Summary: Mr X complained about the Council’s decision to make a Tree Preservation Order permanent even after his objections. We found the Council was at fault for not properly considering Mr X's comments. This caused Mr X frustration and uncertainty about the Council’s decision making. We recommended the Council should apologise and pay Mr X £300 to remedy the injustice its actions caused him.

The complaint

1. Mr X complains that since the Council started a Tree Protection Order (TPO) process in 2023 it has failed to:
1. consider the objections he sent to making the TPO permanent;
2. inspect the property and the trees which was against the government guidance;
3. explain why the Council believed a TPO was necessary now;
4. share a copy of the assessment process with him;
5. explain why it made a TPO due to prospect of development, when no development has taken place on the property;
6. show that TPO would bring a reasonable degree of public benefit;
7. consider that private gardens are not accessible to the public without express permission; and
8. respond to his complaint in line with its complaint’s procedure.
2. Mr X says the TPO in place caused avoidable distress and additional work for the charity that manages the site, as now it will have to ask the Council for permission before it maintains any of the trees on the property.
3. Mr X would like the Council to remove the TPO without a delay.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Tree Preservation Order

8. Councils have powers to make Tree Preservation Orders (TPOs) to protect individual trees, groups of trees or woodland. Once a TPO is in place, generally, work affecting the protected trees needs the council’s prior written consent.
9. The law says councils may make a TPO if they consider it expedient in the interests of amenity to do so. The Government’s Planning Practice Guidance (PPG) recognises there is no legal definition of ‘amenity’. The PPG says councils should use TPOs where removing a tree “would have a significant negative impact on the local environment and its enjoyment by the public”. And councils “should be able to show TPO protection would bring a reasonable degree of public benefit in the present or future”.
10. The PPG says councils should make a site visit before making a TPO. And, in assessing ‘amenity’, they should take account of the extent to which people can see the tree and the tree’s characteristics. Tree characteristics may include their size, form, rarity, historic value, and contribution to the landscape. The PPG also says other factors may be relevant, for example, the tree’s importance to nature conservation.
11. The PPG also covers when it may be ‘expedient’ to make a TPO. It recognises trees do not need to be at immediate risk of felling. The PPG says risk may come from development pressures or changes to property ownership. So, it may be appropriate to make a TPO as a precaution.
12. Once a TPO is made, councils must give people with a legal interest in the affected land, which includes the owner and any occupiers, 28 days to comment. Councils must then consider any objections received to the TPO. Councils have six months to decide whether to confirm the TPO, with or without modifications. The PPG says councils should bear in mind that, as they make and confirm TPOs, they are “both proposer and judge”. So, they should ‘consider how best to demonstrate they decided to confirm a TPO in an even-handed and open manner.’
13. There is no legal right of appeal against a made or confirmed TPO, but its validity may be challenged in the courts on a point of law.

What happened

14. Mr X is a trustee for an organisation that is using the site he made his complaint about.
15. In early July 2023 the Council received a request from a member of the public to place a TPO on the trees within the site Mr X’s organisation operated from. They claimed the trees were in danger of being damaged by developers, as the site was advertised for sale. They also alleged the organisation in charge was trying to remove some trees to maximise the possible development of the site.
16. Within ten days the Council issued a temporary TPO for the site.
17. Following this the Council did not attend the property but carried out a desktop assessment of the site and the trees with the use of aerial photography. Based on the Tree Evaluation Method for Preservation Orders (TEMPO) the Council determined the trees scored 20, which according to the system warrants a TPO.
18. In late July Mr X made an objection to the TPO. We have seen a copy of the letter Mr X sent in stamped by the Council as received in early August.
19. The Council provided us with a copy of a letter it sent to Mr X in December 2023. In the letter the Council said it had considered his objections but it decided to confirm the temporary TPO. It also advised Mr X that he could contact the officer for details about this decision.
20. Mr X said that it did not respond to his objections as he did not get the December 2023 letter, and in early February 2024 he chased the Council to update its website to say the temporary TPO had expired.
21. In mid-February 2024 the Council sent Mr X a latter to inform him that it made the TPO permanent in late November 2023.
22. The following month Mr X complained to the Council. He said that it had not considered his comments before making the TPO permanent, and it had not visited the site to assess the trees. Mr X also said the Council should not be applying blanket TPOs without detailing its reasons.
23. In April, the officer who confirmed the TPO told Mr X that he would be able to attend the site with the view to understand the future management of the site.
24. In late May 2024 the Council responded to Mr X complaint and shared with him the assessment document. It said that it had considered his objections and there was not further need to qualify its considerations.
25. Mr X was unhappy about the Council’s response and in September 2024 he asked the Ombudsman to consider his complaint. He said this was because the Councils kept giving him inaccurate information about the records it held with relation to the TPO and making it permanent. It also had not responded to his concerns he raised in the objection to the temporary TPO.

Analysis

26. Following a report form a member of the public the Council decided to assess the trees at the site Mr X’s organisation operates from to see if it needed to implement a temporary TPO.
27. After completing the TEMPO assessment, the Council decided to issue a temporary TPO.
28. Once Mr X found out there was a temporary TPO in place he made objections.
29. The Council’s records do not clearly show if or when it considered Mr X’s objections. Even if the Council had considered the objections before it made the TPO permanent in November 2023, it had not told Mr X about this until December. The Council has no records to evidence how it considered each objection point Mr X made before making the TPO permanent. The December 2023 letter the Council sent me as evidence of its considerations contains no further information on how the information Mr X presented affected its decision making, or if the objections did not, why. The objections he made included his concerns about the Council’s lack of evidence to:

• show that TPO would bring a reasonable degree of public benefit; and
• consider that private gardens are not accessible to the public without express permission.

30. The PPG says councils should bear in mind that, as it makes and confirms TPOs, it is “both proposer and judge”. So, it should ‘consider how best to demonstrate it decided to confirm a TPO in an even-handed and open manner.’ On balance, I consider the Council has not demonstrated it considered Mr X’s objections in such a manner and this is fault.
31. This caused Mr X frustration and uncertainty about what would have happened had the Council explained to him how it considered his objections.
32. We cannot say, even on balance, whether ot not the Council would made the TPO permanent, had it explained and recorded its considerations of Mr X’s objections. Therefore, we do not consider it appropriate to ask the Council to remove the TPO. However, because we found fault in the decision-making process, we consider the Council should remake its decision.
33. The Council said that it had inspected the trees from the public road and used aerial photographs to complete a desktop assessment. The government guidance says the Council should attend the site to make its assessment. The guidance however does not specify if the visit should be in person. We consider the Council has taken sufficient steps to gather information in order to assess the trees on site and make a temporary TPO decision.
34. Finally, the Council said that it made its decision under its delegated powers, and it was not presented to the Committee for considerations. The Council’s records show that on some occasions an officer referred a TPO decision because of objections they received. This is a discretionary decision each officer must make and document. We recognise the Council can make decisions about TPOs under its delegated powers and so we cannot say the Council was at fault for not referring this matter to its Planning Committee.

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Action

35. Within one month of the date of the final decision statement, the Council will:
• apologise to Mr X for the lack of records showing how it had considered Mr X objections when he first made them in August 2023 and the uncertainty and frustration this has caused him. The Council should refer to our guidance on making an effective apology;
• pay Mr X £300 to remedy the frustration and uncertainty he experienced around what would have happened had the Council openly addressed his objections;
• remake its decision if the TPO should be confirmed, fully considering Mr X’s objections and provide a written record of that decision and the reasons for it to Mr X;
• remind staff the importance of contemporaneous record keeping when making decisions, recording and addressing objections received.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman