Summary: Mrs X complained the Council failed to follow government guidance when deciding to issue a Tree Preservation Order. The Council was not at fault.

The complaint

1. Mrs X complained the Council wrongly issued a Tree Preservation Order. Mrs X said:
• The Council failed to follow government guidelines;
• The trees do not provide public benefit or amenity value;
• The Council officer did not view the trees from her property; and
• She will be responsible for maintaining trees she does not own.

Mrs X said the decision caused her distress and means she will be put to avoidable time and trouble maintaining the trees in future.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I read the complaint and discussed it with Mrs X.
5. I read the Council’s response to the complaint and considered documents from its planning files, including the case officer’s report and I viewed a recording of the planning committee.
6. I also considered the Council’s policies, and relevant law and guidance, as set out below.
7. Mrs X and the Council had the opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

Tree Preservation Orders

8. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
• Cutting down;
• Topping;
• Lopping;
• Uprooting; and
• Wilful damage and destruction.
9. Once a TPO is in place, works cannot be undertaken without written consent by the Council’s planning authority.
10. The law on TPOs is in Part VIII of the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. This says a council can make a TPO if this appears to them to be “expedient in the interests of amenity”. “Amenity” is not defined in law, so the council needs to exercise judgement. Guidance on Gov.UK says it may be expedient to make a TPO if the council believes “there is a risk of trees being felled, pruned or damaged in ways which would have a significant impact on the amenity in an area”. The council may use the Tree Evaluation Method for Preservation Orders (TEMPO) to assist it to decide if a TPO is needed. A TEMPO score above 16 would merit a TPO; a score below 11 does not merit a TPO.
11. The Council tree policy is in adopted Local Plan Policy ENV06 (Trees Hedgerows and Development). The supporting text sets out what a TPO is and what is prohibited without prior written consent.

What happened

12. Mrs X has two closely planted trees (T1) on the border of her property. The trees are owned by her neighbour Mr Y.
13. In early November 2021 the Council received an email from Mr Y with concerns Mrs X was going to prune back branches of T1 which overhang her garden.
14. In mid-November 2021 a Council officer carried out a site visit and saw other trees overhanging Mrs X’s garden had been pruned back ‘severely’. The officer also carried out a Tree Evaluation Method for Preservation Orders (TEMPO) assessment. The TEMPO score was 17. A score of 16 or above warrants a Tree Preservation Order (TPO).
15. In late November 2021 the Council served a TPO on T1.
16. In early December 2021 Mrs X emailed the Council, objecting to the TPO.
17. In mid-February 2022 Planning Committee discussed the TPO on T1. The officer wrote a report which included:
• Key issues for the objection;
• A description of the location;
• Relevant history;
• Relevant planning policy and guidance considerations Policy ENV06 (Trees, Hedges and Development) and Section 15 of National Planning Policy Framework (NPPF);
• Consultations with the Parish Council and Ward Representatives;
• Representations received including one from Mrs X;
• It concluded the Council would have some control over works to T1 and would approve some pruning to reduce branches overhanging but not to the boundary line and there was no evidence T1 was unsafe; and
• The officer’s recommendation was to confirm the TPO.
18. Mrs X spoke at planning committee and said:
• The trees were not suitable to be growing on a boundary due to their size. They were causing a nuisance, and restricting the use of the garden;
• The Council had not visited her property when deciding a TPO was needed;
• TPO’s should only be awarded for amenity value, if it is an exceptional species or for local benefit and none of these apply; and
• She would have to maintain T1 if the TPO was granted, at an estimated cost of £10,000 over 20 years.
19. At planning committee Members of the committee asked Council Officers several questions about:
• who would maintain T1 if a TPO was granted;
• the number of other TPO’s in the vicinity;
• the amenity value of T1; and
• the extent to which T1 could be pruned
20. Officer responses included:
• That responsibility for maintaining T1 was not affected by the TPO;
• Mrs X could apply to the Council to prune the overhanging branches;
• In their professional opinion, although T1 is not prominent it does have some amenity value and is visible from a road; and
• T1 could be pruned by 2-3 metres.
21. Planning committee confirmed a TPO on T1.
22. In late February 2022 Mrs X complained to the Council. She said:
• The Council did not properly follow the government guidelines when deciding a TPO was needed;
• The chair of planning committee ignored her email;
• The TPO caused her emotional distress because it meant she could not use her garden for enjoyment and pleasure;
• When she spoke at planning committee the photographs accompanying her presentation had been out of sequence which meant her explanation was ‘pointless’. She considered officers did that intentionally;
• The officer had not properly examined the site and did not know the amenity value of the tree, which was based on officer opinion alone;
• Government guidance states a TPO cannot be served on amenity value alone and the Council should show protection would be for public benefit which was not shown.
• A member question about maintenance had not been answered;
23. In late April 2022 the Council responded to Mrs X’s complaint. It said:
• It was sorry it had not presented the photographs in the way Mrs X envisaged. This was due to human error and the Members did see all the photographs;
• The committee report explained the Council Tree Officer visited the application site and reviewed the tree. officers need to use professional judgement and advise Members accordingly;
• TEMPO was developed for Local Authorities as a direct response to doubt over tree features to merit a TPO. It sets out relevant factors to be considered, including any threats to the tree. The possibility the tree could be pruned to the boundary was seen as a threat. A TEMPO score of 16+ would warrant a TPO;
• It disagreed with Mrs X’s interpretation of government guidance and said it would consider works to the tree from Mrs X’s side but a TPO application would be required first; and
• It followed the correct procedure in reaching the TPO decision.
24. In mid-May 2022 Mrs X contacted the Council to arrange a visit following agreement after Planning Committee. The Council responded to Mrs X the same day and told Mrs X it could not visit because of the ongoing complaint. The same day Mrs X escalated the matter to stage 2.
25. In early-June 2022 the Council sent Mrs X its final response, it said:
• TEMPO score sheets identified the need to serve a TPO on the tree;
• The TEMPO score sheet recognised the limited views of the tree and scored accordingly;
• Council officers are fully qualified;
• The owner must maintain the tree, unless risk to health and safety; and
• A TPO does not prevent work on trees but would require a formal process to be followed.
26. Mrs X remained unhappy and complained to us.

My findings

27. In response to Mr Y’s concern that Mrs X was going to prune the overhanging branches of T1, the Council carried out a site visit. It noted that other trees in Mrs X’s garden were severely pruned. It assessed T1 using the TEMPO assessment, which produced a score of 17 and warranted a TPO. In response to Mrs X’s objection, the matter was considered by its Planning Committee. The officer’s report demonstrated the Council had appropriately considered Government guidance and its own policies. The Council followed the correct process and I have not found fault in the way it made its decision.

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Final decision

28. I have completed my investigation finding no fault by the Council.

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Investigator's decision on behalf of the Ombudsman