Summary: Ms B complained that the Council delayed in implementing Tree Preservation Orders on her land and failed to notify the purchaser of the property that orders were pending. So, the purchaser felled the trees causing her distress. We found no fault on the Council’s part in relation to the implementation of the orders or in relation to the information it gave the purchaser. However, it was at fault in that it delayed in responding to Ms B’s request for information. The Council has agreed to apologise to Ms B.

The complaint

1. Ms B complains that the Council delayed in implementing Tree Preservation Orders on her land and failed to notify the purchaser of the property that orders were pending. So, the purchaser felled the trees causing Ms B and her family distress.
2. Ms B also says the Council failed to respond to her freedom of information request.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Tree preservation orders

7. A tree preservation order (TPO) can be made by a local planning authority to protect specific trees, groups of trees or woodlands in the interests of amenity. A TPO makes it an offence to cut down, prune, uproot or wilfully damage a tree without the local planning authority’s written consent.
8. The Council can begin the process or respond to a request to make an order. It will complete a site visit to assess the amenity value of the tree and, if it decides to make a TPO, it must invite representations from people with an interest in the land. It must also make a copy of the order available for public inspection. The Council must consider any objections and comments and decide whether to confirm the order as originally made or in a modified form. It must notify affected parties of its decision. Government guidance does not specify a timescale for this process.
9. A TPO comes into effect on the day the Council makes it. It remains in effect for six months unless the Council decides to confirm or not confirm it. A confirmed order should be recorded promptly in the Local Land Charges Register as a charge on the land on which the trees are situated.

Local land charges

10. Local land charges are generally financial charges or restrictions on the use of the land imposed by local authorities. They affect the owner of the land and so must be registered to alert purchasers to their existence. A purchaser of land will make an official search of the Local Land Charges Register as part of the conveyancing process. Common types of local land charges include: conditions imposed in a planning permission; listed buildings; conservation areas; and tree preservation orders.

The Council’s policy

11. The Council’s policy for the protection of trees and woodlands states that trees of particularly significant public amenity value will be protected by making tree preservation orders wherever appropriate, particularly in situations where it is perceived that the trees may be threatened by development.

Key facts

12. On 22 February 2021 Ms B requested a TPO for trees on her property. A planning officer asked the Open Spaces team to consider the request. He sent an email to Ms B explaining that the team would assess the trees which may take a few weeks.
13. Ms B responded saying that the property was now on the market and it was likely that any potential purchaser would want to remove the trees.
14. On 24 February a tree officer told the planning officer he had visited the site and had recommended that a TPO should be made in respect of two of the trees.
15. The following day the planning officer wrote to Ms B explaining that two of the trees met the criteria for protection and the Council would begin the legal process of drawing up a TPO which could take several weeks. The officer advised Ms B to inform the estate agent and her solicitor of this.
16. On 26 April Ms B requested an update. The planning officer said he had forwarded her email to the tree officer and would let her know once he received a response.
17. Ms B heard nothing further and, on 24 May, she sent an email to the Council saying that the property had been sold the previous week and the new landowner was in the process of felling the trees. She said she had assumed the TPO process would have been completed in time for the sale.
18. An officer visited the property and found a single tree remaining that did not meet the criteria for statutory protection. The Council was unable to take any action against the landowner for felling the trees because no TPO had been issued.
19. The following day Ms B contacted the planning officer asking for the matter to be considered by a senior officer. The planning officer agreed.
20. On 4 June Ms B made a Freedom of Information (FOI) request asking what action, if any, the Council had taken in relation to the TPO request after 25 February.
21. On 9 July Ms B sent a further email to the planning officer saying she had not heard from his senior colleague.
22. On 15 July Ms B sent a further email saying she had not received a response to her FOI request and asking why no action had been taken to protect the trees.
23. On 24 August Ms B sent a further email to the planning officer expressing concern that she had not received a response from the Council.
24. The Council wrote to Ms B on 3 September apologising that the TPO was not issued in a timely manner.

Analysis

Delay in implementing TPO’s

25. Ms B requested TPO’s on 22 February 2021. No TPO’s had been issued by the time the trees were felled on 24 May.
26. The Council has explained that the matter was considered a low priority because Ms B owned the land so there was no risk of the trees being felled. However, before the TPO process could be completed, Ms B sold the property and the new owner immediately felled the trees. It says it was not notified that the property had been sold.
27. There are no statutory timescales for implementing a TPO and the Council did not inform Ms B that the process would be finalised by a particular date. It told her it would take ‘several weeks’. It was therefore clear that the TPO was not going to be made within a short timeframe.
28. The Council must prioritise urgent matters and it is a matter for officers’ professional judgement how much priority should be given to each request. I find no fault in the Council treating this request as low priority given that Ms B owned the land and the Council was unaware it had been sold so there was little risk to the trees.
29. Although the Council was aware that the property was on the market, Ms B did not inform it that a prospective purchaser had been found and that the conveyancing process had begun. If she had done so, the Council might have increased the priority of the matter. Ms B could also have contacted the Council before the sale was completed to check the position on the TPO.
30. In these circumstances, I find no fault on the Council’s part.
31. In any event, I do not consider Ms B suffered a significant personal injustice because of the loss of the trees. She does not live in the area and so is not personally affected.

Failure to notify the purchaser that TPO’s were pending

32. As part of the conveyancing process, the purchaser made an official search of the Local Land Charges Register. In response to the search, the Council confirmed there was no TPO in existence on the land.
33. This information was correct as no TPO had been made. The Local Land Charges Register only contains details of a confirmed TPO. It will not record any pending orders. So, there are no grounds to criticise the fact that the officer completing the search did not refer to the pending TPO. The officer would not have been aware of this.

Disruption to the process

34. Ms B says the purchaser approached the Council to disrupt the TPO process. The Council says it is not aware of any approach on this matter apart from the enquiry made by the new owner of the property as to whether a TPO was in existence. I have seen no evidence to suggest otherwise.

Freedom of information request

35. Ms B says the Council failed to respond to her FOI request dated 4 June 2021.
36. The Council accepts it was late in responding to this request. It says that, by the time a response was drafted, Ms B had submitted a formal complaint to the corporate complaints handling team. So, the draft FOI response was not sent. It says it provided an explanation over the telephone and confirmed that no action had been taken beyond agreeing in principle that it would look to protect the trees by issuing a TPO but that the matter had not progressed beyond this pending status.
37. I find the Council was at fault in that it delayed in responding to Ms B’s request for information. She did not receive a formal response to her concerns until 3 September 2021 despite repeatedly chasing the matter. As a result, Ms B was put to time and trouble.

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Agreed action

38. The Council has agreed that, within one month, it will send a written apology to Ms B for the delay in responding to her request for information and the time and trouble she was put to as a result.

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Final decision

39. I do not uphold Ms B’s complaint in relation to the TPO process. However, I find the Council was at fault in that it delayed in responding to her request for information.
40. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman