Summary: Ms X complained about the Council’s failure to protect trees near her home before they were cut down. We found the Council at fault for not responding to a request to make a tree preservation order to protect the trees. The Council agreed to apologise to Ms X for the distress arising from the uncertainty about whether the trees might have been protected.

The complaint

1. Ms X said the Council failed to follow up on its commitment to protect trees near her home. This failure allowed many of the trees to later be cut down before the Council finally acted and made a tree preservation order (TPO) to protect remaining trees. Ms X said the loss of the trees had a devastating impact on her and other residents removing privacy from their homes and destroying the local environment and wildlife habitat. Ms X wanted the Council to plant mature trees on the boundary of her and other residents’ homes to replace those lost.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I have:

• considered Ms X’s written complaint and supporting papers;
• talked to Ms X about the complaint;
• viewed the area on Internet maps;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared where possible the Council’s comments and supporting papers with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.

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What I found

Law and guidance

6. Councils have powers to make TPOs if they find it ‘expedient in the interests of amenity’ to do so. A TPO protects trees against, for example, felling, pruning and wilful damage and destruction (unless the council has consented to such works).
7. The Government’s Planning Practice Guidance (PPG) contains TPO advice, including about:

• the meaning of ‘expedient’;
• what ‘amenity’ means in practice; and
• what councils might consider when assessing the ‘amenity value’ of trees.

8. In summary, the PPG says, as there is no legal definition of ‘amenity’, councils must use their judgement. And relevant points for assessing amenity value includes the trees’ visibility to the public and their wider impact, for example, their size and form, historic value, and contribution to the landscape. The PPG says a council should visit a site to view trees before making a TPO.
9. Councils must give notice of a TPO to people owning or occupying the land covered by the TPO and give them an opportunity to comment. Councils have to consider any comments before deciding if to confirm a TPO. If councils confirm a TPO, they must again tell the owners and occupiers. The notice should explain the confirmed TPO can only be challenged on a point of law in the courts.

Background

10. In 2021, people started felling trees on private land near Ms X’s home. Another resident told Ms X they had contacted the Council in 2019 about the trees and it had agreed to protect them for five years. Ms X complained to the Council holding it responsible for destruction of the trees.
11. In response, the Council said that it had recently responded to a report about tree felling and visited the site. It had considered the views of residents about local biodiversity and how they appreciated the visual amenity of the trees and shrubs. It also considered the tree area screened existing homes from a nearby housing development. Its officer had therefore decided to impose a temporary TPO on the remaining trees. This gave the landowner an opportunity to comment and time for it to review the situation. (Later the Council confirmed the TPO, which now protects remaining trees in the area.)
12. The Council also said there was no sound evidence it would have considered the trees for a TPO in 2019. This was because the trees were not in a public amenity area but on private land.
13. Ms X came to the Ombudsman pointing out the Council’s inconsistency in saying it would not have made a TPO in 2019 when it had made one in 2021.

The Council’s response to the Ombudsman

14. The Council provided evidence a third party had written in 2019 asking if the trees could be protected by a TPO. A Council officer had asked another officer to make an appointment to look into the request. No appointment was made, and the Council took no further action. The Council said it had reminded officers of the need to respond peoples’ enquiries and ensure appointments took place. And, to ensure consistency, its Planning Department now considered all TPO enquiries. Both its tree officers had left during 2021 but it had recruited a new officer in December 2021. The focus of the new officer’s work was dealing with specific tree issues. However, the Council intended to review its procedures and public information about TPOs and to update its tree strategy once it had addressed the backlog of tree inspections.
15. The Council also said the officer a third party said they had talked to in 2019, about protecting the trees for five years, was a waste enforcement officer. Its waste enforcement officers did not have powers to deal with trees or other environmental issues. And there was no five year limit on TPOs. The waste enforcement officer named by the third party was no longer a Council employee. The Council said it had no evidence it had committed to protecting the trees for five years in 2019 and neither had residents provided such proof. The Council said it had a budget for tree planting throughout the Borough. It would consider planting trees along the nearby public road to offset those removed but it could not publicly fund tree planting on private land.
16. It had confirmed the 2021 TPO, protecting the remaining trees, which included a semi-mature oak tree thought be about 80-90 years old. The Council said the oak was visible from a nearby public road.

Consideration

17. The evidence did not show the Council promised to make a TPO to protect the trees near Ms X’s home. However, it did show a resident had written asking the Council to consider making a TPO in 2019. I therefore found the Council at fault for failing to action that request.
18. Ms X was not the resident that wrote to the Council asking it to make a TPO in 2019. However, Ms X, and other residents, were upset when trees were cut down in 2021. That upset increased when Ms X and her neighbours were told a third party had written to the Council in 2019 about it making a TPO to protect the trees.
19. The Council suggested it might not have made a TPO for the trees in 2019 (see paragraph 12). However, it made and confirmed a TPO in 2021 for several remaining trees, including the semi mature oak. On balance, I found the Council, if it had visited the site in 2019, was likely to have made a TPO.
20. From Internet maps, two roads provided public views towards the tree area. One road served the new housing development. The new road near the trees was a cul de sac serving a few of homes. However, the cul de sac provided clear views towards the tree area. The other road offered limited views of the tree area from gaps between houses. Given the Council’s comments about ‘public visibility’, it was not clear what trees any 2019 TPO might have covered. On balance, the evidence was not sufficient for me to find properly and objectively a 2019 TPO would have protected the trees removed in 2021.
21. However, there was uncertainty about what trees any 2019 TPO might have protected. I therefore found the Council’s failure to action the 2019 written request caused Ms X avoidable distress.

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Agreed action

22. I found the Council at fault for not responding to the 2019 written request for a TPO. And the uncertainty about what might have happened if it had responded caused Ms X injustice. I therefore recommended, and the Council agreed, to write to Ms X apologising for the distress caused by its failure to respond to the 2019 TPO written request.
23. The Council also agreed to send the apology letter referred to in paragraph 22 within 20 working days of the date of this statement and copy it to the Ombudsman.

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Final decision

24. I completed my investigation, finding fault causing injustice, when the Council agreed the actions at paragraphs 22 and 23.

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Investigator's decision on behalf of the Ombudsman