Summary: We will not investigate Mr and Mrs X’s complaint about the Council’s handling of a tree preservation order (TPO) on a tree which they say threatens their property and wellbeing. Mr and Mrs X had a right of appeal to the planning inspector on the recent TPO decision which it was reasonable to use. They used their right of appeal on the earlier 2019 decision.

The complaint

1. Mr and Mrs X complain the Council issued a Tree Preservation Order (TPO) on a huge tree which is diseased and threatens their home. They say the Council has refused to remove the TPO and recently rejected their application for works. Mr and Mrs X say the Council has caused them stress, anxiety, and expense because they must monitor the tree. They want the removal of the tree, the roots of which may be damaging their garage. They want an investigation into the conduct of the tree officer who they say originally failed to inspect the tree, acted dishonestly, and uses flawed information when making decisions. They say the Council has not followed its complaint procedure and not always provided information.

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The Ombudsman’s role and powers

2. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
3. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended)
4. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice
• appeals in relation to Tree Preservation Orders.

5. 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)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I have considered Mr and Mrs X’s information, comments, and reply to the draft decision statement. The information includes the Council’s letters dated 18 December 2019 and 8 January 2020 replying to their complaints about the tree officer’s conduct and standards in public life.

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What I found

8. In 2019 the Council refused Mr and Mrs X’s application to fell the TPO tree. In February 2020, the planning inspector rejected their appeal against the Council’s decision.
9. In November 2020 Mr and Mrs X applied again for permission to do works or fell the tree. On 24 December 2020, the Council issued a notice giving its reasons for refusing the application. The Council’s covering letter advises they have 28 days to appeal the refusal to the planning inspector. The Council says it is against the felling of the tree because it has amenity value and inspection has shown it is healthy at lower levels (albeit it has a disease). It was in full leaf that summer, and removal would be detrimental to the conservation area including diversity of species. Mr and Mrs X disagree with this assessment and quote, for example, information from the Royal Horticultural Society.
10. Mr and Mrs X replying to my draft decision say they want the behaviour of the tree officer investigating. They say he lied and may have committed 122 acts of maladministration. He should be removed from front line duties. They say he misled the planning committee, tampered with evidence, and refused to provide them with information to which they are legally entitled. They say the Council’s code of conduct on ethical standards does not include officer conduct.
11. Mr and Mrs X also say regarding our jurisdiction:
1. They could only appeal to the planning inspector again if they have new information such as proof the tree roots are damaging their garage which would be expensive to investigate. They lost trust in the planning inspector due to inconsistent decisions and a lack of understanding of tree health.
2. They say they do not believe they are complaining late. They tried to complain to this office in 2020 and found our office was not receiving work (this lasted 5 months). They complained in January 2021 within a year of the Council’s last communication of 23 February 2020. They also had a family crisis.
3. They say in January 2021 they wrote to the Council about the tree officer’s latest report and requested a copy of the risk assessment. They wanted this for their home insurance company. On 6 January, the Council replied refusing to comment. They say this is within our jurisdiction.
12. On 17 February 2021, we recorded receipt of Mr and Mrs X’s complaint.

Analysis

13. I will not investigate this complaint for the following reasons:
14. The complaint is outside the Ombudsman’s jurisdiction because there is or was a right of appeal to the planning inspector against the Council’s recent decision on the tree (see paragraphs 2 & 4). It is reasonable for Mr and Mrs X to use their right of appeal. They have appealed before and the planning inspector has the power to remove the TPO. It is for the planning inspector to consider evidence that the Council’s decision is flawed. A planning inspector’s decision is challengeable at court.
15. The Ombudsman cannot lawfully investigate the first application in 2019 because Mr and Mrs X used their right of appeal to the planning inspector (paragraph 3). This includes all actions relating to the case.
16. The period before 17 February 2020 is outside the Ombudsman’s jurisdiction because Mr and Mrs X complain late due to being outside the 12 month ‘permitted period’ (see paragraph 5). I will not exercise discretion to investigate because Mr and Mrs X could have complained sooner. In addition, there is nothing to achieve because the planning inspector upheld the validity of the TPO in February 2020. We cannot investigate case actions relating to an appealable decision.
17. It is reasonable for Mr and Mrs X to go to the Information Commissioner if there is a problem obtaining information which affects them (paragraph 6). The Information Commissioner is the specialist agency with powers relating to freedom of information and subject access requests.
18. There is no injustice separable from the Council’s decision on the tree. The Council has explained its position and replied to a complaint about the tree officer. It does not need to reply further on the history. Normally, where there is a right of appeal it is appropriate to challenge a decision by that route rather than via the complaint procedure.

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Final decision

19. The Ombudsman will not investigate Mr and Mrs X’s complaint about the Council’s handling of a tree preservation order (TPO) on a tree which they say threatens their property and wellbeing. Mr and Mrs X had a right of appeal to the planning inspector on the recent TPO decision which it was reasonable to use. They used their right of appeal on the earlier 2019 decision.

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Investigator's decision on behalf of the Ombudsman