Summary: Mr X complained the Council wrongly confirmed a Tree Preservation Order. He said the Council did not follow the correct process to make its decision. We found there was no evidence of fault in how the Council made its decision.

The complaint

1. Mr X complained the Council did not follow the correct process when deciding to confirm a Tree Preservation Order (TPO). He complained the tree was dangerous and, due to where it was, he was at risk of injury from it.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. 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(1), as amended)

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What I have and have not investigated

8. Mr X complained the Council applied the wrong legal test when deciding whether to grant a TPO. He said the Council considered the risk of death from the tree, instead of the correct legal test, which is the risk of serious harm. The validity of a TPO can be challenged in the High Court on a point of law. Applying the wrong legal test is a point of law and so it would be reasonable for Mr X to take this point to court. Therefore, I have not investigated whether the Council used the wrong legal test when deciding to confirm the TPO.
9. However, Mr X also complained of other flaws in the Council’s decision-making process which are not points of law. I have investigated these parts of Mr X’s complaint and have set them out below.
10. Mr X provided us with evidence which he said raised concerns about systemic bias by the Council towards making TPOs. As a publicly funded body we must be careful how we use our resources and we will not normally investigate a complaint where the complainant is using their enquiry as a way of raising a wider community campaign about something of general concern. I have not seen any evidence to suggest that others have suffered an injustice because of the Council making TPOs, therefore it is not proportionate for us to investigate this matter.
11. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint. In this decision, I have not referred to every element of information provided by Mr X and the Council, but I have not ignored its significance.

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How I considered this complaint

12. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
13. Mr X and the 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

Relevant law and guidance

Tree Preservation Orders

14. Councils may impose Tree Preservation Orders (TPO) to trees to protect them. They may control works on trees, such as cutting or removing them. Once a TPO is in place, works cannot be carried out without written consent from the council.
15. Before making a TPO, a local planning authority officer should visit the site of the tree in question and consider whether a TPO is justified. (Tree Preservation Orders and trees in conservation areas guidance, paragraph 21)
16. Once a TPO is made, the council must allow 28 days for affected persons and the public to make representations before it decides if it will confirm the TPO. Before deciding whether to confirm a TPO, the council must consider all properly made objections and representations. (The Town and Country Planning (Tree Preservation)(England) Regulations 2012, section 5 and 7)
17. Councils should consider how best to show they have made their decisions in an even-handed and open manner. (Tree Preservation Orders and trees in conservation areas guidance, paragraph 37)

What happened

18. The Council made a TPO for a tree near Mr X’s property and invited members of the public to comment before it would decide if it would confirm the TPO. Mr X and others objected the TPO.
19. The Council then held a panel hearing to discuss the TPO. A Council officer prepared a summary report for the panel, which included information about the tree and a summary of the public’s comments about the TPO. Mr X also attended and spoke at the hearing.
20. Following the panel meeting, the Council decided to confirm the TPO and told Mr X, and other affected persons, of its decision.
21. Mr X complained about the Council’s decision. He said the panel members likely had not read all the relevant documents before the hearing, such as the letters of objection, because they seemed unaware of the contents of these letters. He also said the Council’s summary report, which the panel relied on to make its decision, was biased and inaccurate.
22. The Council responded to Mr X’s complaint. It said it had recently changed its TPO process and, instead of having all the case documents printed and provided to them at the hearing, the panel members would only be given the case officer’s summary report on the day. They would need to read the other case documents online before the hearing. The Council said all the panel members had attended training on the new process and so knew to read the case documents before the hearing. It did not uphold his complaint. However, it agreed it would remind panel members to view public comments on the Council’s planning portal before appeal hearings in future, because of Mr X’s complaint.
23. Mr X wrote to all the panel members and asked them to confirm if they had read the case documents. Two of the panel members replied to say they had read the information needed before the hearing. The remaining panel member did not confirm if they had read the documents either way, but said they were aware of all the relevant information before the hearing.
24. Mr X then made a Freedom of Information (FOI) request to the Council about TPO appeals and found that between 2021 and 2024 the Council received 17 objections to TPOs, but still decided to make a TPO in all those cases.
25. Mr X then complained to us about the Council’s decision-making process. He said the FOI information suggested a possible wider issue of the Council failing to properly consider TPO appeals and showing bias towards making TPOs and not upholding appeals. He said this could result in the Council wrongly making TPOs, despite valid objections to them.

Analysis

Information considered by panel members

26. Mr X complained it appeared the panel members had not read the required information before the panel hearing. He said they asked questions during the hearing which showed they were unaware of the contents of the public objections and comments.
27. The Council told Mr X all panel members had attended training on the new TPO process and so were aware of the need to read the case documents online before the hearing. The Council’s public records confirm all but one of the panel members attended the relevant training session and, in its complaint response, the Council told Mr X the remaining panel member attended a training session on a different date.
28. Mr X then asked all the panel members to confirm if they had accessed and read the case documents before the panel hearing. They all responded to say they had either read the case documents, or they said they were aware of the key information before the hearing. The panel members said any questions they asked during the hearing were only to clarify their understanding of the case. None of the panel members responded to say they had not read the case documents before the hearing.
29. In this part of the complaint, the issues relate to the Council’s word against Mr X’s. Mr X feels the panel members likely did not read all the case documents before the hearing, but the panel members say they did. The lack of independent evidence means we cannot make a finding, even on balance, whether the panel members likely read the case documents online before the hearing.
30. Therefore, we cannot make a finding on this part of Mr X’s complaint.

Description of the tree

31. Mr X complained the Council wrongly described the tree as ‘veteran’, which made it more likely it would confirm the TPO on it.
32. The panel hearing minutes show Mr X raised this concern at the hearing and gave his views why the tree was not veteran. The Council then explained why the tree had veteran features. It also added that even if the tree was not veteran, it would still meet the criteria for a TPO.
33. There is no evidence of fault by the Council in how it assessed the tree. The case documents show the Council used a widely recognised assessment method to assess if the tree was veteran and should be subject to a TPO and gave reasons for its decision.
34. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong. Although Mr X disagrees with the Council’s assessment of the tree, there is no evidence of fault in how the Council made its decision and therefore it is not for the Ombudsman to question the Council’s professional judgement.
35. In any event, the Council gave Mr X the opportunity to provide his objections at the hearing and so the panel were aware of why he felt the tree was not veteran. The Council’s process allowed for members of the public to object to the Council’s assessment to ensure the panel had access to a balanced view.

The case officer’s report

36. Mr X complained the case officer’s report was biased towards the making of a TPO. He said the report did not include important pictures and information from the letters of objection.
37. TPO guidance states that local planning officers should give their view on whether a TPO is justified. Therefore, there was no fault in the case officer saying they felt, based on the facts of the case, the Council should confirm the TPO, because the case officer is expected to give their professional opinion on this point.
38. With regards to the public objections, the courts have made it clear that case officer reports do not need to be perfect and do not merit challenge unless their overall effect is to significantly mislead the decision maker on the key, material issues.
39. I have reviewed the case officer’s report and the public letters of objection. The case officer’s report summarised the public comments and grouped them by key themes. There was some confidential information which could not be included in the report because it would be available online. However, on balance, there were no omissions or errors in the report that likely would have had a bearing on the Council’s decision.
40. There is no fault in the case officer’s report. It summarised all the public’s comments and it covered the key, material issues and therefore the panel was aware of all the relevant information when making its decision.

The Council’s decision making

41. Mr X complained there was a lack of transparency in the Council’s decision-making because members of the public had to leave the hearing while the panel discussed its decision. The public were then invited back to the meeting once the panel was ready to announce its decision.
42. Guidance says because councils both propose and decide TPOs, they should make sure they can show balanced decision-making.
43. The evidence shows the Council followed the legal process to confirm the TPO and there were opportunities throughout for members of the public to comment on the TPO, such as writing letters of objection, or speaking at the panel hearing.
44. The case officer’s report and the case documents are publicly available online. The panel hearing minutes are also available online and show what was discussed during the hearing and explains why the panel decided to confirm the TPO.
45. The Council’s decision-making is publicly available and transparent. It explains the information the Council considered and gives reasons for its decision. Therefore, there is no evidence of fault by the Council in how it showed it made its decision to confirm the TPO.

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Decision

46. I find no fault.

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Investigator's decision on behalf of the Ombudsman