The Ombudsman's final decision:
Summary: Mr X complains, on behalf of a campaign group, that the Council failed to properly consider their representations about the ownership of a strip of land which contained protected trees. We decided we should discontinue our investigation into Mr X’s complaint. This is because the central issue is a boundary dispute that we cannot resolve. We also considered we could not achieve a worthwhile outcome through an investigation.
- Mr X complains on behalf of a campaign group that the Council failed to properly consider their representations about the ownership of a strip of land which contained protected trees. They argued the trees were outside of a plot the Council sold for development. They argued as a result, the Council should retain the trees. Mr X says the Council misrepresented the legal situation when responding to their representations.
The Ombudsman’s role and powers
- 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 it is unlikely further investigation will lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended).
How I considered this complaint
- I spoke to Mr X and considered the information he submitted to us. I also looked at the background planning decisions for the site in question on the Council’s website.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- In 2005 the Council sold an area of land to a developer which was adjacent to a site the developer already owned.
- Mr X represents a campaign group who are in dispute with the Council about the loss of five trees along the front of development site.
- The site was granted outline planning permission for development in 2016. The planning decision includes reference to the trees and acknowledges, due to their size, they would need to be removed to facilitate the development. The case officers report notes the site was likely to be unviable for development if the trees remained. Planning officers decided the trees could be removed. As part of the developer’s application, they agreed to make a considerable payment to facilitate the planting of 20 new trees. These were to be planted either ‘on-street’ or in public open spaces within one mile of the site.
- The case officer’s report noted comments by highway officers in response to the application. They stated there was an anomaly in the site boundary for the application, in that it did not take account of the existing highway boundary. Highways officers commented that five trees at the front of the site were presently within land designed as highway as things stood. They suggested some of the highway land would need to be ‘stopped up’ as a result. Although highways officers noted this, they did not object to the application.
- A subsequent reserved matters planning application was approved. This included a landscaping plan which showed seven trees to be planted to the rear of the site.
- The five trees have since been removed.
Mr X’s Group’s position
- Mr X’s group refer to the plans which show the land sold to the developer in 2005. Mr X argues that the red line defining the land being sold does not include the area the trees were on. He states that the strip of land which contains the trees is highway land. So, the group challenged the precise boundary of the land transferred from public ownership.
- In correspondence with the Council in 2020, the group noted the Council’s correspondence with the buyer back in 2005. It had referred to the land being sold as approximately 180 square metres in size. They stated this, and the position of the red line showed that the land sold did not include all the land in question. The group considered, notwithstanding the sale in 2005, that the Council still owned a thin strip of land on which stood the trees. The group stated the Council should not give away this strip of land but keep the land and trees as this was what the community wanted.
- The group called into question the way in which the Council reviewed the situation as a result of their challenge. They stated the Council had wilfully ignored the evidence provided by the documents the group presented to them and that the red line on one of the plans was overdrawn, making the boundary less clear when the boundary on the original sale plan was clear.
- All the trees have been removed as at the date of this statement. Mr X stated the group had spent a great deal of time and effort fighting for the retention of the trees, which they felt should be recognised. They also sought, as a result of their complaint, for trees to be replanted on the strip of land they considered the Council still owned. They felt the Council had failed to listen to residents on this issue.
The Council’s Position
- The Council told Mr X that its files from the sale of land in 2005 showed the Council has intended and understood at the time, that the land with the trees on it had been part of the land sale. The Council stated this was evident from its actions, in that the sale particulars made reference to the trees on the property being made subject to a Tree Preservation Order (TPO). The Council stated it had then subsequently made the five trees subject to a TPO. The Council stated the plan from the time of sale was not clear. However, it stated the extent of the land that was part of the sale had been clear from the description of land being sold. This noted the sale included land right up to the adopted highway and referred to the land being sold as that “fronting” the road. It also explained that it had given assurances to the buyer as part of the sale that the land being sold was that abutting the adopted highway. So, it would be an unreasonable position for the Council to now argue that it had retained a strip of land between the land it sold and the highway boundary.
- When we investigate complaints we have to consider if there is fault, and if that fault led directly to injustice. In deciding whether to investigate, we also have regard to whether we can achieve a worthwhile outcome by investigating and if the outcome someone wants can be achieved.
- The basic premise of Mr X’s complaint to the Council was a challenge to the precise position of the boundary of the land the Council sold to a developer. The Ombudsman cannot determine the land ownership or boundary dispute that remains at the heart of their complaint.
- Mr X acknowledges this. But, he asked that we investigate the way in which the Council considered evidence they put to the Council in the form of legal arguments, documents and plans. They felt the Council dismissed this evidence too readily and they say it amended a plan unnecessarily when arguing it’s case. I recognise the group strongly felt that the trees should not be lost to development. However, I do not consider we should investigate their complaint further. I say this because:
- The legal documents and arguments they make, are essentially arguments about the extent of the land the Council sold. They challenge the boundary of the land, and to an extent, the highway boundary. It is not possible to separate out the arguments they make about the handling of their challenge with the substantive issues they raised with the Council – the boundary issues.
- It is also evident that the developer has obtained planning permission to develop the site. When the planning authority granted permission, this decision had regard for the trees and whether they could be removed or should be retained. The potential issue with the plan showing the site boundary was taken into account when the planning decision was made.
- Part of the outcome the group wishes to see is replacement trees planted on the same strip of land to replace those lost. While it is not clear exactly where replacement trees will be planted, the decisions made through the planning system already secured funding from the developer to plant replacement trees in the local area. So, replacement planting, has been considered and agreed already.
- I consider there would be significant limitations around what we could investigate as being severable from the boundary issue. I also consider that there is limited scope for us to achieve a worthwhile outcome or remedy to the complaint considering the issue of replacement planting has already been addressed by the planning system. As a result, I decided we should not continue to investigate the complaint.
- I discontinued my investigation and closed my file.
Investigator's decision on behalf of the Ombudsman