Summary: X complained about the Council’s decision not to take action when trees were felled on land near X’s home. We did not find fault in relation to this incident, but we did find the Council was at fault for previously treating a tree as if it was protected under a Tree Preservation Order, when it was not. We made recommendations to the Council, which it has agreed to carry out.

The complaint

1. The person that complained to us will be referred to as X.
2. X complained the Council failed to protect trees subject to a Tree Preservation Order (TPO) which were felled.

Back to top

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 significant injustice, or that could cause injustice to others in the future 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)

Back to top

How I considered this complaint

5. I read the complaint and discussed it with X. I read the Council’s response to the complaint and considered documents from its planning files, including enforcement records relating to tree protection.
6. I gave the Council and X an opportunity to comment on a draft of this decision and took account of the comments I received.

Back to top

What I found

Tree Preservation Orders

7. Councils may impose a Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them for their public amenity value. They may control works on trees, such as:
• cutting down;
• topping;
• lopping;
• uprooting; and
• wilful damage and destruction.
8. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.

Planning enforcement powers

9. Councils have a range of options for formal planning enforcement action available to them. However, as planning enforcement action is discretionary, councils may decide to take informal action or not to act at all. Informal action might include negotiating improvements, seeking an assurance or undertaking, or requesting submission of a planning application so they can formally consider the issues.

What happened

10. A few years ago, X’s neighbour applied for permission to carry out work on a tree. The Council treated the application as if it related to a tree protected by a TPO and granted permission to carry out works subject to conditions.
11. More recently, the Council’s planning enforcement officer visited the site in response to a query related to trees on the neighbour’s land. The enforcement officer visited the site and took photos of work that was underway. The enforcement officer checked the TPO map and consulted the Council’s tree officer, who confirmed that none of the trees were protected by TPO.
12. The Council decided no enforcement action could be taken because there was no breach of tree protection controls. The planning enforcement officer sent me the maps that were considered to reach this judgement.

My findings

13. Before the Council made its decision that no enforcement action could be taken in relation to the removal of trees on X’s neighbour’s land, it considered its powers, evidence from its records and the opinion of the tree officer. The Council followed the decision-making process we would expect and so I find no fault in how this decision was made.
14. However, the Council’s records show that in the past it did use its powers in relation to a tree that was not protected by TPO. This is fault, and while it does not cause a significant injustice in this instance, the Council should take steps to ensure the same fault does not happen again. The fault raised X’s expectations that there would be enforcement action, and it caused confusion and frustration, when the Council decided not to act.
15. In response to an earlier draft of this decision, the Council pointed out that in the stage 1 response to X’s complaint it had already accepted its error and apologised for the confusion it caused. This was a satisfactory remedy for the impact the fault had on X.
16. I also recommended the Council carry out a review of its practices and procedures to avoid the fault happening again, and it has agreed to do this but asked for more time to demonstrate it has implemented any review findings. I agreed to this request.

Back to top

Agreed action

17. To remedy the injustice and possible recurrence of the fault I have found, the Council will:
1. Carry out a review of its practice and procedure to find any changes necessary to avoid the fault I found happening again. This will happen within 3 months from the date of our final decision.
2. Provide evidence to show it has implemented any review findings. This will happen within 6 months from the date of our final decision.
18. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

19. I found fault that caused an injustice and might happen again. I have completed my investigation because the Council accepted my recommendations.

Back to top

Investigator's decision on behalf of the Ombudsman