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Harlow District Council (20 006 906)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 11 May 2021

The Ombudsman's final decision:

Summary: Mr D complains about delay and a lack of clarity regarding works to trees near his home. The Ombudsman has found evidence of fault by the Council and intends to uphold the complaint and complete the investigation because the Council agrees to pay Mr D redress.

The complaint

  1. The complainant (whom I refer to as Mr D) say the Council has failed to address issues with trees near his home for 10 years. He complains the Council delayed carrying out work to the trees and has failed to pollard them in 2020.
  2. Mr D also refers to a second set of trees at the entrance of the road to his home.

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What I have investigated

  1. I have looked at what happened from January 2020 onwards in respect of the trees near Mr D’s home.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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, 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

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

  1. 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. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  3. 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 have considered the information provided by Mr D. I asked the Council questions and examined its response and supporting evidence.
  2. I shared my draft decision with both parties.

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What I found

What happened

  1. On 13 February 2020 Mr D submitted a formal complaint to the Council and said trees near his home required work and he had requested this previously. On 27 February, the Service Area Manager replied. They said the Council had “previously decided” to pollard the trees. After discussion it had now decided to remove three of the trees because they had weaknesses. This was not an immediate safety risk and would be completed by the end of May. The next day Mr D contacted the Council to escalate his complaint to stage two of the process. He did not want trees removed, just pollarded. The Council responded on 13 March. Because the monthly meeting had been delayed it was not clear what final decision would be made on the trees, but the Council would update him. On 25 March Mr D requested a stage three complaint review and reiterated no work had been done to the trees. Also, at the end of March Covid-19 restrictions came into effect across England.
  2. On 30 April, the Council’s Service Company’s (Tree Team) Service Manager sought internal advice about the extent of work needed for the trees. On 5 May the Senior Landscape Manager said he had attended the site that day. A formal inspection of the trees was needed. He said the trees should not be pollarded or removed unless there were safety issues. On 22 May the Service Manager visited the site; I understand he spoke to Mr D. No contemporaneous note was made so I cannot verify what was said. On 28 May the Landscape Manager repeated to colleagues the importance of retaining mature trees at the site.
  3. In August, the Council had an independent company survey the trees and produce a report. On 2 September, the Council received the report which found that pollarding was not required. There was non-urgent dead wooding needed on some of the trees. At the end of September, the Council sent its stage three complaints response to Mr D. It apologised for the time taken to respond. The Council said since March one tree had been felled because it had been vandalised. It now had an independent report recommending the removal of dead wood and this was on the Tree Team’s task list. The Council correctly set out its policy to Mr D. It apologised for the “long time” taken to settle on a position and inform him of it.
  4. In November Mr D told the Council he was not happy with its decision and would go to the Ombudsman. I understand the dead wooding works were completed in December.

What should have happened

  1. The Council maintains trees on its land. It will only carry out works to address an assessed risk of personal injury or damage to property. It will not pollard or remove trees for amenity reasons.
  2. A resident can log a service request with the Council for tree works. This is passed to the Tree Team. An Officer will assess the request to see if works are needed, usually by a site visit, and then update the Council. The decision options are:
    • Emergency works needed because a tree poses immediate risk to safety (works complete within five working days)
    • Non urgent works required because no immediate safety risk (complete within 80 working days)
    • No works needed because either no risk or an amenity issue.
  3. The Council holds monthly meetings with the Tree Team to discuss operational matters and specific cases.
  4. When Covid-19 restrictions came into effect March 2020 the Tree Team had to suspend all non-emergency work. The Service gradually returned to full activities from May onwards.

Was there fault by the Council

  1. I have found evidence of fault by the Council. It failed to document its assessments or its decision making from February 2020 to the end of April, together with an absence of site visit notes from May. When an assessment is needed, at a minimum, the Ombudsman would expect some record of the visit together with a note about what decision was reached and how this met Council policy. That did not happen in this case when the Council reconsidered matters in response to Mr D’s stage one and two complaints.
  2. The Council accepts that it failed to explain at the outset its policy to Mr D. Had it done so Mr D would have understood that a request to pollard trees would not be granted unless the Council found the trees were causing a risk. Instead, an Officer misinformed Mr D.
  3. The Council could and should have kept Mr D better updated about how his case was being considered. He had limited contact from the Council after submitting his stage three complaint and there are no contemporaneous records of that contact. Whilst there would inevitably be issues arising from Covid-19 lockdown and restrictions I see no reason why the Council could not have clearly set out what was happening for Mr D and ensured this was documented. Mr D had to wait until the end of September for a correct explanation of the Council’s tree policy.
  4. I appreciate Mr D disagrees with the Council’s decision to not pollard the trees. I cannot see any evidence of fault in this matter. Mr D maintains the trees do pose a risk, but the Council had an independent survey of the trees and acted on its recommendations which was an appropriate course of action. The Ombudsman will not query the merits of such decision making in the absence of fault.

Did the fault cause an injustice

  1. The poor communications by the Council meant Mr D had to pursue his complaint in 2020 and was caused some unnecessary time and trouble.

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Agreed action

  1. I welcome the Council’s apology. In addition, the Council has now agreed to my recommendations and will:
    • Pay Mr D £100 for time and trouble pursuing his case;
    • Require Officers to make contemporaneous notes of tree assessments and document their decision making.
  2. These actions should be done within four weeks of the investigation being completed.

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Final decision

  1. I have upheld the complaint and completed the investigation.

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Parts of the complaint that I did not investigate

  1. The Ombudsman expects a complaint to be made within 12 months of the problem arising. There is no basis for us to look at a 10-year period in this case.
  2. I have advised Mr D that I am not investigating the issues around trees at the entrance to his road. That is because there is a limited injustice, and the Council has already carried out works. Investigation by the Ombudsman would not achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman

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