Summary: We will not investigate this complaint about a planning application for housing and a planning application for a Tree Preservation Order (TPO) to be amended because there is no evidence of fault and the planning application for the buildings has not yet been determined.

The complaint

1. Mr X complains that the Council’s consideration of a TPO planning application will affect a decision on a planning application for housing near him.

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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 impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

5. Mr X says that a planning application for removal and amendment of a TPO near him will make it more likely that a planning application for housing will be approved and it will also affect wildlife in the area.
6. The planning application for housing has yet to be determined and so the Ombudsman would not consider that any injustice is caused by this. Mr X can make a complaint to this office if he is unhappy with the Council’s final decision.
7. The TPO planning application was considered by a Planning Committee after an opportunity was given to all those affected to comment or object. Mr X says that one of the members of the Planning Committee was biased.
8. Councils may impose Tree Preservation Orders (TPO) to trees, groups of trees or woodland to protect them. They may control works on trees, such as:
9. Cutting down;
10. Topping;
11. Lopping;
12. Uprooting; and
13. Willful damage and destruction.
14. Once a TPO is in place, works cannot be carried out without written consent by the Council’s planning authority. Once a TPO is made, the Council must allow 28 days to for affected persons and the public to make representations. TPOs can only be confirmed within 6 months from the date the order was made. If the deadline is missed, the Council may issue a new order and begin the process again.
15. It is well established law that, what is said during committee debate should not generally be used as evidence of a decision’s reasons. The courts will only intervene if there is clear evidence that shows a committee was misled. When making this decision, the courts will consider evidence such as:
16. • the documents considered by the committee;
17. • the wording of the decision itself; and
18. • the minutes of the meeting.
19. The reasons the courts have given for taking this approach include the following:
20. • It is often impossible to determine the motives for statements made by committee members, and how, in turn, these statements influence other decision makers.
21. • The role of Council committee members is to act as the public voice in decision-making. The analysis of committee discussion by the courts, might appear like interference in political debate.
22. • While members receive some training on policy and legal matters, we cannot expect them to have relevant qualifications or professional experience, so they may occasionally make statements that are not relevant or legally correct.
23. • If the comments of individual committee members were readily subject to legal challenge, it is unlikely that many committee decisions would stand.
24. The Council says that all objections were properly considered. Whilst I appreciate that Mr X believes a Member of the Planning Committee was unreasonably opposed to the trees the Ombudsman would not conclude that the Council’s decision itself was unsustainable given the views expressed by the courts.

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Final decision

25. We will not investigate Mr X’s complaint because the planning application has not yet been determined for housing and there is no evidence of fault in the way the planning application for the TPO was considered.

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Investigator's decision on behalf of the Ombudsman