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Nottinghamshire County Council (19 021 076)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 07 Aug 2020

The Ombudsman's final decision:

Summary: Mr X complains the Council will not allow him to hire a tree surgeon to scale a tree outside his property and remove overhanging branches. He says the resulting bird faeces are hazardous and falling branches are damaging his car. The Council was at fault for failing to properly consider Mr X’s request. The Council has agreed to reconsider its decision.

The complaint

  1. Mr X complains the Council will not allow him to hire a tree surgeon to scale a tree outside his property and remove overhanging branches. He also says he was incorrectly told the tree had a Tree Protection Order and so could not be trimmed.
  2. He says this means his car and drive are exposed to large quantities of bird faeces that are hazardous for him to clear away. He says falling branches are damaging his car.

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The Ombudsman’s role and powers

  1. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  4. 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.
  5. Mr X first complained to the Council in 2006. He continued to speak to the Council about the tree until he complained again in January 2020. The Council responded the same month. There is no good reason to investigate further back than 12 months from the date Mr X received the response to his January 2020 complaint.
  6. I have not investigated Mr X’s complaint about damage to his car caused by falling branches. This would be a private legal matter between Mr X and the Council. Mr X may wish to seek legal advice about whether he has a claim against the Council.

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How I considered this complaint

  1. I have considered:
    • all the information Mr X provided and discussed the complaint with him;
    • the Council’s comments about the complaint and the supporting documents it provided; and
    • council policies, relevant law and guidance and our guidance on remedies.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

  1. A council may own trees, for example on the highway or in public open spaces.  Councils should ensure ‘highway trees’ are safe for highway users and users of adjacent land.
  2. The Council’s “Tree Conservation and Maintenance” policy says trees cannot be cut down, pruned or damaged without permission. It also says that the Council should act to alleviate nuisance to nearby properties. It does not refer to damage to cars or health.
  3. The Council’s “Highway Network Management Plan” says it will maintain trees within the highway where there are safety concerns.
  4. The “Well-Maintained Highways Code of Practice for Highway Maintenance Management” recommends trees should be inspected every five years.
  5. A Tree Preservation Order (TPO) makes it an offence to cut down, top, lop, uproot or willfully damage a tree without the Local Planning Authority’s (LPA’s) permission.

What happened

  1. The Council owns a tree on a road outside Mr X’s property which overhangs the drive where Mr X parks his car. The Council uses a contractor to monitor and maintain its trees, including the one outside Mr X’s home.
  2. Mr X contacted the Council about the tree regularly, starting in 2006.
  3. In 2017 and 2018, the tree was inspected and found to be safe. As such, the Council decided not to do any maintenance on it.
  4. Mr X continued to contact the Council about the tree. Mr X says the Council’s contractor verbally told him he could not cut the tree as it had a TPO.
  5. Mr X later confirmed the tree did not have a TPO.
  6. In January 2020, Mr X complained to the Council. He wanted the Council to allow him to hire a qualified tree surgeon to scale the trunk of the tree and cut the branches.
  7. The Council responded to say its position remained the same. It did not find the tree to be unsafe and so would not prune it. It said Mr X had the right to cut the overhanging branches where they crossed his boundary line, but that any work to remove the branches must be carried out from within the boundaries of Mr X’s home. It would not agree to allow a surgeon to scale the tree. It said he could use a cherry picker or scaffolding.
  8. Mr X says he previously tried to use a cherry picker and was not able to reach the overhanging branches. He says scaffolding would be unsafe as his drive slopes towards the road.
  9. In its response to my enquiries, the Council said it did not agree to Mr X’s request because it would not allow anyone to work within a tree to cut branches. This was because it would not know if the contractor had suitable insurance, qualifications and authorised methods of working. It did not provide any evidence to show it had asked Mr X to supply this information.

Findings

  1. The Ombudsman cannot question a Council’s decision where it has followed the correct policy and legislation and there is no fault in the decision-making process. The Council assessed the tree according to its policies and found it to be safe. It therefore did not have to take any action to cut the tree itself.
  2. Mr X says he was incorrectly told he could not cut the tree due to it having a TPO. As this conversation was verbal, I cannot make a judgement on it. However, the tree belongs to the Council so no-one can cut it back without the Council’s permission.
  3. The Council’s response to my enquiries shows it has a blanket policy of not allowing private contractors to work within the tree. It has not considered whether the contractor Mr X wants to use has appropriate qualifications, insurance and methods of working. The failure to consider whether the work could be permitted on this occasion was fault.
  4. Mr X says the Council has not considered its duty of care to residents who are in contact with bird faeces because of its trees. Whether or not the Council has a duty of care to residents in respect to bird faeces is a legal matter and not for the Ombudsman.

Agreed action

  1. Within one month of the date of my final decision the Council will:
    • confirm it is willing to reconsider its decision not to allow Mr X to engage a qualified tree surgeon to scale the tree and remove the overhanging branches. The Council should set out the information Mr X needs to provide in a letter to him. The Council should reconsider its decision within one month of receiving the information from Mr X.

Final decision

  1. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman

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