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Horsham District Council (20 006 285)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 29 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to transfer a tree preservation order from a felled oak tree to a replacement sapling near his home. The Council was not at fault. The replacement sapling was planted under a condition of the Tree Preservation decision notice, which gave permission to fell the oak tree. The Council decided not to award the replacement sapling with a tree preservation order. There was no fault in that decision.

The complaint

  1. Mr X complained the Council failed to transfer a tree preservation order (TPO) from a felled oak tree to a replacement sapling planted on a green area within a residential housing estate. Mr X said the Council should protect the new sapling in the interest of amenity to protect it from and deter potential developers from building on the green area.

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The Ombudsman’s role and powers

  1. 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)
  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)

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How I considered this complaint

  1. I spoke to Mr X about his complaint.
  2. I considered correspondence between Mr X and the Council.
  3. I considered relevant law and government guidance on Tree Preservation Orders.
  4. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Tree Preservation Orders

  1. A Tree Preservation Order (TPO) is an order made by a local planning authority to protect specific trees in the interests of amenity.
  2. A TPO forbids the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees without the local planning authority’s consent. If the Council gives consent, it can be subject to conditions which must be followed. Responsibility for maintaining the tree lies with the owner.
  3. The power to make TPOs is given to councils by the Town and Country Planning Act (TCPA) 1990.

Conditions requiring tree replacement

  1. Section 206 of TCPA refers to the replacement of trees protected by a TPO. It states if a protected tree is removed, uprooted or destroyed in contravention of the order, the landowner must plant another tree of an appropriate size and species at the same place. It says the relevant TPO shall apply to any tree planted in accordance with section 206 as it applied to the original tree.
  2. Government guidance on TPOs states that if a council grants consent to fell a tree and wants a replacement tree to be planted, then it must make this a condition of its decision. The guidance states that replacement trees planted under a condition, rather than an obligation under section 206 of the TCPA, are not automatically protected by the original TPO.

What happened

  1. Mr X is part of a resident’s association. In the area was a large ancient oak tree. The oak tree was protected by a TPO.
  2. The County Council highways department applied to the Council to carry out works on the oak tree because of extensive decay. The application stated the oak tree was no longer safe to retain and there was evidence that the decay could make the tree unstable. The application said a replacement oak tree would be planted in its place.
  3. The Council gave its permission to fell the oak tree. The Council included a condition that the replacement tree must be planted within six months of the decision notice. The condition said that if the replacement tree died following planting then it should be replacement with a similar tree in a similar position within six months of its death.
  4. The County Council felled the oak tree and planted an oak sapling as a replacement.
  5. Mr X had asked the Council to place a TPO on the replacement oak sapling. The Council wrote to Mr X refusing his request.
  6. Mr X wrote to the Council, unhappy with its decision not to award the replacement tree with a TPO. The Council responded to Mr X and explained the replacement tree is protected by the condition which was attached to decision which had allowed the tree to be felled. The Council explained the condition does not expire and will remain in force forever, or until another planning decision supersedes it. The Council explained to Mr X that law and guidance gives it discretion to exercise its judgement to decide whether to make a TPO. The Council said it had considered the perceived threat on the tree and its amenity value to the public. It had decided the tree was not a specimen of particular or special merit and therefore did not currently provide a high level of amenity value to the area. The Council said it would not overturn its decision.
  7. Mr X complained to the Council about the matter. The Council repeated its earlier response, that the replacement oak sapling was protected by the planning condition attached to the permission to allow felling of the original oak tree. Again, it said there was no threat to the replacement tree and therefore no legitimate legal basis to impose a TPO.
  8. Mr X was unhappy with the Council’s response. He argued that section 206(4) of the TCPA stated that the TPO should apply to replacement trees as it applied to the original tree. Mr X asked the Council to consider the TCPA and reconsider its decision not to award the replacement tree a TPO.
  9. The Council issued Mr X its final response which reiterated its earlier responses.
  10. Mr X remained unhappy and complained to us.

My findings

  1. Mr X’s complaint is that the Council should have transferred the TPO from the felled oak tree to the replacement sapling in line with section 206 of the TCPA.
  2. Section 206 of the TCPA places a duty on the owner of the land to plant a replacement tree if a tree which is subject to a TPO is removed, uprooted or destroyed in contravention of the TPO. However, the oak tree in this case was felled with permission from the Council. Therefore, it was not removed, uprooted or destroyed in contravention of the TPO. As this was the case, section 206 does not apply and there was no obligation to transfer the TPO to the replacement tree.
  3. This position is reinforced by government guidance on TPOs. The guidance states replacement trees planted under a condition, as in this case, rather than an obligation under the TCPA, are not automatically protected by the original TPO. There was no fault in the Council’s decision not to transfer the TPO from the felled oak to the replacement tree.
  4. The records show that before it made its decision, the Council considered whether to protect the replacement tree with a TPO. It considered the relevant law and guidance, whether the replacement tree was under threat and whether it necessary in the interest of amenity. Having done so, it decided the replacement tree did not provide a high level of amenity value and therefore it decided not to award it with a TPO. The Council followed the decision-making process we would expect, so I find no evidence of fault.

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Final decision

  1. I have completed my investigation because the Council was not at fault.

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Investigator's decision on behalf of the Ombudsman

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