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Royal Borough of Windsor and Maidenhead Council (20 000 939)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 09 Apr 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council mistakenly cut back a tree he owns which was on his private land. The Council accepted it was wrong to cut Mr X’s tree and it agreed to offer him a remedy.

The complaint

  1. Mr X complained the Council mistakenly cut back a tree he owns which was on his private land. He was put to expense in proving ownership of the tree and in removing a section of the tree which died after the Council cut it.

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What I have investigated

  1. I have investigated events which occurred since the Council cut back Mr X’s tree in April 2019. I have not investigated earlier events when the Council first cut back Mr X’s tree in 2009.

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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. 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)
  3. 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)

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
    • The Highways Act 1980.
  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

  1. The Council has a duty under the Highways Act 1980 to maintain the highway and to ensure, as far as reasonably practicable, safe passage along it. Where a tree overhangs the highway in a way which endangers or obstructs the passage of vehicles or pedestrians, the Council may require the tree to be cut back to remove the danger or obstruction.
  2. Mr X owns a tree which is located just beyond his boundary wall, and close to a public road.
  3. The Council first cut back Mr X’s tree in 2009. He complained, but the Council said the tree was on the public highway, not Mr X’s land, and did not belong to him.

What happened

  1. Mr X emailed the Council on 12 April 2019. He said the Council had cut back the tree on his land again and he would pursue the Council for damages.
  2. The Council replied on 15 April. It said the tree it cut back is growing on the adopted highway, as it confirmed in May 2009. It said the Council is responsible for maintaining trees on the public highway. It attached a plan showing the tree it had cut and asked Mr X to confirm this was the tree he was referring to. The plan the Council attached pointed to a tree beyond Mr X’s boundary wall.
  3. Mr X emailed the Council again on 24 April. He said he wanted to complain about maladministration by the Council. He said the Council’s plans are inaccurate and do not show the correct line of land ownership. He provided a plan of the land which he said clearly showed the tree the Council cut is on his land and not on land adopted by the Council.
  4. Mr X told the Council that when the plans were produced and approved they showed a boundary wall on the northern line of his property. Beyond the wall was the Council’s adopted land. However, due to underground services, the developer moved the wall about 1 metre to the south. He said moving the wall does not alter the boundary of his land, and he owns a thin section of land beyond the boundary wall. This thin section of land includes trees, one of which the Council has cut twice without his permission. He asked the Council to amend its plans.
  5. The Council contacted Mr X on 8 May to say it needed longer to investigate his complaint and would respond by 15 May.
  6. Mr X contacted the Council again on 15 May. He asked what fines the Council imposed on landowners who cut back trees which have a TPO without approval.
  7. The Council said it did not impose fines, but a court may if there was a successful prosecution. It referred Mr X to government guidance about TPOs.
  8. The Council sent its stage one complaint response on 24 May. It said it carried out work to cut back Mr X’s tree based on ordnance survey (OS) maps. It said it had also obtained a copy of the title plans from Land Registry. The plans and OS maps show Mr X’s ownership extends only to the edge of the land in dispute and not to the line of trees. It said the land did not appear to be in Mr X’s ownership, but it would review the position if Mr X could provide any official documentation to the contrary.
  9. Mr X responded to the Council on 26 May. He was aghast at its decision and would not accept it. He said the line on the Council’s plans showed his boundary extended beyond the boundary wall and includes the tree he was referring to. He said the highways department had mistakenly claimed this land, but it is owned by Mr X and his neighbour. He asked the Council to reconsider its decision and offered to meet someone from the Council.
  10. Mr X met with the Council’s head of commissioning on 3 June. They agreed a way forward to resolve Mr X’s complaint.
  11. Mr X emailed the Council on 29 June for an update following his site meeting on 3 June. He said the Council’s head of commissioning recognised the tree was on Mr X’s property and the Council’s complaint response was therefore wrong and would be changed.
  12. The Council sent its stage two complaint response on 2 July. It accepted the disputed section of land is not part of the public highway and it had amended its records. In addition, The Council said the highway licensing team had visited the site with a view to installing marker posts to show Mr X’s boundary. It said the licensing team would contact Mr X to formalise arrangements going forward.
  13. Mr X brought his complaint to the Ombudsman on 3 July. He said he had to pay a contractor £400 to remove dead ivy in 2009 after the Council first cut his tree. The Council made him go to great lengths to prove his ownership of the tree after it cut it back again in April 2019. The Council finally accepted the tree belongs to Mr X but have not yet marked the edge of the highway as promised. Mr X also said the Council refuse to compensate him for the tree surgery works, or the costs he incurred proving ownership of the tree.

Response to my enquiries

  1. The Council told me it believed Mr X’s tree was on the public highway. It cut it back to remove ivy.
  2. The Council said it considered it reached an amicable agreement with Mr X about the way forward following the site meeting. It agreed put down marker posts to show Mr X’s boundary. The Council’s licensing team contacted Mr X several times about this, but Mr X did not reply.
  3. The Council inspected the disputed area of land again in December 2019 and confirmed the tree Mr X complained about is on private land. It remeasured the land and confirmed it to be private.
  4. As the Council has had no response from Mr X, it longer plans to put down marker posts. Instead, it amended its plans for the adopted highway to fit Mr X’s land and updated staff about this.

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Analysis

  1. After fully looking into Mr X’s complaint, the Council agreed Mr X’s land does go beyond his boundary wall, and the tree it cut back is on Mr X’s land.
  2. I can understand why the Council initially considered the tree was on the public highway, due to the position of Mr X’s boundary wall. The Council relied on plans from OS and the Land Registry. However, those plans were not the same as the plans Mr X gave the Council. On the evidence at that time, I do not consider there was a definite position.
  3. Once Mr X alerted the Council to the potential error, the Council could have done more to confirm the position. It did not visit the site to assess the situation until Mr X’s stage two complaint in 2019. The Council could have resolved matters sooner.
  4. The Council accepted it was wrong to cut Mr X’s tree, and that it is not on the public highway. It has amended the plans it uses when carrying out highway maintenance works and told staff about the issue. This should stop Mr X’s tree being cut again.
  5. Mr X said he was put to expense proving his ownership of the tree. I consider it was reasonable for the Council to ask for proof of ownership. I will therefore not recommend the Council makes any payment for this.
  6. Because of the Council’s error, Mr X said he will have to pay to remove dead ivy from his tree. It was distressing and frustrating for Mr X to have his tree cut for a second time, having already tried to prove ownership the first time it happened. He then had to go through the complaints process for a solution. The Council has now offered to inspect Mr X’s tree and arrange a quote from one of its contractors to carry out any works which are needed. I consider this is a suitable remedy.

Agreed action

  1. Within four weeks of my final decision the Council agreed to inspect the damage caused to Mr X’s tree, get a quote from a contractor, and arrange the required work.

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Final decision

  1. I have completed my investigation. The Council accepted it was wrong to cut Mr X’s tree and agreed to offer him a remedy.

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Parts of the complaint that I did not investigate

  1. I did not investigate events which took place in 2009 when the Council first cut Mr X’s tree. This aspect of Mr X’s complaint is late and should have been raised sooner.

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Investigator's decision on behalf of the Ombudsman

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