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Erewash Borough Council (20 008 791)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 09 Jul 2021

The Ombudsman's final decision:

Summary: Mr and Mrs X complained about the way the Council dealt with unauthorised works they reported to protected trees. There was no fault in the way the Council responded to their reports. However, there was fault in the way a Tree Preservation Order (TPO) was originally made. The Council remedied the complaint appropriately by apologising to Mr and Mrs X for the impact this had in the local area.

The complaint

  1. Mr and Mrs X complain the Council:
    • Failed to properly investigate unauthorised works to three trees within a row which were protected by a Tree Preservation Order (TPO). Also, that the Council failed to review and amend the relevant TPO following their complaint, when issues with the number of trees it protected became clear.
    • Should not have allowed the removal of two other trees in the row without a planning consent. They contend the trees were not an immediate risk and a formal application for the works should have been made.
    • Failed to properly consider damage to another tree (an Elm) in woodland protected by a separate TPO.
    • Failed to properly consider a formal planning application for works which included reducing the height of the row of trees. They say the case officer’s report was flawed and inaccurate and the Council was biased towards the applicant.

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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 and considered the complaint and information he provided. I asked the Council for information and considered its response to the complaint.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

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What I found

Tree Preservation Orders (TPOs)

  1. Anyone wanting to cut down, top, lop or uproot trees subject to a TPO must first apply to the local planning authority for its consent unless the proposed work is subject to an exception. Where an exception applies the authority’s consent to carry out works is not needed, but the owner or contractor should generally give the authority five day’s notice of works that are intended. The exceptions include trees that are dead, or where “works are urgently necessary to remove an immediate risk of serious harm”.

The Town and Country Planning Act 1990

  1. Section 210 of the Act states that it is an offence to act in contravention of a TPO by “cutting down, uprooting or destroying” a tree. It is also an offence to “damage, top, or lop a tree in such a manner as to be likely to destroy it”. Acting in contravention of a TPO otherwise than specifically set out above is also an offence.

What happened

  1. In early 2019, a developer carried out extensive tree felling at a large site which is near to Mr and Mrs X’s home. Some of the trees on the site are protected by a TPO.
  2. Mr and Mrs X complained to the Council about the works.
  3. A TPO on the site protected a line of 23 trees within the area shown on a plan and a separate TPO protected trees in woodland.
  4. The Council told us an officer visited the site on the next working day following the works and investigated. He concluded that no protected trees had been felled.
  5. In October 2019 Mr and Mrs X obtained the documents setting out the TPO for the line of trees on the site. They stated the line of trees had extended further than they did now. They made a formal complaint that three of the trees protected by the TPO had been felled by the developer earlier in the year.
  6. An officer visited the site again following the complaint and confirmed that there was still a row of 23 trees in the area shown on the TPO plan. As such, no breach of the TPO had occurred. The Council stated its position remained unchanged from earlier in the year.
  7. In further correspondence with Mr and Mrs X the Council accepted there had been an error when originally making the TPO for the line of trees. Its intention had been to protect the whole line of trees in the area marked on the plan. This was more than the 23 stated in the TPO. Because officers miscounted when applying the TPO, not all the trees in the line were protected and some trees had been felled. The Council acknowledged that public amenity value of those trees had been lost as a result. The Council apologised to Mr and Mrs X for the loss of the trees. However, as the 23 trees afforded protection by the TPO were still there, it had no grounds to act in respect of the trees in the line that were felled.
  8. In April 2020 the Council responded further after meeting Mr and Mrs X on site. The Council acknowledged at this point that more than 23 trees remained in the protected area but two of those trees had been damaged by a storm. The Council reiterated that because 23 trees remained, it could not take action for a breach of the TPO. Mr and Mrs X were unhappy with the Council’s response. They considered action should be taken.
  9. On 19 May the Deputy Chief Executive wrote to Mr and Mrs X at the final stage of the complaints process. He acknowledged the way the original TPO had been handled left a lot to be desired; the number of trees to be protected had not been correctly identified. He stated that given the TPO did not specify which trees in the row were protected, he would ask the Head of Planning to review the site again and take steps to amend the TPO to include those trees that were worthy of protection.
  10. The Council told us that at a site visit on 12 May 2020 officers surveyed the number of trees in the line. They found there were 24 substantive trees in a row rather than 23. They also found there were three more trees that were not considered to meet the criteria for protection. Of the 24 substantial trees, two had been damaged in a storm which the developer intended to remove. The developer would be required to replace these. The Council acknowledged the 24th tree was unprotected. However, it told us if it amended the TPO now, while the two storm damaged trees remained, these would not be included in the new TPO due to their condition. As a consequence, by amending the TPO, the Council may not achieve the replacement of the two damaged trees. For these reasons it decided against amending the TPO to protect one additional substantive tree. It is not clear whether the Council explained this rationale to Mr and Mrs X at the time of their complaint.

Felling of the Storm Damaged Trees

  1. In May the Council also responded to separate correspondence from Mrs X. Mrs X commented that the Council should not allow the two storm damaged trees to be felled. She stated the trees were in full leaf and they did not need to be removed, especially during nesting season. Mrs X also asked the Council to formally vary the TPO for the line of trees to increase the number to protect the additional trees in that area.
  2. A council officer told Mrs X he had visited the site and while the trees were in leaf, they were unstable, and it was appropriate for safety reasons to allow the site owner to remove the trees under a five day notice. He noted Mrs X’s concern regarding nesting birds, but stated that it was not illegal to carry out works to trees, provided that there was no evidence of birds nesting in them.
  3. The Council told us the storm damaged trees were assessed as dangerous by the tree consultant of a developer with an interest in the land, the Council’s Tree Officer, the Councils Head of Greenspace, and an independent tree consultant acting on behalf of the Council. All four people held a professional arboricultural qualification and concluded that the trees were dangerous.

Elm

  1. In addition to the complaint regarding the line of trees, Mr and Mrs X also complained about damage caused to an Elm in woodland. They stated there were photographs of contractors on the site and they believed they had carried out the damage. They stated it had clearly been cut with a chainsaw. The Tree Officer visited and inspected the tree. He found work to the tree had been done but it was carried out in an arboriculturally sound manner. I understand officers suggested to Mr and Mrs X that the work to the Elm could have been carried out to free a hung tree caught on it, or possibly to remove a wound from the tree. It was not clear what led to the work, as it was not witnessed.
  2. The Council later reviewed whether planning enforcement action was appropriate. The Council stated it was not known who had lopped the tree or when it happened. Even if there had been strong evidence to show who carried out the work, the Council concluded there was little impact caused by the work. This was because the tree was in woodland surrounded by other trees and it was not visible from public vantage points. For these reasons it did not consider it should pursue the matter further.
  3. Mr and Mrs X told us the tree was visible and they considered enforcement action should be taken against contractors working on the site who they suspected to have carried out the work.

Planning Report

  1. Mr and Mrs X complained that a report to the planning committee about proposed works to trees on the same site was flawed and inaccurate. Their concerns related to the number of trees in the line referenced elsewhere in this statement. They also noted other points about the application and the site. I have not set out the concerns here.
  2. The Council considered the report was accurate. However, they brought Mr and Mrs X’s concerns to the attention of the committee in an addendum. This specifically listed their concerns. It also explained that officers considered the report was accurate. The minutes of the meeting recorded that the addendum to the report had been considered by council members. They also recorded that Mr X and Mrs X, amongst others, made personal statements which were read to the committee. The committee minutes record that the committee voted to allow the works to protected trees set out in the application.

Was there fault by the Council

  1. There was fault by the Council. It seems evident that the intention was to protect the whole line of trees on the site in question, but due to an error, the number of trees to be protected was miscounted. This meant that when some of the trees were felled, the Council had no grounds to take planning enforcement action.
  2. The Council stated it would review the TPO following Mr and Mrs X’s complaint. It is not clear if the Council explained the outcome of this prior to our investigation. This ought to have been the done. However, I do not consider the Council’s eventual position, not to amend the TPO represents fault. This is a decision it is entitled to reach.
  3. Mr and Mrs X’s property does not border the site so their injustice from the initial error with the TPO is limited. However, I note that the Council acknowledged their error and offered a genuine apology to Mr and Mrs X for the loss of trees. I consider this is a reasonable remedy for the impact to Mr and Mrs X of the error that occurred.
  4. I recognise Mr and Mrs X consider the Council should take formal action. But because of the error, there was no breach of the TPO and so no grounds upon which to take formal action. Whether a council should take enforcement action or not is a judgement for council officers. I found there was no fault in respect of the Council’s decision not to take enforcement action.
  5. I also found no fault in the decision not to take action in respect of the elm tree. Work was carried out to the tree, without permission and it was protected. So, this was a contravention of a TPO. However, there was no clear evidence to show who undertook the work. Additionally, the Council decided the work undertaken was not so significant as to warrant action. It decided this in view of the location and prominence of the tree. The Council made its decisions after visiting the site and considering the impact of the works and what evidence there was. While work had been done to a protected tree without permission, the Council is entitled to consider in all the circumstances whether the evidence would support formal action and whether it was appropriate to take formal action. I am satisfied this was a decision the Council took properly.
  6. I understand Mr and Mrs X opposed an application to do further work to protected trees on the site and they considered elements of the case officer’s report to the planning committee were incorrect. However, the Council did not agree that the report was flawed. In any event, it is clear that Mr and Mrs X’s concerns were brought to the attention of the planning committee, who were the decision makers. In addition, Mr and Mrs X’s statements were read to the Committee. As a result, I consider the committee had both positions available to them to enable them to reach a considered decision on the application. The works were also supported by an arboriculture report. So, I do not consider there are grounds for us to investigate this element of the complaint further.

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Final decision

  1. There was fault by the Council, which it has already remedied appropriately with an apology. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman

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