Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has been at fault in dealing with his applications to fell a protected tree, has made false allegations against him, and has failed to investigate the felling of other protected trees. This is because the complaint concerns matters which have been, or can be, the subject of appeals to the Secretary of State, have not caused Mr B significant injustice, or where the Ombudsman can achieve nothing significant by investigation.

The complaint

1. The complainant, who I will refer to as Mr B, complains that the Council has been at fault in dealing with his applications to fell a protected tree, has made false allegations against him, and has failed to investigate the felling of other protected trees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, 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
• there is another body better placed to consider this complaint.

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

4. 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))
5. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

8. I have considered what Mr B has said in support of his complaint and the complaint correspondence provided by the Council. I have also spoken with Mr B and considered his response to my draft decision.

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What I found

9. Mr B has made two applications to fell a protected tree on his property. The Council has refused both. Mr B appealed to the Secretary of State against the first decision.
10. Mr B complains that the Council failed to properly consider the first application. Specifically, he alleges that the Council’s officers failed to consider supporting representations. The Ombudsman cannot investigate matters relating to the Council’s decision on the application, or how that decision was made, including how representations were considered. This is because Mr B used his right to appeal to the Secretary of State.
11. Mr B says the Council provided demonstrably false information in the course of the appeal process. This falls outside the Ombudsman’s jurisdiction, as it relates to the matters considered by the Planning Inspector. The Ombudsman cannot consider it.
12. Mr B asked the Council for access to documents relating to the felling of three protected trees in the locality. He complains about the Council’s response to his request and his subsequent complaint about the matter. He argues that the lack of information provided, and the failure to respond to his subsequent complaints, is indicative of fault on the Council’s part in how it determined the applications for the works.
13. I do not find that the felling of these trees caused Mr B a significant injustice. His enquiries were made in the context of his own issue, rather than because he was opposed to the removal of the trees. As Mr B did not suffer a significant injustice from the works the Council approved, there are insufficient grounds for the Ombudsman to investigate this aspect of his complaint.
14. If Mr B is not satisfied with the administrative aspects of the Council’s response to his requests for information, it is open to him to bring his concerns to the attention of the Information Commissioner, who is better placed than the Ombudsman to consider such matters.
15. Mr B complains that the Council made false accusations that he had parked vehicles close to the protected tree on his property, potentially causing damage to it. He contends that this has had the effect of removing his right to use his driveway.
16. The evidence shows that the Council has accepted that it had no evidence to support this claim. It has apologised. Investigation of this point would be unlikely to add anything to the Council’s response.
17. I can see no basis for the allegation that the Council has removed Mr B’s right to park on his driveway. If Mr B does not believe parking on his driveway damages the tree, it is open to him to do so. The Council would then be able to consider taking enforcement action, against which Mr B may defend himself in court. The Ombudsman will not intervene.
18. With regard to Mr B’s second application, Mr B says the Council advised him he could carry out some work without permission. He says he has done so, but has been accused in the wording of the second decision notice of carrying out unauthorised works. He regards the Council’s actions as amounting to entrapment, followed by an accusation of an offence he has not committed.
19. The Ombudsman will not investigate this matter. Mr B may appeal against the decision, and it would be reasonable for him to do so. We can take no view on whether the works Mr B has carried out are consistent with the advice the Council gave, or whether they are lawful. We cannot therefore express a view on whether the Council was at fault. If the Council takes enforcement action, Mr B can defend himself against it.

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Final decision

20. The Ombudsman will not investigate this complaint. This is because it concerns matters which have been, or can be, the subject of appeals to the Secretary of State, have not caused Mr B significant injustice, or where the Ombudsman can achieve nothing significant by investigation.

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Investigator's decision on behalf of the Ombudsman