Summary: Mr Y complained the Council failed to review or update a Tree Preservation Order covering his property and warned him it could take enforcement action. Mr Y says the Council’s warning about enforcement action caused him upset and worry. The Council was not at fault.

The complaint

1. Mr Y complained the Council failed to review or update a Tree Preservation Order covering his property.
2. Mr Y said the Council did not know what trees remained on his property when it carried out a site visit. He said he felt the Council had wasted his time and warned about enforcement action causing him upset and worry.

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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. I have exercised discretion in this case to consider what happened since 2017 as this is when Mr Y asked for a review of the Tree Preservation Order when making an application to carry out work on protected trees. As he has been in regular contact with the Council about the same issues since this date, I have considered this a suitable date to investigate from.
6. 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

7. I have spoken to Mr Y and considered the information provided by the Council in response to my enquiries.
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

9. A Council can make a Tree Preservation Order (TPO) to protect specific trees, groups of trees or woodlands.
10. A TPO forbids the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees without the local planning authority’s consent. If the Council gives consent, it can be subject to conditions which must be followed. Responsibility for maintaining the tree lies with the owner.
11. Councils can vary or revoke a TPO. Where there are significant changes to trees and tree groups under a TPO a Council may vary the TPO to reflect the changes. If the Council varies a TPO it must tell those affected by the change.

Enforcing tree protection offences

12. The government has published guidance on TPOs and enforcement of tree protection offences. Anyone who contravenes a TPO by damaging or carrying out work on a tree protected by an Order without getting permission from the council is guilty of an offence and may be fined.
13. The Town and Country Planning Act provides that anyone who, in contravention of a TPO:
• cuts down, uproots or wilfully destroys a tree; or
• tops, lops or wilfully damages a tree in a way that is likely to destroy it; or
• causes or permits such activities

is guilty of an offence.

14. The guidance explains, councils have a number of options for action against unauthorised works to protected trees. Councils may:
• do nothing – but only if justified by the particular circumstances;
• negotiate with the owner to remedy the works to the satisfaction of the authority;
• consider the option of issuing an informal warning to impress on the tree owner or others suspected of unauthorised works that such work may lead to prosecution;
• seek an injunction to stop on-going works and prevent anticipated breaches; or
• consider whether the tests for commencing prosecution are met.
15. The Council’s “Illegal Tree Work Procedure” explains the enforcement action that it can take if a TPO is breached. Action can include writing to the landowner or contractor, issuing a formal caution or prosecution.

What happened

16. The Council made a TPO to protect several groups of trees in 1982. Two groups of trees protected under the TPO are on land Mr Y bought in 1990.
17. Mr Y says he contacted the Council several times from 1990 onwards to discuss and agree the maintenance, removal and replacement of several trees on his property.
18. The Council’s records show it gave consent to Mr Y to do tree work several times since he purchased the property.
19. Each time the Council agreed to the work, the consent was subject to a reputable tree surgeon completing the work to the correct standard.
20. In 2017 Mr Y applied to the Council for further tree work. The Council asked for more information before it could grant consent. Mr Y provided the information and told the Council the TPO was out of date when he moved into the property, because a previous owner had already removed one of the protected trees. He asked the Council to either update or revoke the TPO as the land has changed since the Council made the TPO.
21. Following a site visit in 2017 the Council said the TPO included trees that were missing from Mr Y’s land. It said as it had previously identified the groups of trees, it did not intend to remove these trees from the existing TPO.
22. From 2017 onwards, Mr Y continued to write to the Council asking for clarification about the TPO before making a complaint in March 2019. Mr Y complained that the TPO had not been reviewed and had become outdated and unreliable as a result. He asked the Council to revoke the TPO. He also complained the Council had said it may take enforcement action for the poor standard of work done on Mr Y’s trees.
23. In April 2019, the Council made a second site visit to Mr Y’s property. The site visit notes state the Council’s officer identified the groups of trees in the TPO.
24. The officer’s notes suggested updating the TPO records either by adding notes to the file or by revoking the existing TPO before making a new TPO.
25. The records show the officer’s professional opinion was that it was expedient to add notes to the file as it would be unreasonable to allocate additional resources to review the TPO further. The officer also recorded that the Council would need to consider enforcement action because of the poor standard of tree work on remaining trees.
26. The Council responded to the complaint in June 2019. It said there were two options; to revoke the existing TPO and create a new one or to place the site visit notes on the TPO file as an update. It explained that in revoking the TPO it would need to review several groups of trees in the area, not just the trees on Mr Y’s land and would also mean the Council would be unable to enforce replacement planting for trees which were no longer in a suitable condition to be protected under a new TPO, even if they had been included in the previous TPO. The Council said the TPO was a low priority for review and given its concerns if it revoked the TPO, it would not revoke the TPO as this was not the best use of its limited resources.
27. The Council also told Mr Y it could take enforcement action because of the poor condition of protected trees following recent work. While it had decided not to take further action on that occasion, it explained Mr Y and the contractor who carried out the work risked a significant fine because of the poor standard of work.

Findings

Failing to keep records up-to-date or review the TPO made in 1982

28. Councils can vary TPOs but are not under an obligation to amend TPOs when work is completed on trees. The Council has kept records of applications Mr Y has made to complete work on the trees on his land over a number of years.
29. Mr Y is concerned the applications for tree work he has put into the Council previously have not updated the details of the TPO and how the trees have changed over time. However, the Council has considered the TPO each time and has a record of applications made and agreed to add the site visit notes to update the TPO records. Consequently, there is no injustice to Mr Y and any potential future injustice has been prevented.
30. For the last application Mr Y made to do work on the trees on his property, the Council has considered, at Mr Y’s request, whether to revoke the TPO. In its complaint response in June 2019, the Council outlined the options for updating the TPO records. This included adding the site visit notes to the file or completing a full review of the TPO, including several other groups of trees which were not on Mr Y’s land.
31. The Council explained how it had considered these different options and the effects of revoking the TPO if it chose to do so. This included the Council’s concerns that it would be unable to enforce replanting of trees, if existing trees, which had become damaged and would not be in a good enough condition to continue protection, were not included in a new TPO.
32. In addition to these concerns, the Council explained the TPO was a low priority for review and given its concerns and limited resources the Council would not be revoking the TPO. It instead chose to update the TPO file with the site visit notes.
33. 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.
34. As the Council properly considered and recorded its reasoning for rejecting Mr Y’s request, I have found no fault in its decision-making process.

Warned about enforcement action

35. As part of the site visit made in April 2019, the Council found the work recently completed on Mr Y’s trees to be below the required standard. In its complaint response, the Council warned Mr Y, if there were future breaches it could enforce the TPO which could result in significant fines for him and the contractor.
36. As the Council had found damage to trees subject to a TPO, it was within its power to take enforcement action.
37. The Council used its discretion to write to Mr Y rather than carry out further enforcement action in that instance. As this is in line with its policy, I have not found the Council at fault for warning Mr Y about its enforcement powers.

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Final decision

38. I have completed my investigation to find the Council was not at fault in this complaint.

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Investigator's decision on behalf of the Ombudsman