The Ombudsman's final decision:
Summary: Mr X complained about the Council’s inadequate investigation and unreasonable decision not to take enforcement action against works affecting a protected tree. We found no fault in how the Council reached its decision.
- Mr X said the Council failed to properly investigate his report of works within a tree root zone that breached a tree preservation order. The environmental and amenity benefits of trees are important to Mr X as a local resident. Mr X wanted the Council to properly investigate the breach and enforce the laws that protect trees.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
How I considered this complaint
- I have:
- considered Mr X’s written complaint and supporting papers;
- talked to Mr X about the complaint;
- asked for and considered the Council’s comments and supporting papers about the complaint
- shared as appropriate the Council’s response to the complaint with Mr X; and
- shared a draft of this statement with Mr X and the Council and considered the further comments and responses I received.
What I found
- A Tree Preservation Order (TPO) is an order made by councils to protect specified trees, groups of trees or woodlands in the interests of amenity. Generally, it is a criminal offence to wilfully damage or destroy or carry out works to a TPO tree without the council’s written consent. The Government’s National Planning Practice Guidance (PPG) says:
“In the Secretary of State’s view, cutting roots is also a prohibited activity and requires the [council’s] consent."
People can appeal to the Secretary of State if a council either refuses consent for works to TPO trees or gives a conditional consent.
- The Government’s National Planning Policy Framework (NPPF) says effective enforcement is important to keep public confidence in the planning system. Planning enforcement action is discretionary and the NPPF says councils should act proportionately in responding to possible breaches of planning control.
- The Council has a 2017 Local Enforcement Plan (‘the Plan’) that reflects the NPPF guidance and sets out how it will rank and investigate cases. The focus of the Plan is enforcement of breaches of planning control. However, it also covers, for example, cases where people report felling and pruning of protected trees, which includes TPO trees.
- The Plan ranks reported breaches as ‘emergency’, ‘high priority’ and ‘lower priority’. The unauthorised felling/pruning of protected trees is given as an example of an emergency case. The Plan’s timetable for responding to an emergency case is that an officer:
- immediately registers the report and carries out a background/history check;
- makes a site visit as soon as possible and within 24 working hours;
- contacts the complainant and starts negotiations as soon as possible and within 24 working hours; and
- starts legal action or resolves as soon as possible in cases of irreversible harm.
- In considering how to act, councils will have choices ranging from ‘do nothing’ to court action. The PPG says negotiation may help councils secure remedial work to repair or reduce the impact of unauthorised work. And, while prosecutions cannot achieve remedial work, they may, where appropriate punish offenders and deter potential offenders.
- The Council owns land (‘the Site’), which it leases to a third party (‘the Lessee’). A TPO protects trees on the Site. Under the lease, the Council remains responsible for the trees on the Site. So, the Lessee needs the Council’s consent to work affecting protected trees on the Site as both landlord and as the local planning authority (LPA) responsible for enforcing TPOs. The Council says, before it gives its landlord’s consent, its tree officer must first approve the Lessee’s method statement. The method statement explains both the works and protection for the trees.
- The Lessee wanted to provide services to a building on the Site. To link the building to existing services involved digging a trench across the Site to hold cabling. The Lessee sought help from the Council to carry out the works. Neither the Lessee nor the relevant Council service team sought consent for the work from the Council as landlord or as LPA.
- Work started on the Site and Mr X contacted the Council’s tree officer about possible damage to a TPO tree. The tree officer contacted the Lessee and asked it to stop work on the Site until a site visit.
- The next day, a Council officer visited the Site and met with the Lessee’s representative. A trench near a TPO tree had been backfilled. The Council says its officer give verbal, retrospective approval for the works. The officer also gave the Lessee information about ‘consent’ and asked the Lessee to, retrospectively, complete the landlord’s consent form.
- The Council also wrote to the Lessee. The Council said, as the trench had been filled, it was not clear if the works had severed significant roots of a nearby TPO tree. It had therefore decided not to pursue a formal enforcement case. The Council said trenching, if carried out incorrectly, could be highly damaging to tree roots. The Council reminded the Lessee the Site included many TPO trees and that it was a criminal offence to damage or destroy such trees. The Council stressed the Lessee had to follow correct procedures and should get tree advice for works close to TPO trees.
- Mr X then sent the Council information about the works, including photographs of the works while they were in progress. The Council found that trenching had taken place within the root protection area (RPA) of a TPO tree, which would cause compaction and root severance. While this might not immediately kill the tree, it could weaken it and lead to its early loss. The Council wrote to the Lessee about the evidence it had received and said it had now opened an enforcement case. The Council said it preferred to resolve matters by mitigating any damage caused to the TPO tree rather than action through the courts. So, it asked the Lessee to engage a tree consultant to investigate the extent of the damage to the TPO tree and take appropriate remedial action.
- The Lessee complied. The Council assessed the further information and found damage to the TPO tree was “minor”. The Council also considered the Lessee “had gone to great lengths to remedy the damage”.
- Several months later, Mr X contacted the Council about works near the same TPO tree (‘the Works’). The Council contacted the Lessee. The Lessee said it had carried out trenching to complete the work started several months earlier. A Council tree officer then visited the Site and found tracks from a mini digger and evidence of some ground disturbance near the TPO tree. The Council opened an enforcement case and again contacted the Lessee seeking more information about the Works. The Lessee confirmed a small excavation had taken place connected to and completing the earlier work on the Site.
- The Council found the excavation to be about three metres further from the TPO tree than the original works and likely outside its RPA. The Council considered tree roots found around the disturbed ground probably came from a nearby self-seeded tree. The Council also took account of the findings from the tree consultants’ earlier investigation. It considered there was a “low likelihood” of root damage to the TPO tree from further works on the outside edge of its RPA. The Council did not consider remedial work or enforcement action was necessary. The Council reminded the Lessee of the protection given to TPO trees and the need to get pre work consents from it as landlord and LPA.
- The Council contacted Mr X saying the limited duration and extent of the Works meant long term damage to protected trees was unlikely. The Council said it had not found further action expedient and had closed its enforcement case.
- Mr X complained to the Council saying its decision to take no action was irrational and unreasonable. Mr X pointed to the “almost identical incident” that took place several months earlier. Mr X said on that occasion the Council had sought remedial work. Mr X said a criminal offence had taken place on both occasions as the Lessee did not have the necessary written consents. Mr X also said the Council had failed to carry out its statutory duties and responsibilities to protect TPO trees and the natural environment.
- In reply, the Council said the Works completed those started the previous year. The Works were “significantly more minor and more distanced from” the TPO tree than those carried out earlier. The Works were unlikely to cause harm and so there was no justification for further action.
- Dissatisfied, Mr X asked the Council to further consider his complaint. Mr X said the Council had no details of the Works and just relied on the Lessee saying they did not affect the RPA of TPO trees. The Council repeated that it had assessed matters and was satisfied the Works were unlikely to cause long term damage to TPO trees. Mr X then came to the Ombudsman wanting the Council both to carry out a proper investigation and enforce the laws about TPO trees.
- In responding to the Ombudsman, the Council suggested its handling of the Lessee’s works on the Site had been successful. The Council pointed to the costs to the Lessee of the investigation and remedial work after the original trenching on the Site. The Council also said the Lessee had since applied for consent to carry out further work near TPO trees on the Site. So, while it had not taken enforcement/court action against the Works, it was satisfied the Lessee now understood the importance of TPO trees and the need to get consent for works.
- For most people, the place where they live, and their surroundings, are important. I therefore recognised the strength of Mr X’s concerns about his local environment, including its green spaces. My role was to consider whether the Council acted with fault in effectively deciding to take no enforcement action in response to the Works. That the Council might have done more and or acted differently does not necessarily mean what it did fell below acceptable administrative standards.
- I have referred to the work Mr X first reported to the Council (see paragraphs 11 to 16) as he raised it in complaining to the Council about its response to the Works. However, Mr X’s complaint concerned the Council’s decision not to take enforcement action in response to the Works. But, for clarity, I agreed the original activity and the Works were ‘similar’. That is, they both involved trenching near TPO trees linked to the Lessee’s proposal to provide services on the Site.
- On receiving Mr X’s report about the Works, the Council contacted the Lessee and opened an enforcement case. These are steps I would expect a council to take on receiving specific information about possible damage to a TPO tree. The steps were also in line with the Plan. As well as accepting, and acting on, Mr X’s information, a Council tree officer visited the Site. This was a reasonable and suitable step for the Council to take. The Council also gave the Lessee the opportunity to explain its position. The Council also considered the information it held about the Lessee’s tree consultant’s investigation and earlier remedial work. Overall, I found the steps taken by the Council to investigate the Works were proportionate, appropriate and reasonable.
- With Mr X’s information, the steps summarised in paragraph 26 led to the Council holding a plan that showed the extent of the Works trench. The visit by the Council’s tree officer also meant it had viewed the Site and seen the ground disturbance. I was satisfied the Council had adequate and suitable information on which it could reach a properly informed view about the impact of the Works.
- The Council found the Works trench was about three metres further from the TPO tree and beyond its RPA as marked on the plan. The Council also considered the tree roots it found were more likely those of a self-seeded tree positioned close to the Works trench. And that works within the RPA of the TPO tree were highly unlikely to have caused damage. The Council therefore found the Works, while ‘similar’ to the original activity, were of smaller scale and had less impact on the TPO tree. That was a view the Council was entitled to reach based on the information it held and consideration by its professional officers. I recognised Mr X might strongly disagree with the Council’s view. However, I was satisfied the Council’s actions did not fall below acceptable administrative standards. As I found no fault by the Council, I had no grounds to question its view (see paragraph 2).
- I completed my investigation finding no fault by the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman