Summary: Mr & Mrs X complain the Council altered their application for work on protected trees in their garden. They say they have permission which is not suitable for their needs. The Ombudsman will not investigate this complaint. Further investigation is unlikely to lead to a different outcome.

The complaint

1. Mr & Mrs X say the Council misinterpreted their application to carry out work on protected trees in their garden. They say the permission they have received does not suit their needs.
2. They also complain the Council failed to treat their complaint as a complaint and failed to advise them of their right to complain to the Ombudsman.

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The Ombudsman’s role and powers

3. 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:

• the fault has not caused injustice to the person who complained
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome

section 24A (6), as amended)

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How I considered this complaint

4. I considered the information provided by Mr & Mrs X and the Council. I also considered the government guidance on making applications for work on protected trees.
5. Mr & Mrs X commented on the draft version of this decision.

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What I found

6. A Tree Preservation Order (TPO) is an order to protect one or more trees. The order forbids the cutting down, topping, lopping, uprooting, wilful damage, or wilful destruction of trees without the local planning authority’s written consent. Any consent can be subject to conditions which have to be followed.
7. There are four types of TPO:
• Individual – this can apply to an individual tree.
• Group – this can apply to a group of individual trees which, together, make up a feature of amenity value which separately might not.
• Area – covers all trees in a defined area on the date the order was made.
• Woodland – covers all trees within a woodland area regardless of how old they are.
8. Someone seeking permission to carry out works to a protected tree must apply formally. The local planning authority, in this case the Council, can consider displaying a site notice and consulting residents before it decides on the application. If the Council refuses an application, the applicant can appeal to the Secretary of State through the Planning Inspector.
9. There is no charge for applications for work on trees covered by TPOs.
10. The Government has issued guidance on making application for works on protected trees. This stresses the importance of providing information on the application form that makes clear whether the proposed work is and provides enough information to support the case.
11. There is an example of a TPO work application form on the planning portal (which is the national planning application site for England). This states you must identify the species of trees and where known the numbers of those trees from the TPO schedule. It also states:

“you must make clear to which trees the descriptions of work and reasons apply – It is vital you clearly specify the works you want to carry out for each tree included in your application. A proposal simply to “cut back”, “lop” or “trim” some branches is too vague because it fails to indicate the extent of the works”

What happened

12. Mr & Mrs X have a woodland TPO covering their garden. They put in an application to work on the trees. The application is the same as a previous application for which they received planning permission in 2014. The application form states:

“the proposed work is that for which consent was granted 25 July 2014 and which expired 25 July 2019, generally minor work to a variety of trees/shrubs within or bordering property. This could potentially be to any of the trees primarily to enhance appearance and assist growth of neighbouring trees. This would be less than 1% of total tree mass. Trees/shrubs include laurel/ash/beech/sycamore but may include reducing tops/overhanging branches that overshadow other trees.”

13. The case officer visited the site, viewing it from outside Mr & Mrs X’s boundary. It granted permission based on the 2014 permission which says:

“Trees within garden area; shorten back or remove small diameter growth (less than 10cm diameter), back to growth points, where overhanging or conflicting with growth of adjacent trees.”

It also says:

“This consent does not cover works to the mature woodland trees. Any proposed works to these would need to be submitted within a new separate TPO application.”

14. Mr & Mrs X complain the permission granted does not reflect the application. However, their application says the work required is the same as that for which they received consent in 2014. The Council’s approval is the same as that granted in 2014.
15. Following their complaint, the Council confirmed they cannot appeal the decision as it was not refused. However, they can put in a new application at no cost. It advised that an application should mark out the areas of trees to be worked on. It also asked for specification for non-mature woodland trees with details of the extent of pruning and the frequency of the work within a 5-year period. It suggested the application could be a management plan to cover the 5-year period.
16. I understand Mr & Mrs X are not happy with the permission and say the Council altered the description of the work to be carried out. However, the application they submitted in 2019 was vague. It did not follow the Government guidance. While it may have been preferable for the Council to contact Mr & Mrs X to discuss the work they require, the application stated the proposed work is that for which consent was granted in 2014. Therefore, I cannot say the Council is at fault for granting the same permission as that granted in 2014.
17. Turning to their concerns that trees on the bordering property are not being treated in the same way as those on their land. The Council has advised there is existing permission for tree work on the land. However, it will inspect the site to check the work carried out complies with the permission. If it does not, it will be for the Council to decide what action, if any is necessary. It is unlikely the Ombudsman will find fault in this proposed course of action.
18. Mr & Mrs X also complain the Council failed to advise them of their right to complain to the Ombudsman. They say the Council’s advice to them to lobby their MP for a change in the law is a “shocking misrepresentation”.
19. Mr & Mrs X told the Council that to submit applications for individual mature trees would require “weekly applications”. They asked where to address their complaint to receive an impartial view. The planning officer advised that he had confirmed he had provided the legal position; that Mr & Mrs X cannot appeal against a granted planning permission and they should petition their MP for a change in the law.
20. As the Ombudsman cannot overturn a planning decision, nor can the Planning Inspector consider an appeal against a granted planning permission, the Council is correct in advising them to contact their MP. However, the Ombudsman expects Councils to refer to complainants right to approach the Ombudsman if they are dissatisfied with the outcome of a complaint.
21. While we expect Councils to follow their published complaints procedure, and advise complainants of the Ombudsman’s role, we will not usually look at the way a complaint has been considered in isolation.
22. I see no good reason to investigate this part of the complaint because Mr & Mrs X have complained to the Ombudsman, albeit having discovered his existence through their own research. Therefore, I do not consider the Council’s failure to advise them of the Ombudsman’s role in complaint investigations has caused them any significant personal injustice.

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Final decision

23. I will not investigate this complaint:
• it is unlikely we could add to the Council’s investigation
• further investigation is unlikely to lead to a different outcome; and
• I do not consider that Mr & Mrs X suffered significant personal injustice because the Council’s failure to refer them to the Ombudsman

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Investigator's decision on behalf of the Ombudsman