Summary: Mr X complained about the way the Council has dealt with matters relating to trees on land he owns that are controlled by a Tree Preservation Order (TPO). Mr X believes the TPO is unnecessary and burdensome on him. We did not investigate this complaint further, because the original TPO decision was made outside our time limits for investigations, and decisions on applications for works on protected trees may be appealed to the Planning Inspectorate.

The complaint

1. Mr X complains about the way the Council deals with a woodland Tree Preservation Order (TPO) on land he owns. Mr X believes the Council has treated him less favourably than other people and has not given adequate weight to material considerations when making its decision.
2. Mr X believes the TPO causes him an unnecessary burden when he needs to manage the woodland.

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The Ombudsman’s role and powers

3. 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 further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal.

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

4. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission;
• a decision to refuse planning permission;
• conditions placed on planning permission;
• a planning enforcement notice.

5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
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)

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How I considered this complaint

7. I read the complaint and discussed it with Mr X’s representative. I read the Council’s response to the complaint and considered documents from its planning files, including the plans and the case officer’s report.
8. 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

Tree Preservation Orders

9. Councils may impose a 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.
10. The process for making a TPO is:
• a site visit to determine if the tree or trees have amenity value to the public;
• if so, a TPO is prepared, the trees are identified, plotted and classified;
• the TPO is served and made available to the public;
• objections and comments are considered; and
• a decision is made whether to confirm the TPO.
11. Once confirmed, the TPO is recorded on the local land charges register. There is no right of appeal against imposition of the TPO and the only route for legal challenge is by way of judicial review in the High Court.
12. 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.
13. A council’s decision relating to an application to carry out works on protected trees opens a right of appeal to the Planning Inspectorate.

Conservation Areas

14. Councils have the power to create Conservation Areas. These are areas considered to have special architectural or historic interest that should be preserved or enhanced.
15. Councils are under a duty to pay special attention to preserving or enhancing Conservation Areas when making decisions on planning applications. Even if a proposed development is outside a Conservation Area, councils may take account of the impact it will have upon the Conservation Area itself.
16. Within Conservation Areas, trees are given special protection, so trees of certain sizes set out in regulations cannot be removed, topped or lopped, without giving notice to the council.

Background

17. Mr X owns an area of woodland that is near a Conservation Area. The woodland is subject to a TPO. The necessity for the TPO to protect the setting of the Conservation Area was confirmed by the Planning Inspectorate.
18. Mr X feels that the TPO is unnecessary and burdensome. He is unhappy about its continued existence and with how the Council has dealt with his previous applications to carry out works on the tree.
19. In response to his complaint to the Council, he was told it would review the TPO to determine whether it was still necessary.
20. The Council has told me that it intends to begin the review of the TPO as soon as is practically possible. It says that currently, the planning service, like all council services, is affected by the impact of the coronavirus, so there could be significant delays. However, it expects it should be able to begin the review within the next 12 weeks.

My findings

21. Before we begin or continue our investigations, we need to consider whether we can achieve a meaningful outcome. I do not consider I should investigate matters relating to the original TPO further, because:
• The TPO was made many years ago, well beyond our 12-month time limit for investigations. I have seen no reason to investigate the original TPO now.
• Even if Mr X had brought his complaint about the original TPO to us sooner, it is unlikely we would have been able to find fault. This is because the process for imposition of a TPO is simple and based to a large extent on the Council’s judgement of the amenity value of the woodland.
• The amenity value of the woodland was subject to a decision by the Planning Inspectorate, which is not a body within the remit of our investigation powers.
• When making regulations relating to the imposition of TPOs, parliament did not provide a right of appeal, so the only route left for legal challenge is by way of judicial review. We are not an appeal body and cannot agree or disagree with council judgements in the absence of fault in the decision-making process.
22. I should not investigate any matter relating to any decision the Council has made for Mr X’s applications to carry out work under the TPO. This is because for decisions on applications to carry out work on trees, he has had the right of appeal to the Planning Inspectorate and I have seen no good reason why he could not have exercised that right.
23. The Council has said it will soon begin the process to review the necessity of the TPO, and during this process Mr X may put his arguments to the Council before it makes its decision. If the Council does not complete the review within a reasonable time, after giving the Council an opportunity to comment first, Mr X may complain to the Ombudsman again.

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Final decision

24. The original TPO decision was made outside our time limits for investigations and subsequent decisions carried a right of appeal to the Planning Inspectorate. I ended my investigation because further investigation is unlikely to result in a remedy or other meaningful outcome for Mr X at this time.

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Investigator's decision on behalf of the Ombudsman