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Solihull Metropolitan Borough Council (20 011 892)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 20 Aug 2021

The Ombudsman's final decision:

Summary: Mrs C complained the Council failed to protect a tree subject to a Tree Protection Order and take enough action against her neighbour for unlawful works to the tree. As a result, she said she experienced distress due to the irreparable harm to the tree. We found the Council properly considered Mrs C’s concerns and followed its policy. It reached a decision it was entitled to reach; we cannot therefore criticise the merits of its decision.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complained the Council failed to protect a tree which is subject to a Tree Protection Order (TPO). She said it:
    • was wrong to trust her neighbour would do the works to the tree in accordance with its planning conditions and ought to have known this was likely to cause harm to the tree;
    • failed to take appropriate enforcement action;
    • failed to communicate with her and keep her informed about its decisions.
  2. As a result, Mrs C said the tree has experienced irreparable harm. She also said she experienced distress and had lost trust in the Council’s ability to protect the tree.

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The Ombudsman’s role and powers

  1. 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’. 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)
  2. 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)
  3. 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)
  4. 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. As part of my investigation, I have:
    • considered Mrs C’s complaint and the Council’s responses;
    • discussed the complaint with Mrs C;
    • considered the information provided by the Council; and
    • given Mrs C and the Council the opportunity to comment on a draft version of this decision and considered the comment I received.

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What I found

Law and guidance

Tree Protection Orders

  1. A Tree Protection Order (TPO) is an order made by a council to protect certain important trees, tree groups or woodlands.
  2. The Town and Country Planning Act 1990 says it is an offence for a person to act in contravention of a TPO. Action must be taken within six months, or within three years if the prosecutor became aware of knowledge to justify proceedings.

The Council’s Planning Enforcement Policy

  1. The Policy says its powers are discretionary and it may use these when it considers it proportionate and expedient to do so.
  2. The Policy says the Council will investigate allegations of breaches of planning control or unauthorised works to protected trees. This includes:
    • gathering information and discussing the matter with the alleged offender. This may also include a site visit;
    • assessing whether a breach has occurred;
    • assessing whether a breach is a material breach and what level of harm it causes; and
    • if a breach is found, whether it is proportionate and expedient for it to take any action.
  3. The Council has adopted a harm assessment form which provides a score system to assist it with prioritisation of cases and help it to determine if it would be expedient to pursue an identified breach of planning control. This means cases below a specified threshold will not normally be pursued.
  4. In cases where the Council can take prosecution action in the courts, such as unauthorised works to a listed building or a protected tree, it has adopted two further tests. These are an evidential test and a public interest test. The purpose of the tests is to help it decide if it would be expedient to prosecute an alleged offender in court.

Background

  1. Mrs C has two trees which are subject to Tree Protection Orders at the front of her property. The trees overhangs both her and her neighbours’ (Mr X) driveways.
  2. Mr X has made various planning applications to do works to the trees to reduce their size and overhang to his property. The Council approved some of these applications.
  3. In 2018, Mrs C told the Council Mr X had cut one of the trees more than had been approved in a planning application. She also shared photos of Mr X doing the works himself.
  4. The Council told Mrs C it had investigated her concerns, but it did not find the works done to the tree by Mr X was contrary to its planning approval. However, its Forestry Officer found the works did not meet the British Standard guidelines. It told Mr X remedial works to the tree were necessary and advised him it would be prudent to get a qualified person to carry out the works.
  5. Mr X also made another planning application for further works to the tree. However, the Council refused the application as the works were not needed and would cause harm to the tree. Mr X appealed its decision to the Planning Inspector.
  6. The Planning Inspector refused Mr X’s appeal. He said the proposed work would result in considerable harm to the appearance and health of the tree, it would be detrimental to the character and appearance of the area, and insufficient justification had been provided by Mr X.

What happened

  1. In 2019, Mr X made a further planning application for works to the tree. The Council sent Mrs C a notification letter of the proposed works. It also inspected the tree.
  2. Mrs C said she was told by the Council that Mr X’s planning application was inadequate and would be withdrawn. However, Mrs C said she made an objection as a precaution anyway.
  3. Six months later, the Council approved some of the works proposed in Mr X’s planning application, but parts of the works were either reduced or refused.
  4. In summer 2020, Mr X did works to the tree.
  5. Mrs C complained to the Council. She said Mr X had cut the tree more than it had approved, including the remaining branches overhanging his driveway. She said the tree was now unbalanced and growing to one side. She also said Mr X did the works himself, but he was not qualified to do so.
  6. In response the Council acknowledged Mrs C was unhappy it had approved Mr X’s planning application. It explained it had considered her objections, the Planning Inspectors previous decision and inspected the tree before approving the application. This led to its refusal of Mr X’s proposed works for a 30% reduction to the tree, but it agreed to a 10% reduction. It confirmed the approval did say any person doing the works must be suitably qualified and had to meet the British Standards guidelines. However, it had decided to take no further action. In reaching its view it said:
    • it had inspected the tree and considered the work that had been done to the tree;
    • it found the tree appeared to be reasonably well balanced, in good health and still of sufficient standing to significantly benefit the character and appearance of the area;
    • it was difficult to know exactly how much work had been undertaken and who had done the works; and
    • it was not clear beyond all reasonable doubt that unauthorised works had occurred.
  7. Mrs C was not satisfied with the Council’s findings. She said it let Mr X get away with damaging the tree and it ought to have know he would do so based on the past events. She said the Council should have supervised the works to the tree. She also felt the Council approved Mr X’s planning application without giving enough consideration to the previous tree officers and the Planning Inspectors views.
  8. The Council did not change its view. It told Mrs C:
    • it had considered the planning history of the tree, but each application is considered on its own merits;
    • It acknowledged there may be some irreversible damage to the tree, but it was not satisfied it had enough evidence to prosecute in court for a Breach of Condition or unlawful work against a protected tree;
    • at the time, it was aware its contractor had previously undertaken works on the tree for Mr X, it therefore believed a qualified person would undertake the works; and
    • it has arranged for an assessment of the tree in the summer to review its long-term health and wellbeing, including its shape and structure. It said it will keep Mrs C informed of its findings.
  9. Mrs C remains unhappy about the Council’s handling of her concerns. She said she has lost trust in its ability to protect the tree and complained to the Ombudsman.
  10. In response to my enquiries, the Council said its Planning Officer had left its service. This appears to have resulted in some emails being lost. It is therefore unsure if any further information was provided to Mrs C following her objection to Mr X’s planning application in 2019. It also said is consultation letter to Mrs C explained it cannot always keep third parties informed on planning applications.

Analysis

  1. Mrs C’s complaint includes how the Council handled her objection and kept her informed about its decision on Mr X’s planning application in mid-2019. This part of her complaint is therefore late. However, as Mrs C was not aware the Council was still considering the planning application until early 2020, I am therefore satisfied it is appropriate to exercise my discretion and consider this part of her complaint.

Did the Council fail to protect the tree?

  1. Mrs C believes the Council ought to have know Mr X would not cut the tree as set out in the planning permission. She said this was because Mr X had failed to follow conditions of previous planning applications and was intent on cutting the tree further.
  2. I am not satisfied the Council was at fault for failing to protect the tree. In reaching my view I am conscious:
    • it considered Mr X’s planning application on its own merits and had regard to Mrs C’s objections, the previous planning applications and the Planning Inspector’s decision;
    • It discussed the planning application with Mr X’s and limited the works to the tree to only include what it found acceptable;
    • It was aware Mr X had previously used its contractor to do works on the tree. It therefore expected he would arrange for a suitably qualified person to do the works; and
    • The law or guidance does not require the Council to arrange for works on a protected tree to be supervised.

Did the Council fail to consider appropriate enforcement action?

  1. The Council had discretion to decide if enforcement action is expedient in the circumstances. However, in doing so it must consider Mrs C’s concerns as set out in its Policy.
  2. I am satisfied the Council properly considered Mrs C’s concerns. This is because it assessed the alleged damage to the tree. It found the tree healthy but agreed some irreversible damage may have been caused. It also considered its evidential burden to prove beyond any reasonable doubt that unlawful works had been undertaken. It found it did not have enough evidence to do so, and decided it was not expedient for it to take further action. As there is no fault in the process the Council followed, I cannot criticise the merits of its decision.
  3. The Council also said it was not certain who had undertaken the works on the tree. I acknowledge Mrs C said this was Mr X and she has photo evidence to show this. However, even if the Council was satisfied it was Mr X who did the works, it was not certain it had enough evidence to take the matter to court. I am therefore not satisfied this evidence would have led to a different outcome.

Did the Council fail to communicate with Mrs C and keep her informed about its decisions?

  1. Mrs C said the Council led her to believe Mr X’s 2019 planning application for works to the tree was inadequate and would be withdrawn. She said she made objections to the proposals as a precaution.
  2. The Council said it discussed the planning application with Mr X. This led to a reduction in the proposed works to the tree. The Council said it considered Mrs C’s objections and approved the amended application in early 2020. However, it could not say if its Planning Officer had corresponded with Mrs C between her objections and its decision.
  3. There is no statutory requirement to publicise amendments to a planning application that are submitted before the application is decided. However, the Ombudsman has taken the view that a council should generally be subject to the same publicity procedure as the original application unless the amendments would not increase the impact on neighbours or others to whom the publicity was directed.
  4. I have not found fault by the Council for failing to keep Mrs C informed about the amendments to the planning application. This is because the approved amendments reduced the scope of the works to the tree. In addition, Mrs C had made her objections which the Council considered, I am therefore also satisfied her view was considered by the Council before it made its decision.
     

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Final decision

  1. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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