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Tonbridge and Malling Borough Council (20 010 852)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 12 Aug 2021

The Ombudsman's final decision:

Summary: Mr D says the Council incorrectly stated he had carried out unauthorised works to protected trees in 2020. The Ombudsman has not found evidence of fault by the Council and has completed the investigation and not upheld the complaint.

The complaint

  1. The complainant (whom I refer to as Mr D) says the Council has incorrectly stated he carried out unauthorised works to protected trees in 2020.

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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 have spoken to Mr D. In addition, I asked the Council questions and examined its response alongside national planning policy.
  2. I shared my draft decision with both parties.

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What I found

What happened

  1. Four trees beside Mr D’s home are subject to a Tree Protection Order (TPO). In February 2020 Mr D applied to the Council for consent to reduce the tree crowns by 30%. The Council granted permission to reduce the trees by 20% on 26 March. At the end of April, the Council received a complaint that Mr D had carried out unauthorised works to the trees and cut them back too much. The case was allocated to the Planning Enforcement Team. An Officer attended the site on 20 July. In an email that day they noted they were “happy with the work” except for two trees that had been cut back 30% rather than 20%. However, the trees were regenerating, and no long-term damage had taken place. I note Mr D says it was one tree and not two. At the end of July, the Council considered whether further action was needed in the case. It concluded no formal action should be taken because there had been no permanent harm to the trees. The Council notified Mr D in writing on 5 August about is decision.

What should have happened

  1. A tree subject to a TPO cannot have works done to it without permission by the Council. A landowner can apply to the Council, setting out what works are planned. The Council will consider and if it grants consent the works must be completed in line with the permission.
  2. The Council has a duty to investigate complaints alleging unauthorised works to TPOs. An Officer will attend the site and inspect the trees. If the work exceeds the authorisation the Council can decide whether to: take no further action; issue an informal warning or proceed to formal enforcement.
  3. The Council tells me it is in the process of producing a detailed note on tree related matters for Planning Enforcement. That should be issued later this year.

Was there fault by the Council

  1. Mr D feels the Council’s decision was incorrect and it should not have issued its August 2020 letter. I have not found evidence of fault by the Council in this matter. Once the Council received a complaint it had a statutory duty to investigate. The attending Officer noted in an email the same day what she had witnessed. I consider that to be a contemporaneous record of the inspection and her findings. Given the Council followed procedures the Ombudsman cannot question the merits of the decisions it took about the level of work to the trees. That was a decision the Council was entitled to reach.
  2. I understand Mr D was concerned about the August letter on his Council records even though it confirms no formal enforcement action will be taken. The Council has offered to “attach a further case note to the property record indicating that no formal action was taken”. This will be the first record that comes up when an Officer accesses the property records on the planning system. I welcome this offer by the Council, particularly as I have not found it at fault, and I hope this will provide some reassurance to Mr D.

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Final decision

  1. I have completed the investigation and not upheld the complaint.

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Investigator's decision on behalf of the Ombudsman

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