Summary: The complainant says the Council did not follow the correct procedure when it allowed a contractor to fell a tree within a conservation area. The Ombudsman does not intend to investigate this complaint. It is unlikely that further investigation will lead to a different outcome. And we do not consider the complainant has suffered a significant personal injustice.

The complaint

1. The complainant, whom I shall call B, complains the Council did not follow the correct procedure when it allowed a contractor to fell a tree within a conservation area. They say the Council failed to adequately protect the conservation area.
2. B says the Council's failure to protect the site has had a great impact on the morale of the community.

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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 injustice is not significant enough to justify our involvement
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome

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

4. 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)

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How I considered this complaint

5. I considered the information provided by B and the Council’s responses to their complaint. I also considered the terms of the Town and Country Planning Act 1990.

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What I found

Background

6. Trees in a conservation area not protected by a Tree Preservation Order (TPO) are protected by the provisions in section 211 of the Town and Country Planning Act 1990. These provisions require people to notify the local planning authority, using a ‘section 211 notice’, six weeks before carrying out certain work on such trees, unless an exception applies. The work may go ahead before the end of the six-week period if the local planning authority gives consent. This notice period gives the authority an opportunity to consider whether to place a TPO on the tree.
7. One exception to the requirement for a section 211 notice is if the tree presents an immediate risk of serious harm and work is urgently needed to remove that risk.

What happened

8. The Council received a call from a contractor who was on site inspecting a tree, before carrying out approved work. The tree was in a conservation area which is also a designated Biodiversity Alert Site and Local Wildlife Site of district importance. The tree did not have a Tree Preservation Order on it.
9. The Council’s tree officer says the contractor said he had found a structural fault in the tree which mean that one of the three main stems was liable to fail. The contractor suggested felling the tree because removing the damaged stem left the remaining two liable to fail.
10. The tree officer says he asked the contractor to send photographs which he did. The officer’s professional opinion was a stem was:

“at risk of failure and that its removal or any reduction of it would have exposed the remaining crown/stems to altered wind patterns sufficiently to further put those stems at risk of failure.“

11. The tree was next to a road well used by pedestrians including parents and children attending a nearby school. Under the circumstances, the tree officer decided an exception applied to this case and a section 211 notice was not required. He agreed the contractor could fell the tree immediately on the condition a replacement tree was planted close to the original.
12. B complains the Council granted the contractor permission to fell the tree immediately, avoiding the need for a s211 notice, and denying interested parties from objecting to the work. They say this also allowed the removal of the requirement on the developer removing the tree to take measures to protect it from damage while building a nearby property.
13. It is not the role of the Ombudsman to replace the opinion of a professional officer with his own. I understand B may disagree with the officer’s opinion of the tree posing an immediate danger. However, the Council says the officer discussed the matter with the contractor on site. He sought and obtained photographs, which in his professional opinion showed part of the tree was at risk of immediate failure. He concurred with the contractor that to remove this part would render the remaining tree liable to fall.
14. The Government’s guidance on exceptions from the requirement for a section 211 notice says when deciding whether work to a tree or branch is urgently necessary due to a safety risk, there must be a present such a risk. This does not have to be limited to risk caused by disease or damage to the tree. It is sufficient to find that because of the state of a tree, its size, its position, and the effect as any of those factors have, the tree presents an immediate risk of serious harm that must be dealt with urgently. One consideration would be to look at what is likely to happen, such as an injury to a passing pedestrian.
15. From the information I have seen the officer considered the condition of the tree and guidance, before agreeing that immediate action was appropriate.
16. B says the Council’s failure to follow the correct procedure has an adverse impact on the local community.
17. The Ombudsman considers complaints about a council’s action of lack of action which has led directly to the complainant suffering personal injustice. We will only normally investigate a complaint where the injustice is in the form of serious loss, harm, or distress. We will not normally investigate a complaint where the complainant is using their enquiry as a way of raising a wider community campaign.
18. I acknowledge B’s concerns. However, I do not consider they have suffered a significant personal injustice because of the Council's decision, which was to allow a contractor to fell a tree which was considered dangerous, without serving notices required under the Town and Country Planning Act 1990.
19. Furthermore, the tree has been felled and a replacement secured. I do not consider that any further investigation of this complaint would lead to a different outcome.

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Final decision

20. I will not investigate this complaint. It is unlikely that further investigation would lead to a different outcome. And I do not consider B has suffered a significant personal injustice which warrants our involvement.

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Investigator's decision on behalf of the Ombudsman