Summary: We will not investigate Mr X’s complaint about the Council refusal to require his neighbour to plant replacement trees further away from his property. This is because there is not enough evidence of fault and Mr X’s injustice is the result of his neighbour’s actions rather than those of the Council.

The complaint

1. The complainant, Mr X, complains the Council allowed his neighbour to remove protected trees and to plant replacements too close to his property. He is concerned about the impact of the trees and of bird which use the trees, on his property.

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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)

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How I considered this complaint

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

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Background

5. The Council agreed to allow Mr X’s neighbour to remove several protected trees from their property as part of an application for development. As part of the agreement the neighbour was required to plant replacement trees on their land although the position of the replacements was not specified in advance. The Council says it expected the neighbour to discuss with it where to place the replacement trees but they did not.
6. Mr X says the replacement trees are too close to his property and may cause damage. He says the trees block light and he is concerned about the impact of birds using them.
7. The Council has considered whether the positioning of the replacement trees is acceptable in planning and public interest terms and has decided it is. Mr X disagrees with the decision and wants the Council to insist the trees are removed and positioned further away from his property.

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My assessment

8. The Council did not tell the neighbour to plant the replacement trees in a particular location but it has decided the positioning is acceptable. The Council’s decision on this point is a matter of professional judgement and I have seen no grounds for us to criticise it.
9. I must also consider that the planting of trees generally does not require permission from the Council. The Council’s involvement stems from the fact the original trees were protected and Mr X’s neighbour was therefore required to replace them following removal. While the Council could have insisted the neighbour plant replacement trees closer to the location of the originals it could not insist they remove those which have already been planted, which is what Mr X wants. We could not therefore achieve the outcome Mr X wants and we could not say the injustice he claims is the result of the Council’s actions. This is because his concerns about loss of light and possible damage to his property are, in the circumstances of this case, a private civil matter; he may therefore wish to seek legal advice about making a claim against his neighbour.

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Final decision

10. We will not investigate this complaint. This is because there is insufficient evidence of fault by the Council and Mr X’s injustice stems from the actions of his neighbour rather than the Council.

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Investigator's decision on behalf of the Ombudsman