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North Somerset Council (20 013 767)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 03 Oct 2021

The Ombudsman's final decision:

Summary: Mr B complains about the way the Council decided which sites to rewild; it has no documents to show how it chose the site opposite his house. I have found no significant fault by the Council warranting further investigation by the Ombudsman.

The complaint

  1. The complainant, who I will call Mr B, says the Council has failed to follow its constitution for decision making when deciding what areas to rewild or plant trees. The Council cannot show how it selected the areas opposite Mr B’s house from all the land it owns and explain why these areas are suitable to change. Mr B says he and many others will be affected by the changes to the land, in how they use the land and the view from their homes. Mr B is concerned the Council will not continue to maintain the area and it will fall into ruin. Mr B says the coastal path in the immediate vicinity is already barely maintained, overgrown and difficult to use, and he suspects the areas opposite his house will end the same way.

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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 considered:
    • information from Mr B, including during a telephone conversation.
    • information from the Council in response to my enquiries.
    • information available from the Council’s website, including its constitution and strategy documents regarding the issues complained of.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. In 2019, because of concerns about climate change, the Council decided to rewild as many of its verges, parks, and open spaces, where possible. Rewilding allows nature to reinstate a more natural environment. The Council says providing more tree canopy and reducing the time spent cutting grass will help reduce its carbon footprint.
  2. The land is all owned by the Council; it is not proposing to change the use classification, so there is no requirement for the Council to apply for planning permission. There was also no statutory requirement to consult on the proposals, but the Council chose to do so.
  3. The Council decided to plant trees on 26 hectares of its land, and grow tall grass on 41 hectares, changing the management of 26% of its parks and open spaces. One of the open spaces affected is opposite Mr B’s home. Mr B has asked the Council how and why it specifically chose this site.
  4. The Council has a constitution which sets out how it will deliver its services, its decision-making processes, and how citizens can have their say. It also sets out the procedures the Council follows to ensure efficiency, transparency, and accountability.
  5. The constitution sets out the ‘Principles of decision making’ and says “All decisions of the Council will be made in accordance with the following principles and will always be recorded where it is legally required to do so:

11.1.1 Proportionality (the action must be proportionate to the desired outcome)

11.1.2 Due consultation and the taking of advice from professional officers

11.1.3 Respect for human rights

11.1.4 Presumption in favour of openness

11.1.5 Clarity of aims and desired outcomes and

11.1.6 Explaining what options have been considered and the reason for the decision…..”

  1. Mr B says the Council has not complied with the above. The Council says when the decision to introduce a rewilding programme was made at full council the above was complied with. When making decisions on which areas to rewild the Council was not legally required to comply with the above.
  2. The constitution sets out at Part 3 the responsibility for Council functions. This delegates powers to Council officers to take actions and make decisions. The Council asked officers in its Natural Environment Team to identify as many of its verges, parks, and open spaces as possible where rewilding can take place. The Council explains the focus for rewilding was at sites where it carries out grass cutting. Officers used the following general guidelines to decide which areas of grass could change:
    • No changes considered for sport pitches
    • Minimal changes considered for formal parks where grass is currently cut short
    • Highway visibility must be retained
    • Large amenity grass sites will be managed to provide both biodiversity benefit whilst maintaining areas for recreation, creating tall grass buffer zones and variations in sward heights; along with glades and woodland walks in areas of tree planting
    • Linear wide verges with limited amenity value or biodiversity value will be altered to tall grass providing green corridors across the region.
  3. The Council says officers had informal meetings to discuss land and locations but as there were no statutory processes to follow there was no need to formally record officer’s thoughts. Officers used their extensive knowledge of the area to locate and discuss the potential areas.

Was there fault causing injustice?

  1. The Council can make changes to the land it owns and does not have to consider the view from private properties in doing so. While the changes will have an impact for residents, the Council has clearly documented and explained the reasons for making the changes, for environmental benefit. The Council decided to rewild areas of land in line with its constitution. There is no fault by the Council.
  2. The Council considered all open areas it owns to be a potential for rewilding, unless excluded by certain criteria, which it published in reports and consultation documents. The presumption was that all land was in, unless there was a good reason otherwise.
  3. I agree with Mr B the Council cannot clearly show how it selected the site opposite his house. There are no notes from the officers to show their considerations of the available sites. However, I do not agree this breaches the Council’s constitution, which only requires the Council to record decisions where it is legally required to do so. There is no legal requirement for the officers to record the decision on how they selected the site opposite Mr B’s house.
  4. We expect councils to keep clear records to evidence the actions taken, and to show why it has taken them. This is open and transparent and helps any complaint investigation. However, there is enough available information in this case to see that all areas were in unless excluded. Therefore, there was no selection on a site-by-site basis. The Council has not excluded the area opposite Mr B’s house for one of the given reasons, so it does not have a record. Even if the Council had fully documented the actions it has taken in this case it is unlikely to have taken any different decision, and so the outcome would be the same. The lack of recording does not cause Mr B an injustice that would be significant enough for the Ombudsman to take further action.
  5. Although Mr B is concerned at the changes to the site, citizens can still use the area for recreation. The Council has committed to managing the rewilding as needed, as identified on the relevant section of its website. The Council is in the full second year of rewilding and says it has been managing the sites properly and will continue to do so. The Council has not yet rewilded or tree planted the sites opposite Mr B’s house. If the Council fails to manage them properly Mr B could make a complaint about that issue, but at this stage there is no fault by the Council.

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Final decision

  1. I have completed my investigation on the basis there is no significant fault by the Council warranting further investigation.

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Investigator's decision on behalf of the Ombudsman

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