Summary: Ms L complains about the way the Council placed a Tree Preservation Order on her tree and displayed her personal data on a site notice outside her home. The Ombudsman will not investigate this complaint. We are unlikely to find fault in the way the Council created the Tree Preservation Order or planning application. And it is reasonable to expect Ms L to complain about her data protection concerns to the Information Commissioner’s Office.

The complaint

1. Ms L complains the Council:
• Placed a Tree Preservation Order (TPO) on her tree without informing her
• Corresponded directly with her arboriculturist on her tree work application
• Displayed a site notice containing her personal data outside her home; and
• Incorrectly referred to the Data Protection Act instead of the more recent General Data Protection Regulations (GDPR)

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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
• there is another body better placed to consider this complaint

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

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How I considered this complaint

3. I considered the information provided by Ms L and discussed her concerns with her. She commented on the draft version of this decision.

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What I found

4. Ms L decided a tree on her property needed work. She sought information from the Council which it did not provide.

Ms L says she engaged an arboriculturist to reduce the crown of the tree. He advised her the tree was not subject to a TPO.

5. Shortly before the work took place a Provisional TPO arrived in the post. The Council did not consult Ms L before doing this.
6. As she had already engaged the arboriculturist to do the tree work, Ms L asked them to apply for the now required planning permission.
7. The Council corresponded directly with the arboriculturist, granting permission for the crown reduction. As part of the planning process required for work on a TPO tree, the Council displayed a site notice outside Ms L’s home. This included her title, name, and address.
8. Ms L complained to the Council that it:
• Had not consulted her about the provisional TPO
• Had corresponded directly with her agent without copying her in
• Had breached the GDPR by including her name and title on the site notice; and
• Had incorrectly referred to the Data Protection Act 1998 instead of GDPR 2018
9. The Council explained to Ms L her enquiries had led it to inspect the tree. It found other trees in the road were subject to TPOs but the one on her property had been missed. It therefore decided to serve notices on her and her neighbour (part of the tree overhangs her neighbour’s property) to protect the tree.
10. It also told Ms L that when an agent is used to apply for planning permission or tree work, the agent becomes the primary point of contact.
11. Finally, it confirmed that it had sought advice from its information governance staff who confirmed there is no breach of GDPR when including a name and title in a planning site notice. And it apologised for referring to Data Protection 1998 instead of the GDPR 2018.

Assessment

12. The Council is not required to consult anyone before serving a provisional TPO. The consultation period runs after the notice is issued and Ms L could have objected if she wanted to do so.
13. When an applicant uses an agent to apply for planning permission or tree work on their behalf, it is expected the Council will correspond with the agent on all matters relating to the application.
14. It is unlikely the Ombudsman will find fault in the actions taken by the Council detailed in paragraphs 12 and 13 above.
15. Turning to Ms L’s concerns about data protection. The Information Commissioner’s Office (ICO) is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes wrongly publishing information or withholding information someone is entitled to.
16. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. Ms L should therefore approach the ICO about her concerns. It can decide if the Council has acted appropriately as a data controller.

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Final decision

17. I will not investigate this complaint. This is because we unlikely to find fault in the way the Council issued the provisional TPO or corresponded with the arboriculturist. And it is reasonable to expect Ms L to report concerns about data protection to the ICO.

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Investigator's decision on behalf of the Ombudsman