Summary: Mr X complained the Council failed to take action when a neighbour removed a hedge and trees in a conservation area affecting his privacy. There is no fault in failing to consider a Tree Preservation Order as the Council was not aware the trees had been removed. However, the Council delayed in starting an enforcement investigation and it should apologise for this.

The complaint

1. Mr X complains the Council failed to take action when a neighbour removed a hedge and trees in a conservation area.
2. He says the fence which replaced the trees does not provide the same level of privacy.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and invited their comments.

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What I found

6. In June 2019 the Council granted planning permission for the demolition and construction of a new dwelling on the site next door to Mr X’s property. It is my understanding that construction work began and it then became evident the dwelling could not be constructed in accordance with the approved plans.
7. In April 2021 the neighbour submitted an application for a variation of condition to allow an increase in the pitch of the roof so the dwelling could be constructed with a thatched roof. It also included changes to the rear extension element of the dwelling. This would be covered by tiles rather than thatch.
8. Mr X submitted his objections to the application and they were reported in the Council’s delegated decision report. Consideration was given to the impact on his privacy and it was consider the new proposals would not result in an unacceptable impact. The application was approved on 15 June and included conditions requiring the submission of a planting scheme for approval.
9. In May, prior to approval of the variation application, Mr X contacted the Council. The Council says Mr X did not mention the removal of trees during a telephone conversation. Mr X then made a formal complaint on 20 June. His complaint concerned the Council’s actions in respect of the variation application. When he escalated the complaint to stage two of the Council’s complaints’ procedure, he mentioned the removal of the mature trees and hedge. Mr X also provided photographs.
10. The Council says that it should have told Mr X to report the unauthorised removal of the hedge and trees to its Planning Enforcement Team and it apologies for this oversight. The Council explained to Mr X that its complaint procedure could not look at the planning decision made because there are alternative legal routes for challenge. The Council says that when the Ombudsman notified the Council of Mr X’s complaint, it opened an enforcement case.
11. The neighbour also submitted details of the landscaping scheme for approval by the Council. This includes the planting of pleached hornbeams along the boundary between the development site and Mr X’s property. Pleaching is a method of training trees to produce a hedge or screen by interlacing the branches along a supporting framework. It is my understanding the trees will be planted along the line of the fence with the intention of providing a hedge above the fence line to provide screening between Mr X’s property and the new dwelling.
12. The Council’s enforcement officer was consulted on the discharge on conditions in respect of the planting scheme. The view taken was that the planting of the pleached hornbeams along the boundary would provide be a satisfactory alternative to the screening previously in place. A mature plum tree that was removed will also be replaced. The Council closed the enforcement case.

Analysis

13. Mr X complains the Council failed to take action when a neighbour removed a hedge and trees in a conservation area. The neighbour should have notified the Council of the intention to remove and/or do work on the trees. This would have given the Council six weeks to consider whether the trees and hedge were of significant merit to be the subject of a tree preservation order (TPO).
14. In this case, the Council was not notified and was not aware of the situation before the trees were removed. It says it does not have adequate information about the removed trees to take a view on whether a TPO would have been sought. As the Council was not aware of the situation until after the trees were removed, I find no fault regarding the failure to consider and/or make a TPO.
15. I note the Council did not start an enforcement investigation until notified by the Ombudsman that Mr X had submitted a complaint. However the Council was aware of the issue when Mr X made his stage two complaint. While I note the Council has apologised for not taking action at that time, it has apologised for failing to tell Mr X to make an enforcement complaint. I am not persuaded it was Mr X’s responsibility to make another contact with the Council. The Council should have passed on the information to the enforcement team at the time the stage two complaint was made. This may have resolved the situation and Mr X may not have been put to the trouble of having to raise the issue with the Ombudsman. The failure to start an enforcement investigation when first notified by Mr X of the removal of trees is fault.
16. The Council has now had an opportunity to consider the landscaping scheme submitted by the developer. This includes details of the size and species of pleached trees that will be planted along the boundary with Mr X’s property. The Council is satisfied the proposed planting will provide an adequate level of screening between the development site and Mr X’s property. As a result, it closed the enforcement investigation.
17. I am satisfied the Council has properly considered all the information provided regarding the removal of the trees and hedge and then used its professional judgement to decide no further action will be taken. This is a decision it is entitled to take and I will not criticise it.

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Agreed action

18. To remedy the injustice caused to Mr X as a result of the fault identified in this case the Council, within one month of my final decision, will take the following action;

• Apologise to Mr X for the failure to pass his concerns to its enforcement team earlier than it actually did; and
• Remind officers dealing with complaints that the Council is one organisation and so should pass information itself to relevant departments rather than expect the complainant to do this.

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Final decision

19. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman