Summary: Mr X complained about the Council’s failure to prevent a developer from cutting back roadside hedges during the bird nesting season. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council allowing a developer to damage hedgerows alongside a highway during the bird nesting season. He says this is an offence under the Wildlife and Countryside Act 1981 and the Council should have prevented it.

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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 or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response and Mr X has been given the opportunity to comment on the draft decision.

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What I found

4. Mr X says a developer damaged or removed hedges alongside a public highway as preparatory work for a large development on the site. He says the Council should have acted to prevent this because it is a criminal offence under the Wildlife and Countryside Act to disturb or destroy nesting birds.
5. The Council had previously refused the application, but it was approved on appeal by a Government Planning Inspector. The planning permission is for a limited period of years but cannot specify when the developer starts work. The developer is responsible for carrying out work which complies with the law. If the damage was an offence under criminal law, then the Police will decide if a crime has occurred. The Council forwarded Mr X’s complaint to the Wildlife Crime Officer at the local Police at the time.
6. 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. In this case the alleged crime was not a planning matter which the Council could have considered taking enforcement action over.

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Final decision

7. The Ombudsman should not investigate this complaint. This is because there is insufficient evidence of fault which would warrant an investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman