Summary: The Ombudsman found fault by the Council on Mr D’s complaint about the way it dealt with a neighbour’s application to fell a protected tree. It delayed contacting the neighbour for a survey after receiving legal advice but, this caused no injustice. It also failed to provide the evidence it considered when deciding the neighbour complied with consent conditions and missed its own timescales for dealing with complaints. The agreed action remedies the injustice caused.

The complaint

1. Mr D complains about:
1. the way the Council considered, and decided, an application to fell a protected tree on a site as it failed to require a bat survey; and
2. its failure to ensure the applicant complied with the conditions of consent.
2. As a result, the area lost the amenity of a protected tree which has an unassessed, and unknown impact, on bats and their habitat.

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What I have investigated

3. The paragraph at the end of this statement explains why I have not investigated the following:

• any complaint Mr D has about the way the Council dealt with the initial planning application for consent in 2017;
• his general complaint about how the Council decides planning applications and considers the impact on protected animals; and
• his complaint against a councillor on the planning committee.

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The Ombudsman’s role and powers

4. 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)
5. 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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How I considered this complaint

6. I considered all the information Mr D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I have not sent a full copy as some of the information received is about third parties, or is legal advice, which I consider needs to remain confidential. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.

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What I found

7. Mr D complains about the Council initially granting consent to a planning application in 2017 without requiring the applicant to carry out a bat survey. The site is behind residential gardens with mature trees round its edges.
8. In 2019, the Council received an application for works to a tree on the site subject to a tree preservation order (TPO) because the applicant wanted to remove it as it was diseased. A TPO is an order made by a local planning authority to protect specific trees, groups of trees, or woodlands in the interests of amenity. It prevents the cutting down, topping, or lopping, of a protected tree without its consent. This is why the applicant, who wanted to carry out works to a diseased and/or dying tree, had to ask the Council for consent.
9. Mr D is unhappy with the way the Council considered this application. He is also unhappy with its decision not to take enforcement action when, he argues, the applicant failed to comply with conditions on the consent granted when felling the tree in January 2020.

Complaint a): bat survey

10. Mr D is unhappy it took the Council about 3 months to tell the applicant he needed to do a bat survey by which time the bats started to hibernate. This meant bats were less active and so less visible making any survey results unreliable. He believes the tree officer caused the delay. This is because after the planning committee’s decision the applicant needed to do a survey, the officer asked the legal department for advice about whether it had the power to make this decision on a tree application.
11. In June 2019, the planning committee considered the application and considered whether the applicant needed to do a bat survey. It delayed deciding the application to give the applicant time to do it. In response to my draft decision, the Council pointed out there was no requirement for a bat survey for carrying out the tree works. This is because there is nothing in tree legislation, or any provisions, requiring it. The rules about making such requests for planning applications is different where committees can make this type of request.
12. Following the meeting, the officer contacted the legal department because he considered the Council had no power to make this request. He received the legal advice on 15 July, which is why, the Council explained, the officer did not immediately send a letter to the applicant about the need for the survey. The officer wrote to the applicant about the need for a survey in September shortly before the second meeting.
13. In response to my draft decision, the Council explained while there was a delay, it was partly due to the committee recommending the bat survey. This was the first time the issue of protected species arose on a tree application. It was necessary for the officer to query and investigate the committee’s decision. It accepts it unfortunate the applicant was not asked to provide it until late in the bat season. The applicant did not carry out a bat survey.
14. The officer’s report for the second committee meeting noted:

• the risk of the tree falling and causing personal, or property damage, should take priority over the possible presence of a protected species. The officer recommended granting consent for the tree’s removal and suggested including an ‘informative’ about the protection of bats and wild birds. An informative is an additional comment from a council which draws an applicant’s attention to other relevant matters, such as the need to get other consents. The informative on this decision notice placed the onus on the applicant to inspect the trees for the presence of protected species and stop works if found. It also included reminders about the protected status of bats, wild birds, their nests and eggs, and criminal liability;
• the representations received objecting to the removal of this tree, which included concerns about bats;
• officers inspected the tree on 2 occasions and found ‘die-back’ near the crown and bark loss which revealed a significant presence of fungus. The tree was in decline and there was no treatment for the aggressive fungus. It needed the removal and destruction of the entire infected root and stump;
• major deadwood and concern of the potential damage this could cause to people and property. It considered the reduced visual amenity from the loss of this tree but, noted its visual amenity was restricted by larger and more mature trees nearby;
• the applicant was required to ensure protected species and their nests are not destroyed nor disturbed without consultation; and
• The report made several recommendations including:
1. Replacement within 3 months of the removed tree or, by the end of March 2020;
2. All tree works to meet British Standards 3998: 2010 ‘Tree Work-Recommendations’;
3. All works done by an appropriately insured and competent person; and
4. The applicant to give at least 5 working days’ notice before any works so the extent of works can be arranged with the Council and/or to supervise the works with the contractor on site.

Analysis

15. When a council receives a tree application, what it needs to consider includes: assessing the amenity value of the tree and the likely impact of the proposal on the amenity of the area; whether any requirements apply regarding protected species. (Tree Preservation Orders and trees in conservation areas guidance March 2014 paragraph 090 reference ID 36-090-2010306)
16. I make the following findings on this complaint:
1. At the first committee meeting, the officer states neither a habitat report nor a bat survey was done as this was not required under TPO regulations. The manager, who was also present, confirmed this was correct. I am satisfied the officer gave the committee correct advice. Despite this advice, the committee went on to decide postponing making a decision on the tree application so the applicant could do a bat survey.
2. The officer decided to seek legal advice about the committee’s decision on a tree application. This is because the decision conflicted with the officers’ professional advice. The officer believed the committee only had the power to make such a request on planning applications. This was not a planning application.
3. The officer received the legal department’s advice about 20 days after the committee decision. There is no evidence showing when he first asked for advice but, the Council says it was after the meeting.
4. It was not fault for the officer to get legal advice about the committee’s decision. In response to my draft decision, the Council confirmed the advice clarified the committee could seek a bat survey in certain circumstances. This situation was not one of them as it was an application for tree works, not planning consent.
5. After receiving the advice, the officer asked the applicant in September 2019 to provide a bat survey. The Council explained why the officer did so. The officer tried to carry out the committee’s decision to require a bat survey. It explained the delay in approaching the applicant was because of the officer’s need to get advice from the manager and the legal team about how the request for a bat survey might affect future tree work applications.
6. While I accept the officer’s need to get legal advice, which was received in July, the Council provided no evidence to support its claim about getting further advice from management, for example. I also accept the officer approached the applicant about the need to get a survey because he had to carry out the committee’s decision. I remain satisfied the officer delayed making this request, despite having received the legal advice, 2 months earlier. I consider the delay was fault.
7. The Council correctly pointed out the legal advice the officer received, which was reproduced in the report to the second committee meeting, was not set out in full. What the report failed to include was part of the legal advice confirming the committee could, in certain circumstances, defer consent and request an applicant provide a bat survey. It also said requesting a survey in this case was not appropriate and the Council will have discharged its obligation to consider the protected species. It also noted the officer’s report confirmed the recommendation to grant consent, despite the Council not receiving a bat survey.
8. Applicants, agents, and authorities must consider statutory obligations about protected species. Where there is evidence protected species such as bats may be present and may be affected by the proposed tree work, they ‘should have regard’ to the relevant legislation and guidance. (paragraph 070: Tree Preservation Orders and trees in conservation areas guidance March 2014) I am satisfied the Council had regard to the relevant legislation and in doing so, complied with the legal requirements. This is because it included an informative as part of the decision notice about protected species.
9. Natural England contacted the officer before the second committee meeting saying it received video evidence of bats at the site from a member of the public. The Council did not have a copy of this video. Natural England reminded the officer the Council had a responsibility to ensure protected species are fully considered and ecological surveys are done where appropriate. In its response to my draft decision, the Council explained the advice was directed at planning applications. This is because it referred to trees ‘nearby’, not to an application to fell protected trees because of disease, for example.
10. The standing advice from Natural England also states a council can refuse a planning application, not a tree application, or ask for a survey to be re-done if it does not have enough information to assess the impact on a protected species.
11. On balance, I am not satisfied the officer’s delay asking the applicant for a survey caused avoidable injustice to Mr D. This is because: the legal advice confirmed this was not a situation in which the committee could request one anyway; it is speculative as to whether the applicant would have agreed to do one; had the applicant done one, it is speculation as to what it may have found.

Complaint b): enforcement

17. Mr D is unhappy the Council failed to take enforcement action against the applicant who did not comply with consent conditions. He is unhappy material from the felled and diseased tree was not removed promptly from the site, for example.
18. In response to my enquiries, the Council confirmed:

• On 6 January 2020, the applicant told the Council of his intention to fell the tree the week starting 13 January. Works to fell the tree were started on 15 January. The Council failed to provide evidence to support what it said;
• An officer visited the site on 10 November to see if it complied with the decision notice and to assess a new planning application it received from the applicant; and
• The applicant complied with all conditions except the one requiring the planting of a replacement tree. It is still considering a new planning application which is for the residential development of the site including the area where the replacement tree needs planting.

Analysis

19. A council can grant consent to a tree application subject to conditions. A condition may regulate the standard of the authorised work, for example. A condition should only be imposed where there is a definite need for it and it needs wording precisely, so the applicant is left in no doubt about is interpretation and the council is satisfied it can enforce it. (paragraph 096 reference ID 36-096-20140306: Tree Preservation Orders and trees in conservation areas guidance March 2014)
20. A council can also attach advice and information to its decision notice (an informative) which may include how to protect wildlife and biodiversity, for example. (paragraph 100 reference ID 36-100-20140306: Tree Preservation Orders and trees in conservation areas guidance March 2014)
21. I make the following findings on this complaint:
1. The Council failed to provide the evidence it considered when it decided the applicant complied with all but one of the conditions which I consider in more detail below.
2. A condition required the applicant to have all the work on the tree done according to the British Standard 3998: 2010 Tree Work. This includes: safety and management of the site to reduce risks to people by tools, equipment, and the tree itself; biosecurity to prevent pests and diseases transferring from one tree to another; the timing of the works; protection of wildlife and its habitat; management of the trees rooting environment. It goes on to state trees and their surroundings should be assessed for the presence of protected species.
3. Mr D complains about the failure to promptly remove the remains of the diseased tree from the site after its felling.
4. In response to my enquiries, the Council said as far as the officer was aware, this condition had been complied with. I note Mr D complained to the Council 2 weeks after the felling of the tree about material remaining on site. He queried how the officer had satisfied himself about compliance with this condition.
5. The Council imposed the condition but provided no evidence to support its claim of the applicant complying with it. This failure is fault
6. The Council failed to provide evidence in support of its claim about the notice the applicant gave about starting the works. This is fault.
7. The Council imposed a condition about ensuring works done were done by a person appropriately insured and competent for such work. The Council explained it is a standard condition aimed at promoting good workmanship but, is more relevant to pruning works which have the potential to impact on the visual amenity and character of the tree. It helps protects applicants from unscrupulous tree surgeons and ensures pruning is done to a satisfactory standard of work.
8. The Council imposed the condition but provided no evidence to support its claim of the applicant complying with it. This failure is fault
9. The Council accepted the applicant failed to comply with the condition requiring the planting of a replacement tree. Its refusal to take enforcement action was not fault. The applicant had to replace the tree by March. In July, it received an application to develop this site. Even though the Council provided no evidence about what it was doing between April and July, I am not satisfied any fault would have caused avoidable injustice. This is because the receipt of the application would prevent it from realistically taking action until it decided it. Had it acted before then, the applicant could have defended it by pointing out he had applied for consent to develop the site, including the location of the removed tree.
22. I also considered how the Council dealt with Mr D’s formal complaint as he is unhappy with the delay in dealing with it. Under its complaints procedure, it will acknowledge a complaint within 5 working days of receipt. A full response is sent within 15 working days of the date of acknowledgement. If the complainant is still unhappy, they can complain to us.
23. I note Mr D complained to the Council on 31 January 2020. The Council acknowledged it 12 working days later. This is outside of its complaints procedure target.
24. The acknowledgement told him it would send a response to his complaint by 10 March. It sent him its response on 20 April, which is 44 working days from the date of acknowledgement which is also outside the time scale under its complaints procedure. The response told him to complain to us if he remained unhappy with its response.
25. I consider these failures amount to fault which caused him avoidable injustice (distress in the form of frustration).

Agreed action

26. I considered our guidance on remedies.
27. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. To send Mr D a written apology for its failure to provide evidence it considered when deciding all but one of the conditions were complied with and for the failure to follow the timescales set out in its complaints procedure;
2. Ensure officers are reminded of the need to have evidence justifying their decisions of compliance with conditions; and
3. Establish why the delays with the complaints procedure happened and take steps to ensure they are not repeated in the future.

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Final decision

28. The Ombudsman made the following findings on Mr D’s complaint against the Council:

• Complaint a): fault causing no injustice; and
• Complaint b): fault causing injustice.

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Parts of the complaint that I did not investigate

29. I have not investigated the following complaints of Mr D:
1. Any complaint he has about the way the Council dealt with the initial planning application for consent granted in 2017. This is because we have already considered and determined a previous complaint about it from another resident. In the final decision on that complaint, we dealt with reference to bats and the planning officer’s decision that a bat survey was not needed.
2. Any complaint he has about the way the Council decides planning applications and considers the impact on protected animals. This is because we do not trawl through historical cases not subject to a complaint and ‘fish’ for fault. We are restricted by legal constraints placed on us by parliament under the Local Government Act 1974. These include limits on our jurisdiction, for example, about when a complaint is received.
3. The way the Council dealt with his complaint about a councillor on the planning committee because this is currently under investigation by the Council.

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Investigator's decision on behalf of the Ombudsman