Summary: Mrs X complains the Council has failed to take action in relation to a tree on her neighbour’s property which she says is dangerous. We have not investigated this complaint because there is no evidence of fault in the Council’s decision to allow work to take place on the tree. We are also unable to carry out a fair investigation into how the Council granted planning permission for a new house next to the tree in 2005. Other parts of the complaint are late and some are matters which Mrs X could raise with the Information Commissioner.

The complaint

1. Mrs X complains the Council has failed to take action in relation to her neighbour’s tree which she believes is at risk of falling onto her property. Mrs X also says that pigeons roost in the tree and leave droppings on her patio which she has to clean up.
2. Mrs X says the Council failed to consider the impact of a development on the stability of the tree when it granted planning permission for new houses to be built in 2006. She says the Council has also refused to provide her with information relating to the development.
3. Mrs X says she feels distressed and worried about the tree and is upset at having to clear bird droppings on a daily basis.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue an investigation if we decide there is not enough evidence of fault to justify investigating or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), 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 considered information provided by the complainant and her representative. This includes the Council’s response to her complaint. I have also considered information about the application to carry out work to the tree which is available to the public on the Council’s website.
8. I considered the Ombudsman’s Assessment Code.
9. The complainant had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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My assessment

10. Planning permission for the property next to Mrs X’s home was granted in 2005. As part of the planning permission the Council required the developer to retain a number of trees on the site and these were made subject of Tree Preservation Orders. This includes the tree Mrs X is concerned about.
11. Mrs X is unhappy with the shape of the tree. The tree was pruned into its current shape when the development was built to accommodate her neighbour’s property. If Mrs X was unhappy with the shape of the tree she could have raised a complaint with the Council at the time.
12. I appreciate Mrs X may only have recently become concerned about the condition of the tree. However, we should not investigate how the Council reached its decision to grant planning permission for the neighbouring development. Planning permission, including details of how trees would be retained was granted in 2005. It is unlikely we would be able to establish that any fault by the Council in 2005 had contributed to the condition of the tree today. This is because we would not be able to carry out a fair investigation into a decision taken over 15 years ago. Although some papers regarding the decision are retained, national and local policies have changed and it is unlikely that officers involved will be available or able to recall why certain decisions were made at the time.
13. Mrs X says the Council has refused to provide her with paperwork relating to the 2005 planning application. 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. I see no reason why Mrs X and her representative could not take this matter to the Information Commissioner.
14. The Council is not responsible for dealing with dangerous trees, overhanging branches or nuisance from wildlife using trees. These are private matters between neighbours and the Council has no specific powers to act or intervene even though the tree is subject to a Tree Preservation Order.
15. The Council is responsible for ensuring that the trees subject to Tree Preservation Orders are retained and maintained in an appropriate manner. Mrs X’s neighbour recently applied to carry out work to the tree and the Council gave permission for this to take place. There is no evidence of fault in how the Council considered the proposed works.

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Final decision

16. We have not investigated this complaint. This is because there is no evidence of fault in the way the Council dealt with the application to carry out work on her neighbour’s tree. It is also unlikely that we would be able to carry out a fair investigation into planning permission granted for the neighbouring property in 2005. Mrs X could also have complained sooner if she was unhappy with the shape of the tree and she is able to complain to the Information Commissioner if she believes the Council has failed to provide her with information about a planning application.

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Investigator's decision on behalf of the Ombudsman