Summary: Mr B complains about matters related to his requests for tree preservation orders. The Ombudsman should not pursue this complaint because the matters complained of have not caused significant enough injustice.

The complaint

1. Mr B complains the Council: did not properly handle his requests for Tree Preservation Orders (TPOs); is biased in its handling of the matter; and did not deal properly with his formal complaint about these matters. Mr B states this has caused him distress and inconvenience.

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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 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)
3. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

4. I considered the information Mr B provided and information about the planning application on the Council’s website and viewed online maps and photographs of the area. I shared my draft decision with Mr B and considered his comments on it.

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What I found

5. There are trees on Council-owned land behind Mr B’s home. There is a planning application to develop the land. In June 2019 Mr B asked the Council to make Tree Preservation Orders (TPOs) on some of the trees. The Council had previously suggested it would usually decide such questions within 30 days. In July 2019 the Council said it was awaiting more information about the planning application. Mr B argued that should not prevent the Council making TPOs.
6. When Mr B complained to us in late December 2019 the Council had not said whether it would make any TPOs. The Council stated some of the trees on the site have ‘TPO potential.’ It said it was still awaiting more information about the planning application, after which it would decide whether it would be better to protect trees by TPOs or by putting conditions on any planning permission.
7. As paragraph 2 explained, I must consider whether the Council’s alleged fault in its handling of Mr B’s requests and in its attitude towards the planning applicant caused Mr B a significant enough injustice for the Ombudsman to investigate.
8. I recognise Mr B’s concern about the amenity value of trees near his home. The Council has not made firm decisions about applying TPOs or planning conditions to the trees. So there is no injustice to Mr B in terms of loss of the trees. Nor does he currently have an injustice about his future amenity in the way he might if the Council had decided against making TPOs or planning conditions protecting the trees. Also, a TPO does not provide complete protection. Even had the Council imposed TPOs as Mr B wanted, that would not necessarily prevent a later planning permission overriding such TPOs.
9. Overall, therefore, the Council’s handling of the matters Mr B complains of have not caused him a significant injustice in terms of actual or potential impact on the trees.
10. The fact the Council has not decided whether to make TPOs does, of course, leave Mr B with some uncertainty about what might happen. I appreciate such uncertainty is unwelcome and has continued longer than expected. However, I do not consider uncertainty about what the Council might decide about TPOs is a significant enough injustice to investigate. Also, even if the Council were to end the uncertainty by deciding whether to make TPOs, the Council would not necessarily make a decision Mr B wants.
11. So, overall, I do not consider uncertainty from the Council not having decided whether to make TPOs amounts to a significant enough injustice to warrant the Ombudsman devoting time and public money to investigating whether the Council mishandled Mr B’s requests and whether it is biased towards the planning applicant.
12. Responding to a draft of this decision, Mr B argued I had understated the uncertainty point. I have considered this but am not persuaded. It remains my view that the uncertainty from the lack of a decision is not a significant enough injustice for the Ombudsman to investigate, for the reasons given above.
13. Mr B’s response to my draft decision also argued the Council has not properly followed guidance that allows members of the public to ask the Council to consider making TPOs. That is an allegation of fault. As I do not consider any fault has caused a significant injustice, I need not consider the allegation of fault further.
14. Mr B cited one of our factsheets, which states, ‘We will not uphold your complaint if the council followed the proper procedures, law and guidance…’ He states this suggests we will consider a complaint if the Council’s adherence to the guidance is questionable. However, that is not necessarily the case. This is only one of several points we consider when deciding whether to investigate. Points we must also consider include whether the alleged fault caused a significant enough injustice to warrant investigation. In this case, I do not consider there is sufficient injustice.
15. Mr B says the Council’s first response to his formal complaint about the matter was inadequate. He reports this caused him anger and he then spent several hours making a stage two complaint. For the reasons given in paragraph 3 we shall not pursue this point about the Council’s complaint-handling when we are not investigating the substantive complaint about the TPO request.
16. Even if I considered the events complained of had caused a significant injustice, it is unlikely any investigation would find that such injustice resulted directly from any fault by the Council. While the Council normally aims to decide TPO requests within 30 days, there is no duty to do so. Here, the Council said it considered it expedient to await more information about how the proposed development might affect the trees, then decide whether TPOs or planning conditions would be the suitable way to protect trees. There is no fault in that, as the Council has discretion about how to act and as a TPO might not achieve long-term protection because a later planning permission could override it. Therefore I do not consider there is enough evidence of fault causing injustice to warrant investigation.
17. I note the Council accepts it took too long to acknowledge Mr B’s request for TPOs and to explain why it was not deciding the matter then. The Council apologised for that, which I consider a suitable remedy in the circumstances.

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Final decision

18. The Ombudsman should not investigate this complaint. This is because there is not enough injustice and not enough evidence of fault to warrant investigation.

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Investigator's decision on behalf of the Ombudsman