Summary: The Ombudsman found fault by the Council on Mr Y’s complaint about it failing to notify him and other residents of proposed works to protected trees on land to the rear of his house. This caused him no injustice because the Council properly considered the application, which included some of the points he would have made had he received notification. His remaining representations were not material considerations it needed to consider.

The complaint

1. Mr Y complains about the Council’s failure to notify him of proposed works to protected trees on land between the rear of his property and other houses; as a result, he lost the opportunity to make, and have his representations considered, and now suffers from loss of privacy due to reduced screening.

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The Ombudsman’s role and powers

2. If we are satisfied with a council’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 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)

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Town and Country Planning (Tree Preservation) (England) Regulations 2012

4. An application for consent for works to trees under a tree preservation order is needed for cutting down, topping, lopping, or uprooting any protected tree. (Section 16 (1))

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How I considered this complaint

5. I considered all the information provided by Mr Y, the notes I made of our telephone conversation, and the Council’s response to my enquiries on this complaint, a copy of which I sent him. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

6. Mr Y is unhappy with the Council’s failure to notify him of an application it received to carry out works on a line of 6 protected trees. The Council considered the application to fell 4 trees, 2 of which were self-seeded, carry out work on another, and reduce the height of another. The trees were subject to tree preservation orders (TPO). A local planning authority can make a TPO to protect specific trees, groups of trees, or woodlands in the interests of amenity.
7. Mr Y argues the Council’s failure meant he lost the opportunity to make representations against the proposal. Had he received notice, his representations would have included: the health of the trees; their distance from his house; the impact the works would have on wildlife and the local environment; the impact on screening between neighbouring properties; the impact on his health.
8. Mr Y is also unhappy with the Council’s response to his point about the Landscape Management Plan (the Plan). The Plan is a guide to the post-contractual management of the approved landscaping for the wider estate for which the Council granted planning consent. Under this Plan, Mr Y argued any damage or instability in major trees needed referring to a local Arboricultural Association registered tree surgeon. The Council reply noted this did not mean such a tree surgeon had to do the works. It also believed the Plan was only relevant for a period of 5 years after completion of the works, which had now passed.
9. The tree officer’s report confirmed the trees provided important screening between houses and a wildlife corridor. While highly visible, the officer noted they were protected for their group value, rather than as individual specimens. The officer noted the Scots Pine the applicant wanted to fell was badly affected by the construction of a retaining wall, but the Council would require its replacement. The trees were generally not in good health and the removal of the self-seeded trees would reduce competition and allow the other trees to survive. The report recommended granting consent.
10. The Council granted consent subject to:

• Carrying out works to the standard BS 3998:2010 (Recommendation for Tree Work);
• Before starting works, the replacement tree would be agreed with the Council: and
• An informative which said before works, checks needed carrying out for the presence of nesting birds and other protected wildlife. Informatives are notes for the applicant that are included in the decision which give guidance on other relevant matters, such as getting other statutory consents or complying with other statutory requirements, for example.

11. In response to his complaint, the Council accepted it failed to send him a notification letter. Not all the properties it needed to notify were notified. The Council apologised to him and said it would arrange additional training for officers to ensure this was not repeated on future cases.
12. In response to my enquiries, the Council confirmed there are no statutory publicity or consultation requirements. Guidance in the National Planning Policy Guidance states it must keep a register of all applications for consent. Where local people might be affected by an application, or where there is likely to be a good deal of public interest, it should consider displaying a site notice or notifying residents, authorities, or groups affected. (paragraph 077)
13. The Council publicises these applications in its weekly list of applications on its website. It also notifies neighbours who adjoin the site by notification letters. Identifying such properties is done manually when the application is registered.
14. The Council explained that because of this case, applications for this site are now required for separate works to individual trees or small areas within the development, rather than the wide-ranging works referred to in this application. This is to help focus the notification process.
15. The Council is satisfied the condition about requiring the planting of a replacement tree was complied with and sent a photograph of the agreed Scots Pine the applicant planted. It did not consider replanting necessary for the 2 removed sycamores as this would likely just cause the same competition problem as before.
16. It also explained the Landscape Management Plan was approved as part of the development of the local wider estate. The Plan states the document is intended to be a guide to the post-contract management of the approved landscaping and will remain effective for 5 years from practical completion. The Council could not confirm when the 5-year period ends or ended. This is because it does not have a notice of practical completion. Nor does it require it as areas under management were kept in private ownership.
17. Works to protected trees are subject to the statutory process which means it considers the Plan is not directly relevant to the application. The Council noted the applicant, who completed the form, is a firm of certified tree surgeons according to its website.

Analysis

18. National Planning Practice Guidance (paragraph 090) states the Council had to consider the following when deciding this application:

• The amenity value of the tree or woodland and its likely impact on the amenity of the area. Amenity value of the trees includes their visibility from a public place, their characteristics (size/form/future potential as amenity, rarity, historic value, and contribution to landscape, for example), and other factors, such as the importance to nature conservation. (paragraph 008)
• Having done so, consider whether the proposal is justified, taking account of the reasons and additional information sent in support;
• Whether any loss or damage is likely to arise if consent is refused or granted subject to conditions;
• Whether any requirements apply to protected species;
• Other material considerations, including development plan policies, where relevant; and
• The appropriate expertise informs its decision.

19. I make the following findings on this complaint:
1. While there is no statutory requirement setting out notification required for works to protected trees, under the Council’s own Statement of Community Involvement for planning applications, it will publish applications on its website, consult statutory consultees, and erect a site notice, or send neighbour notification letters and publish a press advert, if required and appropriate.
2. The Council accepts it intended to send neighbour notification letters to more adjoining properties than it did. This means while it intended to notify Mr Y, it failed to do so. This failure is fault.
3. The Ombudsman must consider whether the fault, in this case the failure to notify Mr Y of the application, caused him an injustice. While Mr Y clearly lost his opportunity to make representations, exploring his injustice includes looking at whether it would have made any difference to the decision on the application had he become aware of it and responded.
4. The Council correctly said when deciding this application, it can only consider arboricultural matters affecting the trees. It can look at whether the proposed works are justified and the impact on their amenity value.
5. I found no fault in the way the Council considered and decided this application. This is because the tree officer’s report noted: the trees Mr Y said were to the rear of his house; their removal would reduce the competition of the adjacent Scots Pines and allow them to thrive; the trees were not in good health; one of the Scots Pines was impaired by the construction of a retaining wall within its root protection area; the removal of the self-seeded sycamore trees would reduce the competition for the Scots Pines and allow them to thrive; the trees are highly visible but were protected for their group value, rather than as individual specimens.
6. As the evidence shows the Council properly considered the proposed works when reaching its decision to give consent, I am not satisfied Mr Y was caused an injustice by the failure to notify him of it. The Council could, and did, consider 2 points he would have made (the health of the trees and the impact on wildlife). The Council included an informative in its decision notice requiring the applicant to check for the presence of nesting birds and other wildlife protected by the Wildlife and Countryside Act 1981.
7. The Council could not have considered the remaining 3 points he said he would have made even if it had received them (the distance he lives from the trees; the screening they provide; the impact on his health). This is because they are not material considerations it had to take in to account when reaching its decision on the application.
8. I also considered the Council’s early apology for the failure to notify Mr Y and the training it arranged for officers to ensure it was not repeated.
9. Nor am I satisfied any representation he might have made about the Local Management Plan was a consideration the Council would have had to take in to account either. This is because it was not a material consideration the Council had to take in to account. I do note the applicant’s website states they have a team of, ‘fully qualified tree surgeons’. In any event, the statutory procedure for getting consent to do works on TPO trees takes priority over the Plan.

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Final decision

20. I found fault causing no injustice on Mr Y’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman