Summary: Mr B complains about the Council’s handling of matters relating to a tree the subject of a Tree Preservation Order (TPO). The Ombudsman cannot investigate the complaint because the substantive issue falls outside our jurisdiction as Mr B has appealed to the Planning Inspectorate and the secondary issues will not be pursued in isolation.

The complaint

1. The complainant, who I refer to as Mr B, complains about the Council’s handling of matters relating to a tree the subject of a TPO which is in the vicinity of his property. He says the Council has breached the Equality Act 2010 by discriminating against him and that it has failed to initiate an investigation against a councillor who has not provided him with information he has requested. He seeks compensation for costs incurred as a result of the TPO and wants the tree felled.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
3. There is a right of appeal to the Minister of State for Housing, Communities and Local Government against any refusal by a council to allow works to a tree protected by a TPO. The appeal is considered by the Planning Inspectorate on behalf of the Minister.
4. The Information Commissioner's Office considers complaints about freedom of information. Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. We provide a free service but must use public money carefully. We do not consider it is a good use of public money to investigate matters not separable from something the law says we should not investigate. (Local Government Act 1974, section 24A(6), as amended

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How I considered this complaint

6. In considering the complaint I reviewed the information provided by Mr B, including the Council’s recent letter to him. I gave Mr B the opportunity to comment on my draft decision and considered what he said.

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What I found

7. Mr B has raised numerous complaints with the Council over the years relating to a TPO introduced over 20 years ago on a tree in the vicinity of his property. Mr B wants the tree felled because of the impact it has on his property.
8. Recently, Mr B made a new application to the Council to fell the tree. This application is now the subject of an appeal Mr B has made to the Planning Inspectorate.
9. In response to Mr B’s claim about its failure to follow the Equalities Act 2010, the Council advised him that the issues he has raised will be a matter for the Inspector to decide when his appeal is determined. It also advised him that it will be addressing his concerns about the legality of the TPO when it defends his appeal and that it is open to him to seek his own legal advice on this point.

Assessment

10. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The restriction highlighted at paragraph 2 applies to this complaint because Mr B has appealed to the Planning Inspectorate. By law, this places the complaint outside our jurisdiction. It cannot be investigated, and we have no discretion on this point.
11. As Mr B has recourse to the Information Commissioner concerning his requests for information, this matter will not be considered by the Ombudsman.
12. Mr B says he is asking the Ombudsman to investigate the Council’s actions which led to the decision against which he is appealing but these are not properly separable from the appeal.
13. Mr B’s complaint about the actions of the councillor, and the Council’s refusal to initiate an investigation, is linked to the main issue of the TPO which falls outside our jurisdiction and so for this reason these secondary issues will not be considered further.

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Final decision

14. The Ombudsman cannot investigate this complaint. This is because the substantive issue falls outside our jurisdiction as Mr B has appealed to the Planning Inspectorate and the secondary issues will not be pursued in isolation.

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Investigator's decision on behalf of the Ombudsman