Summary: We will not investigate Ms B’s complaint about a tree preservation order. This is because the complaint is late. Also, Ms B may apply to carry out work to the trees and appeal to the planning inspector if the Council refuses her application.

The complaint

1. The complainant, who I will refer to as Ms B, complains that the Council included two trees close to the exterior of her property in a tree preservation order. Ms B says the trees damage her property. Ms B would like to overturn the tree preservation order so she can remove the trees and replace them with smaller trees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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))
5. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about works to protected trees.

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How I considered this complaint

6. I considered information provided by Ms B and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council says the tree preservation order was issued in 2015. So, the information suggests Ms B has not complained to us within 12 months of becoming aware of the issue she complains about.
9. I find it was reasonable for Ms B to have complained to us before now about the Council issuing the tree preservation order. But, even if Ms B only became aware of the tree preservation order recently, we would still not investigate. This is because the passage of time since the events complained about means it is unlikely we could make sound findings about whether there was fault by the Council when it made the order.
10. In addition, Ms B may put in an application to the Council to carry out works to the protected trees. The Council says it cannot agree to the removal of the trees but may agree to a reasonable pruning proposal. If the Council refuses Ms B’s application, she may put in an appeal to the planning inspector. I find it is reasonable for Ms B to use this right of appeal because the planning inspector has the power to overturn the Council’s decision.

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Final decision

11. We will not investigate Ms B’s complaint because part of the complaint is late and it is reasonable for Ms B to apply to carry out works to the trees, and if needed, appeal to the planning inspector.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman