Summary: Mr X complained about the way the Council dealt with a Tree Preservation Order. Based on the information seen so far, we should not investigate this complaint further, as we are unlikely to find fault or achieve a meaningful outcome.

The complaint

1. Mr X complains about the way the Council made its decision in relation to a protected tree on his property. Mr X says members of the Council’s planning committee were not familiar with tree protection issues and seemed ill-equipped to make the decision. Mr X is also unhappy that the Council’s meeting was recorded and published on the internet.

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The Ombudsman’s role and powers

2. 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)
3. 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
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

4. I read the complaint and discussed it with Mr X. I read the Council’s response to the complaint and considered documents from its planning files, including the tree preservation application, comments from consultees and the Council’s decision.
5. I gave the Council and Mr X an opportunity to comment on a draft of this decision and took account of the comments I received.

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What I found

Planning law and tree protection

6. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• cutting down;
• topping;

lopping;

• uprooting; and
• wilful damage and destruction.
3. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within six months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.
4. Before a decision is made, we would expect the decision-maker to be aware of the material considerations, which are likely to include:
• a description of the proposed works and site;
• comments from neighbours and other consultees;
• relevant policy and guidance;
• an appraisal of the main planning considerations, such as the impact on amenity; and
• the tree or planning officer’s recommendation.
5. It is well established law that, what is said by individual members during a committee debate should not generally be used as evidence of a decision’s reasons. The courts will only intervene if there is clear evidence that shows a committee was misled. When making this decision, the courts will consider evidence such as:
• the documents considered by the committee;
• the wording of the decision itself; and
• the minutes of the meeting.
6. The reasons the courts have given for taking this approach include the following:
• It is often impossible to determine the motives for statements made by committee members, and how, in turn, these statements influence other decision-makers.
• The role of council committee members is to act as the public voice in decision-making. The analysis of committee discussion by the courts, might appear like interference in political debate.
• While members receive some training on policy and legal matters, we cannot expect them to have relevant qualifications or professional experience, so they may occasionally make statements that are not relevant or legally correct.
• If the comments of individual committee members were readily subject to legal challenge, it is unlikely that many committee decisions would stand.
7. The conduct of committee meetings is a matter for the chairperson.

What happened

12. Mr X bought a house that had a large tree in his garden. He considered it was unsafe so planned to remove it. His neighbour contacted the Council, but as the tree officer was unavailable, the Council arranged for an officer from the County Council to visit.
13. The County Council officer considered the tree had public amenity value and so imposed a TPO. This meant that Mr X could not lawfully carry out works without written consent of the Council. Mr X applied for permission to remove the tree.
14. Mr X says the first meeting he attended did not go well. He says members of the planning committee did not appear to understand the Council’s tree protection powers and processes. He also said that some members stopped the meeting and asked for comments to be repeated, as they had not heard them. Mr X says he would have expected the meeting to have been conducted in a more professional manner and the planning issues more carefully considered.
15. Eventually, Mr X’s request to carry out works to remove the tree was agreed. Mr X says he does not disagree with the decisions the Council made, but considers the process was poor and the evidence was not carefully considered.

My findings

16. I realise Mr X may have found the process frustrating, but we may only investigate complaints where we can demonstrate an alleged fault has caused a significant injustice. I do not consider that to be the case here, and my reasons for this are as follows:
• I have seen no evidence to suggest the County Council officer was not entitled to form the opinion the tree was of amenity value and required protection. We are not an appeal body for judgements such as these. A different officer on a different day might have made a different judgement: this is simple reality of decision-making based on individual judgement calls.
• Mr X was not impressed with the conduct of members, but member conduct during the meeting is a matter for the chair of the meeting to manage and decide. The committee itself decides when it is ready to vote on the outcome. Ultimately, members are held to account directly by the electorate at the ballot box.
• Mr X’s complaints are about how well the committee understood the issues and how professionally it dealt with them. Members are lay people. We do not expect them to be planning professionals, but they must consider the opinions of officers, including tree, planning and monitoring officers.
• These are not complaints about the process that was followed. We are not an appeal body and so cannot comment on the merits of judgements or decisions in the absence of fault in the process. We cannot make a judgement about what would amount to ‘careful consideration’ or a ‘professional manner’ without making judgements about planning issues.
• Mr X was eventually allowed to remove the tree and though this was after some delay and inconvenience, councils are entitled to consider whether the public interests override those of individual applicants. A certain amount of delay and inconvenience is an inevitable part of the process.
• Council planning meetings are held in public and many councils do publish recordings on the internet. There is information about how the Council publicises meetings on its website, though the information is not easy to find. I have found no fault so will make no formal recommendation, but I wrote to the Council separately to suggest how it might improve its practice. The Council said it will review information on its website.
17. For these reasons, I do not consider further investigation of Mr X’s complaint about the way the Council considered tree protection matters is justified.
18. Mr X also complains the Council failed to follow its complaints procedure. We do not usually investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

19. I ended my investigation, as it is unlikely to result in a finding of fault or a meaningful outcome.

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Investigator's decision on behalf of the Ombudsman