Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s assessment of a tree covered by a Tree Preservation Order, and its decision not to allow him to lop or remove it. Mr X had a right of appeal to the Planning Inspectorate against the Council’s decision which it was reasonable for him to have used. The appeal was the appropriate formal route for him to follow to challenge the decision and how it was made, and get the permission he wants.

The complaint

1. Mr X has a tree in his back garden which is covered by a Tree Preservation Order (TPO). He made a planning application to the Council to remove or do works to it. He complains the Council did not properly assess the tree, and refused him his permission.
2. Mr X says the tree is causing damage to his property and causes health and safety problems.

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The Ombudsman’s role and powers

3. 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))
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.

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• read relevant online documents for Mr X’s TPO planning application to work on the tree;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

6. Where a tree is covered by a TPO, anyone wanting to do work to it or remove it should make a planning application to the relevant local planning authority. The council should then gather information about the tree and decide the application. If the council refuses the permission, the planning applicant has a right of appeal to the Planning Inspectorate (PINS) to challenge the council’s decision.
7. The Ombudsman will not investigate Mr X’s complaint. Mr X had a right of appeal to the PINS against the Council’s decision to refuse his application. The Council’s formal Decision Notice gave Mr X the necessary information for him to use that appeal right. So the Council made him aware of his appeal right and how he could use it.
8. The Ombudsman may decide to investigate if he considers it would be unreasonable to expect an applicant to appeal. I do not consider it would have been unreasonable for Mr X to appeal to the PINS because:
• it was the appropriate formal route, provided by national government, for him to dispute the Council’s planning decision;
• the PINS has the power to overturn the Council’s planning decision and may provide the permission Mr X wants, whereas the Ombudsman does not have that power.
9. Mr X considers Council’s tree officer would not have been able to properly assess the impact of the tree from 20 metres away, and not without entering his back garden. But in his appeal, Mr X could have raised his concerns about the way the Council assessed the tree. It would have then been for the PINS to determine if how the Council did its assessment meant their refusal decision was unsound.
10. It is open to Mr X to make another planning application to the Council regarding the tree. It would fall to the Council to consider it and reach a new decision. If the Council refuses the application, this would give Mr X a fresh right of appeal to the PINS.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because Mr X had a right of appeal to the PINS, and it would have been reasonable for him to use that appeal to pursue the outcome he wants.

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Investigator's decision on behalf of the Ombudsman