Summary: Mr X complained the Council failed to properly consider his application to cut down a tree in his garden. He also said the Council concealed his application from public view. He said he was put to unnecessary time and trouble complaining to the Council. The Council was at fault when it incorrectly told Mr X his tree was covered by a Tree Protection Order. This caused Mr X to spend unnecessary time complaining to the Council. The Council has agreed to make a payment of £250 to Mr X to recognise the injustice he has suffered.

The complaint

1. Mr X complained he applied to the Council for permission to cut down the oak tree in his garden on four occasions and was refused. Specifically, he said the Council:
1. did not follow the correct process when it rejected his most recent application;
2. attempted to conceal his application from public view;
3. improperly rejected his previous applications as the tree had never been subject to a Tree Protection Order;
4. failed to advise Mr X of his appeal rights on three occasions between 1992 and 2013;
5. failed to follow its own policy and did not keep adequate records of the Tree Protection Orders in his area;
6. provided him with a TPO map which was not genuine; and
7. built houses which did not correspond with published plans and were too close to the trees in his garden.
2. Mr X said the matter has caused him stress and affected his enjoyment of his property.

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What I have investigated

3. I have investigated Mr X’s complaints 1a - 1b. I have not investigated his complaints 1c -1g for the reasons explained at paragraphs 37-38.

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The Ombudsman’s role and powers

4. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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:

• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. 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

9. I spoke with Mr X and discussed his view of the complaint.
10. I made enquiries of the Council and considered the information it and Mr X provided. This included the Council’s final response, Mr X’s complaint and correspondence between him and the Council. I considered the Ombudsman’s guidance on remedies.
11. I considered the Council and Mr X’s comments on an earlier draft decision. I wrote to Mr X and the Council and considered their comments before I made a final decision.

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What I found

Tree Preservation Order and Statutory Guidance

12. A Tree Preservation Order (TPO) makes it an offence to cut down a tree without the council’s permission.
13. A tree owner can complain about the making, confirming or amending of a TPO. Councils must consider any objections but there is no right of appeal about the order.
14. A tree owner can seek permission to carry out work on a protected tree but must make a formal application to do so.
15. Statutory guidance says councils must keep a register of all applications made for permission to carry out work on a protected tree. This register should be available to the public.
16. If an applicant is refused permission to carry out work on a protected tree, they can appeal to the Secretary of State.
17. If a council intends to revoke a TPO it can consider consulting people before doing so.

What happened

Background

18. Mr X applied to the Council for permission to cut down a tree in his garden several times in the 1990s and 2000s. The Council refused all applications on the basis that the tree was protected by a TPO. I have not investigated those events for the reasons set out in paragraphs 35-6.

Mr X’s recent complaint

19. In 2018, Mr X made a fourth application to the Council to cut down the oak tree. Mr X then contacted the Council because he could not view his application on the Council’s website.
20. The Council told Mr X his application was available to view on its website, but Mr X disagreed. The Council said data protection prevented it from adding certain details of Mr X’s application to its website however, the Council agreed to publish Mr X’s full application on its website a few days later and Mr X accepted this.
21. Whilst waiting for the Council’s decision, Mr X did some research and concluded the tree was not covered by a TPO and never had been.
22. The Council rejected Mr X’s application, saying the tree made a positive visual contribution to the neighbourhood. The Council told Mr X about his right of appeal to the Secretary of State. He chose not to use it.
23. Mr X complained to the Council in late May 2019. He said the Council had not kept proper records of TPOs in the local area and failed to ensure his house was built the correct distance from the tree in question. He also said the tree was not covered by a TPO and asked the Council to correctly update the TPO record and remove the tree at its own expense.
24. The Council met with Mr X in early July to discuss the situation then responded to Mr X’s complaint at Stage 1 of its complaints process. The Council said it would not address the parts of Mr X’s complaint concerning events which happened several years ago.
25. The Council said it was possible Mr X’s tree was not covered by a TPO and it was conducting a review of the tree stock in the area to confirm whether Mr X’s tree was covered by a TPO. The Council advised Mr X not to cut the tree down as this could cause ground heave.
26. Mr X escalated his complaint to Stage 2. He was unhappy the Council would not review the historic elements of his complaint and had not confirmed whether the tree was protected. He also wanted the Council to fell the tree.
27. The Council partially upheld Mr X’s complaint in August 2019 as it acknowledged the tree was probably not covered by a TPO. The Council offered Mr X a goodwill payment of £100. Mr X did not accept this and referred his complaint to the Ombudsman.
28. The Council inspected Mr X’s tree in January 2020 as a result of Mr X’s enquiries and confirmed to the Ombudsman, in February 2020 that the tree was not subject to a TPO.

Findings

29. Statutory guidance requires the Council to publicise applications to fell a protected tree. Mr X complains the Council failed to follow this guidance.
    The Council responded to Mr X’s complaint within several days and published his application in full on its website. The application has been available to view ever since. It did not hide his application. There was no fault in the Council’s actions.
30. The Council informed Mr X it thought his tree was protected by a TPO on several occasions but has since confirmed this was not the case. The Council uncovered this information because of Mr X’s investigation. It previously gave Mr X inaccurate information. This is fault. Mr X has suffered an injustice because he has been put to unnecessary time and trouble looking into the matter and complaining to the Council. The Council’s offer of £100 was not appropriate to remedy this injustice.
31. Mr X says the Council should bear the cost of felling the tree because it misinformed him on the first three occasions he applied to do so. Paragraph 37 explains why I will not investigate those earlier actions. The Council told Mr X about his right of appeal about its decision to refuse his 2018 application to fell the tree. It was reasonable for him to appeal if he had concerns about it.
32. Therefore, I cannot say, even on the balance of probabilities, that Mr X has suffered a specific financial loss as a direct consequence of the Council’s fault.
33. The Council has appropriately advised Mr X about the consequences of cutting the tree down. It is for Mr X to decide whether to arrange felling the tree, bearing in mind the Council’s advice.
34. Whilst the Council partly acknowledged that it was likely Mr X’s tree was not subject to a TPO, the Council informed Mr X it would confirm this after conducting a review of the TPOs in his area. Mr X has said the Council has never formally notified him of the outcome of the review. The Council responded to the Ombudsman’s enquiries in February and confirmed the tree was not covered by a TPO. It would have been best practice for the Council to also contact Mr X with this information. However, Mr X has not suffered an injustice because of this as he is aware of this information because of this investigation.

Agreed action

35. The Council has already apologised to Mr X and offered a payment for the uncertainty surrounding TPO classification in his area. Within one month of the date of my final decision the Council has agreed to pay Mr X £250 to remedy the time and trouble he was put to investigating the matter and making the complaint.

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Final decision

36. I have completed my investigation and found fault causing injustice.
    I have recommended an increase in the payment previously offered by the Council to remedy the injustice caused and the Council has agreed to this.

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Parts of the complaint that I did not investigate

37. I have not investigated Mr X’s complaints 1c - 1g. This is because these points relate to the events which happened well before 2018 and there is no good reason to exercise discretion to investigate matters which took place that long ago. Mr X could have brought his unhappiness with the Council’s actions to our attention earlier and did not do so.
38. I have also chosen not to exercise discretion to investigate 1e - 1f because even if I were to find fault, these points have not caused a personal injustice for Mr X.

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Investigator's decision on behalf of the Ombudsman