London Borough of Harrow (21 006 748)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 23 May 2022

The Ombudsman's final decision:

Summary: The Council failed to tell Ms B and other members of an allotment association that it had decided not to make a Tree Preservation Order on a line of trees along the boundary of the allotments. It also failed to properly respond to Ms B’s complaint about the matter. The Council has agreed to apologise to Ms B and provide evidence of the action it is taking to prevent such failings in future.

The complaint

  1. Ms B complains that there was fault in the way the Council decided not to make a Tree Preservation Order (TPO) on a line of trees, and that it then failed to stop the removal of the trees
  2. Ms B says that the Council’s failings have resulted in the destruction of a 500-metre line of trees which has caused her great distress. She has an allotment adjacent to the site which she says now floods as a direct result of the removal of the trees. She also says that her outlook from her allotment has changed; it is noisier and her privacy has been affected.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. If we are satisfied with an organisation’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 have:
    • considered the complaint and the documents provided by the complainant;
    • discussed the issues with the complainant;
    • made enquiries of the Council and considered the comments and documents the Council has provided; and
    • given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Relevant legislation and government guidance

Tree Preservation Orders

  1. A Tree Preservation Order is an order made by a local planning authority in England to protect specific trees, groups of trees or woodlands in the interests of amenity. An Order prohibits the cutting down, topping, lopping, uprooting, wilful damage or wilful destruction of trees without the local planning authority’s written consent.
  2. Before making an Order a local planning authority officer should visit the site of the tree or trees in question and consider whether or not an Order is justified.
  3. When considering whether trees should be protected by an Order, authorities are advised to develop ways of assessing the amenity value of trees in a structured and consistent way, taking into account:
    • Visibility - The extent to which the trees or woodlands can be seen by the public
    • Individual, collective and wider impact – The particular importance of an individual tree, of groups of trees or of woodlands by reference to its or their characteristics.
    • Other factors - Importance to nature conservation or response to climate change.
  4. Where it is decided not to make a TPO, the requestor of the TPO should be informed.

Enforcement action

  1. Councils should not take enforcement action just because there has been a breach of planning control. Government guidance says, "Enforcement action is discretionary, and local planning authorities should act proportionately in responding to suspected breaches of planning control.”

Overview

  1. In April 2020, planning permission was sought to redevelop a site and erect several buildings containing residential units. Ms B has an allotment adjacent to the development site.
  2. In September 2020, the allotment association, of which Ms B is a member, requested a TPO on the line of trees which separated the allotments from the development site.
  3. Around three months later, contractors working on behalf of the landowner attended the site early on a Saturday morning and cut down the trees. On the same day, Council officers attended the site to investigate but the works had already ceased.
  4. Ms B contacted the Council to query why the TPO had not been made before the trees were cut down. In the Council’s response, it explained that the trees had been assessed around six weeks before they were cut down, but they did not meet the criteria for TPO protection.
  5. In an email to interested parties, including Ms B, the Council said that the trees did not satisfy the criteria for a TPO because of the nature of the trees and the fact that they could only be viewed from the allotments, to which access was restricted.
  6. Ms B then made a formal complaint to the Council about the way it had decided not to make a TPO. She said that an officer had said the trees were not visible from public land, which was not the case as they could be seen from a public right of way which ran through the allotments. Ms B also complained that the Council had not notified the allotment association of its decision to not make a TPO.
  7. Ms B approached the Ombudsman around six months later because she had not received a response to her complaint. We asked the Council to put Ms B’s complaint through its formal complaints procedure.
  8. The Council apologised to Ms B for not responding to her complaint, and it explained again that the trees in question were not considered to merit TPO protection. It did not comment on Ms B’s specific complaints about the way the Council had assessed the trees, or its failure to notify the allotment association of its decision. Ms B remained dissatisfied and asked the Ombudsman to investigate her complaint.
  9. The Council has since refused to grant planning permission to redevelop the site. The applicant is currently appealing the Council’s decision. The Council says that the applicant has indicated that if the appeal is dismissed, they will work with the Council to secure an acceptable landscaping scheme. The Council says that while this would likely be an informal resolution, it will be monitoring the site and a further review will take place after the determination of the appeal. Alternatively, if the appeal is allowed, the Council will seek the submission of and approval of a landscaping scheme.

Analysis

  1. Following the allotment association’s request for a TPO, the Council visited and carried out an assessment. The Council’s records show that it properly assessed the extent to which the trees could be seen by the public; it was aware that the trees were visible from a public footpath. The Council also properly assessed the characteristics of the trees. It decided the trees had a relatively low amenity value and a TPO was not warranted. I am satisfied that the process the Council follows ensures it assesses the amenity value of trees in a structured and consistent way. I have found no evidence of fault in the way the Council reached its decision to not make a TPO.
  2. Government guidance says that once a council has decided a TPO is not needed, it should inform the requestor, which in this case was the allotment association. The Council made its decision in early November 2020 but did not inform the allotment association until after the trees were cut down in mid-December. This was fault. The Council recognises the delay was unacceptable and it has already apologised to the allotment association. I do not consider it likely that the decision to not make a TPO would be any different if there had been no fault here. This is because decisions to reject TPOs cannot be appealed, and the decision not to make the TPO was made without fault. The Council accepts that its failure to notify allotment holders of its decision will have undermined their confidence in the process, especially in the context of the subsequent removal of the trees. The Council says it will ensure a more robust process is put in place to deal with future external requests for TPOs.
  3. As the trees were not protected by a TPO, the Council does not consider it was a criminal offence for the landowner to cut them down. I have found no evidence of fault in the way this decision was reached.
  4. When the Council granted planning permission for a different development at the site around 25 years earlier, it added a condition which prevented the felling of any existing trees without the Council’s written permission. The Council opened an enforcement investigation to establish whether the removal of the trees in December 2020 was a breach of this planning condition. It found evidence which appears to indicate that most of the trees removed that day were planted after planning permission was granted around 25 years ago, and so were not covered by the planning condition.
  5. The Council says that enforcement action would be extremely difficult to justify and if the matter was to go to appeal, it would be required to provide clear evidence that the specific trees removed were there when planning permission was granted around 25 years ago.
  6. Councils should only take enforcement action where significant harm in planning terms has been identified. As the loss of the trees was not given as a reason for refusing the recent planning application, it indicates that the Planning Committee did not consider it caused any significant harm in planning terms.
  7. The Council says that in the absence of any significant harm, as well as the lack of evidence identifying the breach, it would not be expedient nor sustainable to enforce at this time. I have found no evidence of fault in the way this decision was reached.
  8. I have seen nothing to suggest the trees were removed as a result of any fault by the Council. However, the Council failed to properly respond to Ms B’s complaint about the matter. This will have put Ms B to avoidable time and trouble.

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Agreed action

  1. Within four weeks, the Council will apologise to Ms B for its failure to properly respond to her complaint.
  2. Within eight weeks, the Council will provide evidence that it has put a more robust process in place to deal with external requests for TPOs, which ensures it promptly informs requestors of its decision.

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Final decision

  1. I have completed my investigation and uphold Ms B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman

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