Summary: The Ombudsman will not investigate this complaint about a Tree Preservation Order which was made in 2005 or about the Council’s response in 2019. This is because it is a late complaint and because there is insufficient evidence of fault by the Council. In addition, the complainant could appeal to the Planning Inspector.

The complaint

1. The complainant, whom I refer to as Mr X, complains about a Tree Preservation Order (TPO) which was made in 2005. He also says the Council will not let him do work to the tree. Mr X would like the Council to revoke the TPO.

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The Ombudsman’s role and powers

2. 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 an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. The Planning Inspector (acting as a government minister) considers appeals about consent to do work to a protected tree.

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How I considered this complaint

6. I read the complaint and got some information from the Council. This includes a letter the Council sent to Mr X in May 2019. I considered comments Mr X made in response to a draft of this decision.

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What I found

TPO

7. If a tree is protected by a TPO the owner must get permission from the Council to do work to the tree. If the owner disagrees with the outcome of a request they can appeal to the Planning Inspector.

What happened

8. There is a tree in Mr X’s garden. In 2004 the Council made a provisional TPO. The plan showed the tree to be in the wrong location. The Planning Committee confirmed the TPO in 2005 and made a modification regarding the location of the tree and the plan. The Council confirmed the TPO and sent Mr X a copy of the final TPO notice in 2005.
9. Mr X met the Council’s tree officer in 2019 and discussed doing work to the tree. The Council gave advice as to what work was likely to be approved and invited Mr X to make an application for consent to do work to the tree. The Council has not received an application from Mr X.
10. Mr X says the Council made a TPO for a tree in the wrong garden. He implies the TPO is not legal and was created on the whim of an officer. He says the Council will only let him do minor work which will not be enough to remove the problems the tree is creating for Mr X and his neighbours. Mr X wants the Council to revoke the TPO. The Council has not received a request from Mr X to revoke the TPO.

Assessment

11. I will not start an investigation for the following reasons.
12. The TPO was confirmed in 2005 but Mr X did not complain about it to the Ombudsman until 2019. This is significantly longer than 12 months. If Mr X had wanted to challenge the TPO he needed to have done so promptly. This is a late complaint and I have not seen any good reason to investigate a complaint which is nearly 15 years old.
13. There is insufficient evidence of fault by the Council. The Council has given advice as to what tree work it may approve and it has invited Mr X to make an application. The Council has not refused consent to do tree work because it has not received an application from Mr X. Mr X can make an application to do tree work. If Mr X disagrees with the Council’s response he can appeal to the Planning Inspector. It is reasonable to expect him to appeal because the Planning Inspector is the appropriate body to consider TPO disputes.
14. Mr X would need to ask the Council to revoke the TPO. The Council would have to be satisfied that the reasons for granting the TPO no longer existed. This would be a decision for the Council to make, not the Ombudsman. In addition, the Ombudsman has no power to direct the Council to revoke a TPO.

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Final decision

15. I will not start an investigation because this is a late complaint and because there is insufficient evidence of fault by the Council. In addition, Mr X could appeal to the Planning Inspector.

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Investigator's decision on behalf of the Ombudsman