City of London (21 000 565)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 24 Nov 2021

The Ombudsman's final decision:

Summary: The Ombudsman found no fault by the Council on Ms D’s complaint about its excessive actions when it removed trees and vegetation from land it owns to the rear of her property following her report to it of it trespassing on to her land causing damage. It had no legal obligation to notify her of the works. Officers responded properly to her report and acted on it. They later explained why they removed what they did.

The complaint

  1. Ms D complains about the excessive actions of the Council when it removed mature, established trees and vegetation from its land to the rear of her property following her report of trees and ivy trespassing and damaging her property; as a result, it left her property and a boundary concrete wall exposed as well as costing her financially for emergency repairs to the wall.

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What I have investigated

  1. I have not investigated any complaint Ms D has about property damage or the impact the works had on her property’s security. The paragraph at the end of this draft explains why.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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The Council’s Conservation Area policy

  1. Conservation areas are chosen because of their special historic and architectural interest and have special protection under planning laws. Trees make a valuable contribution to the special character and appearance of the conservation area. For those not protected by tree preservation orders, 6 weeks written notice is given to the local planning authority of intended works.
  2. The green open spaces and mature vegetation is essential to the historic and visual character of the area. Some is selected as urban open spaces. Scrub and grassland in the green open spaces are important in terms of ecological value as habitats.

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How I considered this complaint

  1. I considered all the information sent by Ms D, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Ms D and the Council. I considered her response.

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What I found

  1. Ms D lives in a conservation area. To the rear of her house is an area of Council owned grassland. She is unhappy with the way it responded to her report about a tree on its land to the rear of her garden fence. She wanted the Council to properly maintain this area. Without contacting her, a work team (the team) visited and removed several trees and all vegetation growing over her boundary fence.
  2. She is unhappy because they removed more than needed and believes its actions were malicious because of her report. Its actions left the fence and the rear of her property exposed. It also destroyed an area of the green space to the rear of her property. Ms D spent £480 on emergency repairs as part of her wall collapsed. She is unhappy with the Council’s poor communication throughout.

What happened

  1. In August 2020, Ms D emailed the Council explaining: her property is behind a public open space; there were large trees close to her boundary wall; she had called a few years ago about having these maintained as they were huge with additional stems growing alongside the main stump; she had cut back ivy growing along the boundary but had concerns about the wall which was bowed and broken in places; tree roots or ivy were trespassing on to her property, creating a nuisance, and causing considerable damage to the wall; the unsafe condition of the wall now meant it might need replacing; she would seek evidence from a surveyor if needed.
  2. Ms D’s email ended by asking the Council to investigate and let her know its proposals for rectifying it and her damaged wall. A few days later the Council acknowledged her email.
  3. Three weeks later, Ms D contacted the Council again, unhappy it failed to contact her as requested but had instead, removed all the trees and foliage. She said much of the foliage removed caused her no problem. Ms D is concerned the works make it easier for anyone wanting to access her property from the rear.
  4. The Council replied the same day saying it monitored the boundary of her property on a 3 yearly cycle. Its usual process following a report is to visit the site to see if works are needed. There was no need to speak to her as it was clear her wall was affected by the tree roots or ivy, and she intended to claim damages. Honeysuckle covered most of the wall with thick shrub next to it. The Council, therefore, looked wider at the vegetation impacting on her wall than just the tree roots and ivy she reported. The site needed leaving in a condition it could easily maintain.
  5. Responding to her formal complaint, the Council confirmed the space near her house was not previously identified for scrub clearance. The officer receiving her report followed procedures in its Management of Vegetation Against Property policy (VAP) because she claimed nuisance. It explained what works were required following a visit and ‘courtesy’ visits for these types of cases are limited to those with high priority. As it carries out 900 planned and reactive works a year, it is not economically feasible to meet residents on site where work is planned. As Ms D made it clear in her report about the nuisance caused, the officer decided there was no reason to meet beforehand. The team removed vegetation potentially impacting on her wall of 30 metres.
  6. In response to my enquiries, the Council explained:

2020

July:

  • About 4 weeks before Ms D made her report, the trees at this location were inspected. The inspector could not access them because of growth around them. In these circumstances, an inspector will recommend removal of vegetation to allow reinspection. I have seen a copy of this inspection report.

August:

  • Early this month, Ms D emailed the Council and referred to property damage in her initial email which meant a site visit was needed to assess whether it was responsible for the vegetation and reduce any possible nuisance.
  • A couple of weeks later, a site inspection found vegetation growing extensively on and over her wall. Records made state 2 small sycamore trees would be removed as well as a small cherry tree in poor condition. The 2 larger sycamores would have the ivy removed as recommended by the initial inspector. I have seen a record of this visit. It also noted the decision to clear the vegetation along the boundary and leave some ‘dog wood’ in place a little way off it.
  • The Council cleared the low scrub around the 2 large trees and removed the ivy to allow for their inspection. In response to my draft decision, Ms D says this is incorrect as the Council removed all vegetation, not just the tree but 5 others, 2 of which were not nearby but further along the wall.
  • On 24 August, the Council emailed Ms D saying one of the sycamores near her wall potentially could damage it with a stem touching the fence at ground level which is why it removed it. A metal plate bracket attached to the tree to support Ms D’s fence, had become ingrown and a point of weakness and a significant factor for the need to fell it. I have seen a photograph showing this bracket. A smaller sycamore, 1 metre from the wall, had a split stem with occluded bark (occlusion is the process where a wound is increasingly closed by the formation of new wood and bark round it). For safety reasons, and the fact it was an invasive non-native species which it tends to remove, the team would have removed it.
  • Later the same day, Ms D emailed the Council saying the team failed to leave a couple of feet of foliage near her boundary but had instead, removed it all. An email from an officer in response said she was wrong as this was not agreed. Ms D replied saying she was not unhappy with vegetation, only the trees. In response to my draft decision, Ms D provided a copy of a letter sent by her neighbour in October 2020. This says the neighbour spoke to the workmen who said the works were because of a complaint and threat of legal action, by which point most of the vegetation along the boundary was cut down. He says the cutting of the brambles and ivy was stopped at the request of Ms D.
  • For these reasons, and Ms D’s reference to property damage, the Council decided to fell the trees. Works were done on 24/25 August.
  • To access the wall, it would need to remove the vegetation. Clearing it by hand would take days. Using a machine, it managed to do it quickly.
  • In addition, the area behind her house is an area of grassland. Scrub contributes to its loss. Its removal is common and standard. It also took the opportunity to make a nearby entrance to the area more accessible as it was overgrown. Bramble can grow up to 8 feet in a year, so pruning benefits would be lost quickly if not removed.
  • There were no operational reasons to liaise with Ms D about the works needed. In her email, she stated ‘I believe that a visual inspection will support what I am saying’. The Council said this was indeed the case. All works were done from its land with no access needed to her land. Courtesy visits were restricted and limited to priority matters for management cases.
  • The official bird nesting season is from February to August. It quoted the Arboricultural Association website which states vegetation works should be done outside this period. Despite this, the nesting period may start before this and extend beyond it with the busiest time being from March to the end of July. The Council said all staff are trained conservation arborists who assess for nesting birds. There was nothing to suggest bat roosts.
  • Under its Open Spaces Tree Safety Policy, the risk management should not lead to a loss of character or species diversity. It should aim to balance nature and landscape conservation, public access, recreation and enjoyment, and risks posed to safety.
  • The bulk of the vegetation cut fell outside the notification requirements for the conservation area. The trees were unsafe and potentially damaging property and it had to abate a nuisance.
  • The Council received confirmation from a local planning authority, which had received a complaint about the works, that it had closed its planning enforcement investigation of the removal of trees within a conservation area. Its reply said its decision was because the tree works were not significant enough for it to act on.

Analysis

  1. I found no fault by the Council on Ms D’s complaint and in reaching this conclusion, took the following in to account:
      1. The Council has a duty of preserving or enhancing the character or appearance of a conservation area. (section 72, The Planning (Listed Buildings and Conservation Area) Act 1990)
      2. The trees the Council removed were in a conservation area but were not subject to tree preservation orders. It is the landowner of both the open space and the trees on it.
      3. Trees in conservation areas are protected by section 211 of the Town and Country Planning Act 1990. Under this, anyone wishing to carry out works on such a tree must notify the local planning authority of their intention to carry out certain works on them 6 weeks before carrying them out, unless an exception applies. This period gives the local planning authority the opportunity to consider whether it needs to make a tree preservation order for the trees.
      4. The Council was exempt from this requirement. A section 211 notice is not required for the, ‘cutting down, topping, lopping or uprooting of a tree by, or on behalf of the authority’. (paragraph 132 reference ID: 36-132-20140306, Tree Preservation Orders and trees in conservation areas)
      5. This position is also set out in the Council’s ‘Supplementary Planning Document: Tree Strategy Part 1’ (adopted 15 May 2012). This confirms it is exempt from the requirement to submit a section 211 notice for works to its own trees in conservation areas. (paragraph 6.4.5). It also states there is no statutory duty on it to consult with adjoining occupiers before undertaking routine maintenance works to its tree and may be consulted where appropriate. (paragraph 6.4.7)
      6. I also considered Ms D’s initial email, which alerted the Council to the vegetation issue, and its reaction to it. Her email referred to tree roots or ivy, ‘trespassing onto my property and causing a nuisance and has caused considerable damage to the wall which needs to be rectified’. She also alerted it to the condition of her wall which she says had deteriorated to such an extent, she believed it may need to be replaced as it appears unsafe. In addition, she also referred to the presence of, ‘large trees close to the boundary wall’.
      7. Under the VAP, her email put the Council on notice of property damage. The VAP’s main focus is on possible subsidence claim management and meeting its procedure. Ms D’s email was, therefore, considered within this policy because of her reference to property damage and establishing what, if any, potential liability the Council had in these circumstances. The Council, in its response under its complaints procedure, accepted it needs to revise this policy to cover cases such as this. Ms D’s email did not amount to a claim but alerted the Council to the possibility of one. This meant many of the procedures in the VAP were not strictly appropriate, as these were set up for formal claims and referrals to the Council’s insurer.
      8. There was no legal obligation on the Council to notify Ms D or consult her on the works it proposed doing on its own land. Officers visited to assess the situation shortly after receiving her email.
      9. Officers explained to Ms D why it carried out the works which were more extensive than she wanted. Her report was not only about the proximity of trees but, ivy. When officers visited, they were not limited to just considering the impact on her property of trees and ivy and their condition but, correctly looked at all vegetation that might have an impact. This included thick scrub and honeysuckle, for example. They also had to consider leaving the site in a condition its team could easily manage in the future as well as opening an overgrown entrance point to the area members of the public could use again.
      10. The works carried out also have the benefit of allowing Ms D to inspect her fence/wall from outside of her property and so decide what repairs and other works might be needed to maintain its upkeep.
      11. There is no evidence to support the allegation the works done were more extensive because they were driven by spite. I am satisfied the Council responded properly to her report by visiting to inspect the problem and arranging to carry the works out.
      12. While the Council did not need to follow the section 211 notice procedure, it still had to consider whether the works it intended to carry out would affect nesting birds. This is because under section 1 of The Wildlife & Countryside Act 1981, it is an offence to intentionally kill, injure, or take any wild bid, or take or destroy their eggs or nest, or damage a nest, while that nest is in use or being built.
      13. There is no legal definition of when the bird nesting season starts and ends. Natural England advises no development works should be done between March to August although birds could nest outside this period. Natural England is the government’s adviser for the natural environment in England.
      14. The team’s works were done towards the end of August. While the records do not show whether birds, or their nests, were present or absent during the initial site visits, or during the 2 days the works were done, I considered the Council’s comments about its trained staff and the fact works were done towards the end of August. There is no evidence on which to conclude the Council failed to consider and check for the presence of nesting birds.

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Final decision

  1. The Ombudsman found no fault on Ms D’s complaint against the Council.

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Parts of the complaint that I did not investigate

  1. I did not investigate the following complaints:

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Investigator's decision on behalf of the Ombudsman

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