Summary: We will not investigate Mr X’s complaint that the Council wrongly made a tree preservation order on his trees, caused him to delay making a planning application for housing and breached data protection. Mr X had legal remedies to challenge some Council decisions and complains late about actions in 2018. The Ombudsman cannot achieve the removal of the tree preservation orders. Mr X may go to the Information Commissioner about the handling of personal data.

The complaint

1. Complaint 1: Mr X complains that the Council in 2018 wrongly made tree preservation orders on two trees he owns. Mr X says the Council failed to assess the trees properly and that they have no amenity value. He says the case officer was unprofessional. He says the Council failed to notify him of its decision so he could not appeal. Mr X wants the Council to revoke the tree preservation orders.
2. Complaint 2: Mr X complains that the Council’s actions on the trees caused him to delay, until summer 2019, submitting his planning application to build houses on the site and he lost a year. He says he wanted to apply for more houses. The Council put back his application three times and did not approve it until early 2020. He says it treated him unfairly and discriminated against him.
3. Complaint 3: Mr X complains that the Council breached data protection and copyright law by uploading onto its website an objection to his planning application which included the personal details of him, his business partner, and their wives. He also says there was a breach of confidentiality because his neighbour knew about his intention to apply for planning permission before it was public knowledge.

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The Ombudsman’s role and powers

4. 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
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

5. 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)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. 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))
8. 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
• refusal to fell a tree/remove a tree preservation order.

9. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

10. I have considered Mr X’s information, comments and reply to my draft decision statement. I have discussed the complaint with him by telephone. I have considered the complaint correspondence and information on the Council’s planning website. I have considered the law relating to tree preservation orders. The Council has provided a copy of the notifications sent to Mr X and his business partner.

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What I found

11. The Town and Country Planning (Tree Preservation) (England) Regulations 2012 explain the actions a local authority must take regarding a tree preservation order (TPO). Where a local authority makes a temporary TPO it must notify those concerned that they have a right to object (regulation 5). The regulations say a local authority must consider objections and has 6 months to confirm the making of the order. A local authority must serve a copy of a permanent TPO on the person affected and explain the grounds for challenge at the High Court (regulation 8). Where a local authority refuses consent to remove a tree subject to a TPO there is a right of appeal to the planning inspector (regulation 19).
12. Mr X and his business partner own a property with a large garden on which they decided to build housing. Mr X’s neighbour works for the Council and requested the Council consider making tree preservation orders (TPO’s). On 24 May 2018, the Council delivered to Mr X, by hand, a TPO. The notice says, ‘we have made the order as the trees are healthy specimens with a high amenity value, therefore are worthy of protection and contribute visually to the wider area’. The Council included a requisition for information form which Mr X and his partner returned signed on 31 May 2018.
13. Mr X says the officer who delivered the notice did not know that there were two trees affected. He suspects that the Council had not visited the site or properly assessed before making its decision. The Council says it applied an emergency TPO because it had information that Mr X had ‘ring-barked’ trees to kill them. It confirms the neighbour works in the tree department but says he reported the issue as a member of the public.
14. Mr X objected to the TPO and provided his own report. On 24 October 2018, the Council wrote to parties, including Mr X and his business partner, with confirmation it had made the TPO permanent. The covering letter explains there is a time limited right to challenge the decision at the High Court including where the requirements of the law are not met. On 10 November 2018 Mr X emailed the Council confirming he had received the notification. He informed the Council the decision letter was wrong to say it had not received objections.
15. The Council says before reaching its final decision it considered Mr X’s objections and evidence. The Council’s complaint reply apologises for the ‘error’ in recording Mr X’s objections and says that officers have been reminded of the correct procedure. In January 2019, the Council met with Mr X and decided to review its decision on the TPO’s. It later confirmed the TPO’s would remain. It did not issue a further notice.
16. In the summer of 2019, Mr X applied to build housing. Early in 2020 the Council granted planning permission. Planning condition 11 requires the submission of a tree protection plan to protect all the existing trees on and adjacent to the site (within 10 metres) which the Council considers provide important amenity value in the locality. The Council’s complaint reply says the TPO issue/existence of the trees made no difference to its preapplication advice about the number of houses that could be built on the site which was less than Mr X wanted.
17. Mr X says on 11 September 2019 information was uploaded onto the Council’s website as part of an objection to his planning application. The information was from the land registry and included his personal details. Mr X says he contacted the Information Commissioner. On 13 September, the Council redacted the information and reposted it on the planning file. Mr X says the information was a breach of copyright and prejudiced people against his planning application. He says objections were based on it. The Council removed the document on 25 September. Mr X says the Council breached confidentiality because his neighbour, in a conversation with his business partner, revealed he knew about their intention to apply for planning permission before they submitted the application.
18. We received Mr X’s complaint on 24 January 2020 and sent it to the Council to deal with as premature to this office. The Council replied to the complaint in July and October explaining why it believes the TPO’s are appropriate.
19. The Council’s complaint replies say Mr X is due to make a reserved matters application regarding the landscaping scheme and that it will considering lifting the TPO’s when considering the scheme. It says it sent Mr X a warning letter not a nuisance notice regarding having a fire in his garden. It does not accept it broke copyright or data protection law. It advised Mr X of his right to go to the Information Commissioner.

Analysis

20. I will not investigate Mr X’s complaint for the following reasons:
21. Complaint 1: The Tree Preservation Orders
22. Mr X’s complaint about the Council’s actions in 2018 is outside the Ombudsman’s jurisdiction. He complains late due to being outside the permitted period of 12 months (see paragraph 5 above). This includes the Council’s assessment and notifications regarding the TPO’s. I will not exercise discretion to exercise because Mr X could have complained sooner.
23. The TPO’s are outside jurisdiction because Mr X had a legal remedy at the high court on a point of law (paragraph 6). This includes procedural flaws. The Council notified Mr X of his right to appeal in October 2018 (paragraph 14). I consider it reasonable for Mr X and his business partner to have used their right of appeal. The Court has the power to quash the TPO.
24. We cannot achieve the outcome Mr X wants which is the removal of the TPO’s. Mr X has two ways forward:
1. He can accept the Council’s offer to discuss the TPO’s as part of his reserved matters application (paragraph 19).
2. He may apply to the Council for permission to fell the trees/remove the TPO’s. If he is refused Mr X will have a right of appeal to the planning inspector (paragraph 8). I consider it would be reasonable for Mr X to pursue such a course because the planning inspector can quash the TPO’s.
25. Complaint 2: The Planning Application
26. It was for Mr X and his business partner to decide when to submit a planning application and how many dwellings they chose to apply for. A complaint about delay in handling the application is outside the Ombudsman’s jurisdiction because of the right to appeal to the planning inspector (see paragraph 7 and 8). It would have been reasonable to appeal if the delay was significant.
27. Complaint 3: Data Protection and Confidentiality
28. I have not seen evidence that the Council caused Mr X injustice. Mr X can complain to the Information Commissioner if he believes the Council did not handle his personal information properly.

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Final decision

29. The Ombudsman will not investigate Mr X’s complaint that the Council wrongly made a tree preservation on his trees, caused him to delay a planning application for housing, and breached data protection. Mr X had legal remedies to challenge some Council decisions and complains late about actions in 2018. The Ombudsman cannot achieve the removal of the tree preservation orders. Mr X may go to the information commissioner about the handling of his personal data.

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Investigator's decision on behalf of the Ombudsman