Summary: Mr B complains the Council erred in making a tree preservation order and that since that decision was made the tree has caused significant damage to his property, for which he considers the Council liable. Further investigation by the Ombudsman is unlikely to add to the investigation already carried out by the Council or lead to a different outcome, and significantly the question of liability for damage to Mr B’s property would be a matter for the courts to determine. The Ombudsman therefore discontinued his consideration of this complaint.

The complaint

1. The complainant, whom I shall call Mr B, complains that there was fault in the way the Council reached its decision to make a tree preservation order (TPO). Mr B says the damage the protected tree is causing to his property has increased since the Council’s decision.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

6. I have considered all the information provided by Mr B about his complaint, including the complaints correspondence with the Council.
7. Mr B and the Council had an opportunity to comment on a draft of this decision, and I took account of all comments received before making my final decision.

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What I found

Legal and administrative information

8. Councils have powers under the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012 to put TPOs on trees they consider should be protected.
9. The formal TPO process begins when a council issues a provisional TPO. The council must tell the owner of the tree, or any other relevant party, that it has issued the TPO. The notice must explain how they can appeal against the decision to issue the TPO. In the first four weeks after the issue date, the owner or other affected party can lodge objections with the council, if they wish to argue the provisional TPO should not remain. The council must consider representations it has received about the TPO. The council must decide whether to confirm the TPO making it permanent, allow the provisional TPO to expire, vary the TPO, or revoke it.
10. Once a tree is protected by a confirmed TPO, it does not prevent all work to the tree. For significant work on living parts of the tree, such as removal, pruning or lopping, the tree’s owner needs to apply to the council for consent.

What happened in this case

11. This complaint is about a large oak tree which is in the garden of Mr B’s neighbour, Mr C. In February 2018 Mr B contacted the Council because he and Mr C planned to do works to the tree, or to remove it. The tree had not previously been protected. Following Mr B’s enquiry, the tree was deemed to meet the criteria of being threatened its tree officer decided to make a TPO protecting this tree, and another one in Mr C’s garden, while gathering further evidence.

The tree is assessed for a TPO

12. As part of the decision-making process, the Council’s Tree Officer at the time, Officer X, visited to assess the tree. He completed a TPO assessment form which included the various considerations necessary to assist in determining whether a TPO of a particular tree may be warranted. The form used in this case included guidance stating that in respect of impact on a building, where a scoring in the ‘high’ category is awarded due to the tree being less than 6 metres from a building, the tree should not be scheduled for a TPO unless there are extenuating circumstances. The officer recorded his assessment of the trees’ visual amenity value, health, impact on surrounding structures and special impact considerations. In the section about impact considerations, the officer noted Mr B’s garage was approximately six metres from the tree, although Mr B reports that this was an under-estimation and that in fact the tree is only four metres from his garage and less than six metres from his house.

The TPO is considered and confirmed by committee

13. Mr B objected to the TPO. In his objection letter he said the tree was under six metres from his house and garage and the grounds for his objection included damage to his garage and driveway. The matter was referred to committee so that Members could decide whether to confirm the TPO, and before the committee meeting there was a site visit by the Members. In his report for committee, Officer X noted that substantial pruning and crown height reduction suggested by Mr B would be detrimental to the health of the tree and to the amenity it offers to the local landscape. It said no evidence had been forthcoming to attribute structural issues reported by Mr B to the tree, and the tree owner had a legal duty of care in respect of the safety of the tree. The officer’s recommendation to the committee after considering Mr B’s objections was that the Council should confirm the TPO. The assessment form was included as an appendix to the officer report, but the report did not explicitly set out what the officer had considered were the extenuating circumstances in the case.
14. At the committee meeting, one of the Members said he had noted Mr B’s objections and he moved that the TPO be refused. Another Member seconded this motion. Officer X then made several points including expressing his professional opinion that the tree was of sufficient quality and amenity to warrant protection. The committee then resolved that the TPO be confirmed, with 11 votes out of 12 in favour.
15. Mr B did not complain to us about the Council’s decision within 12 months. He says that although he was disappointed with the outcome of the meeting, he was not aware at that time of any actual shortcomings in rules or procedures that would give him grounds to complain.

What happened next

16. Mr B says in the summer of 2018 he asked the Council to revoke the TPO because of the rapidly increasing damage to his property. The Council advised him to make a claim through his insurer which he then did. He reports that the insurer rejected his claim in December 2018 on the basis his house foundations were not affected.
17. Mr B says that it was not until August 2019 when he carefully studied the TPO Assessment Form, which he found on the Council’s website, that he noticed the section of the form referred to in paragraph 12 above, where reference is made to extenuating circumstances being necessary for a TPO where impact on a building is assessed as high (within a 6 metre distance). Extenuating circumstances had not been documented.
18. Responding to his complaint the Council accepted there were occasions where it did not fully respond to Mr B’s questions or delayed answering them. But its view is any liability for damage to Mr B’s property by the tree would lie with the owner of the tree.

Analysis

19. Mr B can apply to the Council for consent to fell the tree. He is concerned about the costs of obtaining necessary reports from professionals to support such an application, and takes the view that the Council would be unlikely to agree to such an application in any event. Nevertheless, that is the appropriate way to seek consent to works on protected trees. Mr B takes the view that the Council should revoke the TPO so such action would not be necessary. However, notwithstanding the fact that extenuating circumstances in respect of making of the order were not specifically noted by the tree officer at the time, it is clear that Members had available to them all the relevant information including the assessment form with its rubric, the tree officer’s views, and the grounds of objection, as well as having the benefit of a site visit. It was for the Members to familiarise themselves with all the relevant documentation and if they considered they did not have sufficient detail to inform a decision to confirm or refuse the order, they could have raised that at committee. On balance, further investigation by the Ombudsman is unlikely to add to the investigation already carried out by the Council or lead to a different outcome.
20. In any event, the key consideration is one of injustice. Mr B believes that because of fault by the Council in this matter significant damage has occurred to his property. He considers the Council is liable for that damage. It is not unreasonable to expect Mr B to go to court to seek a remedy for such damage, because the question of whether the Council is liable for this is a legal matter. A court of law is the appropriate body to decide contested questions of law (such as alleged negligence) and liability, whether damages must be paid by the Council and to enforce any award of damages.

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Final decision

21. For the reasons set out above I have discontinued my consideration of this complaint.

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Investigator's decision on behalf of the Ombudsman