Summary: We will not investigate Mr X’s complaint about the Council’s handling of a planning matter concerning protected trees. This is because the complaint is late and there is not enough evidence of fault.

The complaint

1. The complainant, Mr X, complains the Council failed to require a developer to plant replacement trees in the same location they were removed from. He says there is no written agreement between the Council and the developer for the replanting and this has allowed the Council to avoid public scrutiny and has prevented it from being held to account.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Mr X has been aware of the Council allowed the developer to plant replacement trees in different locations to where the original trees were removed from for at least three years. His complaint is therefore late. While Mr X says the matter has arisen again recently as he has found out that there is no formal written agreement between the Council and the developer this does not bring the complaint into time or provide good reasons to exercise our discretion to investigate it now.
6. However, even if we were to investigate it is unlikely we would find fault by the Council. Mr X believes the Council’s agreement to allow the developer to plant replacement trees in a different location goes against Section 206 of the Town and Country Planning Act 1990 and that it should have taken formal enforcement action against them. But the legislation does not require the Council to ensure replacement trees are planted in the same place and places no duty on the Council to prosecute anyone who removes a protected tree. Instead it specifically allows for the possibility of non-compliance with the general requirements for replacement trees and leaves the possibility of prosecution at the Council’s discretion. We could not therefore say the Council’s agreement contradicts the requirements of the Act or that the Council’s approach to the issue is clearly flawed.

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Final decision

7. We will not investigate this complaint. This is because it is late and there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman