. The Council had the power to protect the woodland by making it the subject of a TPO. After Mrs B contacted the Council asking it to place TPOs on the trees, the Council carried out a site visit and spoke to the landowners.
30. An email sent by the Council’s Tree Officer to Mrs B around 6 months after the site visit said, “…investigations are ongoing as to the expedience of TPO’ing this woodland.” It is therefore clear that the Council had not decided whether to place a TPO on the woodland at that time.
31. A few months later, the Council told Mrs B that the woodland was afforded some protection through the need for a felling licence from the Forestry Commission and that this would be sufficient until the TPO review was underway. However, the felling of trees in a garden does not require a felling licence.
32. The Council says that it did not consider there was an urgent need for a TPO. But government guidance on TPOs says that it is not necessary for any risk to be immediate for it to be expedient to make a TPO.
33. It is now over two years since Mrs B’s request. I consider the Council has significantly delayed deciding whether it is expedient to place a TPO on the woodland. This is fault and has caused Mrs B worry and frustration and put her to time and trouble pursuing the matter with the Council and the Ombudsman. However, I am unable to conclude that the Council would have placed a TPO on the woodland if there had been no fault here.

Badger fencing

34. Councils are required to consider the impact of development on protected species and their habitats when considering planning applications.
35. The erection of boundary fencing was approved in January 2017 as part of a planning application. A survey was carried out which concluded that the works would be highly unlikely to have a negative impact on badgers.
36. As explained in paragraph four, we will not usually investigate late complaints. If Mrs B considered the Council failed to properly consider the impact of the fencing on badgers, I consider it would have been reasonable for Mrs B to make a complaint at the time. I do not consider there are grounds to exercise discretion to investigate the planning decision now, around four years after permission was granted. I also consider it unlikely that I would find evidence of fault.
37. The Council did not need to visit the site when Mrs B told it in late 2018 that illegal badger fencing had been attached to the bottom of the approved fence because such fencing does not require planning permission. It is not illegal for landowners to exclude badgers from their property unless they are interfering with or obstructing access to a badger sett. The Council told Mrs B that if she considered any illegal acts had taken place against badgers, she should report it to the police. I have found no evidence of fault here.

Complaint handling delays

38. The Council took around five months to respond to the complaint Mrs B made in December 2018. Mrs B then approached the Ombudsman instead of escalating her complaint to the next stage of the Council’s complaints procedure. We decided that the Council had not had the opportunity to fully consider the complaint and we asked the Council to continue its investigation.
39. Mrs B approached the Ombudsman again in October 2019 because the Council had not provided a response to her complaint. When we contacted the Council, it said that it did not investigate Mrs B’s complaint at the second stage of its complaints procedure because Mrs B had not asked it to do so. We told the Council that it should have escalated Mrs B’s complaint when we asked it to continue its investigation in June. The Council then provided further responses to Mrs B’s complaint in November and December 2019.
40. The Council significantly delayed responding to Mrs B’s complaints. This was fault and would have caused Mrs B frustration and put her to avoidable time and trouble pursuing the matter with the Council and the Ombudsman.
41. The Council has apologised and offered to pay Mrs B compensation of £250. Part of this payment relates to the Council’s error in publishing information on its website which I have not investigated for the reasons explained in the last section of this statement.

Agreed action

42. Within four weeks, the Council will make a payment of £200 to Mrs B. This is to recognise her frustration and the time and trouble she has been put to as a result of the failings identified in this case.
43. Within eight weeks, the Council will:
• decide whether to place a TPO on the woodland to the rear of Mrs B’s property and provide its decision in writing to Mrs B;
• review the way it deals with complaints to ensure responses are provided in a timely manner; and
• put procedures in place to ensure requests for TPOs are determined within a reasonable timeframe.

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Final decision

44. I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Parts of the complaint that I did not investigate

Planning permission for neighbouring extension

45. As explained in paragraph four, we will not usually investigate late complaints. I have decided that we should not investigate Mrs B’s complaint about her neighbours’ extension. This is because planning permission was granted in August 2016 and I consider it would have been reasonable for Mrs B to complain sooner.

Information requests

46. I have not investigated Mrs B’s complaint about the Council’s delay providing information she requested. This is because the Information Commissioner’s Office (ICO) is the appropriate body to consider such complaints, and Mrs B has already complained to the ICO about this.

Data protection breach

47. I have not investigated Mrs B’s complaint that the Council breached the Data Protection Act when it published her information on its website. This is because the ICO is the appropriate body to consider such complaints, and Mrs B says she has already complained to the ICO about this.

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Investigator's decision on behalf of the Ombudsman