Summary: We will not investigate this complaint about the Council’s decision to refuse the complainant’s application to remove a tree in 2016 which she says was wrong, and which caused her to suffer financial loss. This is because the complaint raises historical issues and it is not the role of the Ombudsman to investigate such matters. In addition, the complainant had a right of appeal to the Planning Inspectorate over the Council’s initial decision which she could reasonably exercise.

The complaint

1. The complainant (Ms X) complains about the Council’s handling of her application in 2016 to remove a large breech tree in the rear of her garden. She says she applied to the Council to carry out work on a protected tree and that this was refused. Ms X says that following investigations, it was found that the tree was not protected which meant the Council’s refusal of her application was flawed.
2. In summary, Ms X says she spent approximately £1,000 pruning the tree in 2021 which she would not have done but for the Council’s fault. As a desired outcome, she wants compensation from the Council.

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The Ombudsman’s role and powers

3. 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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended).
6. The Planning Inspector acts on behalf of the responsible Government minister.

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How I considered this complaint

7. I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. The issues raised by Ms X relates to issues between 2016 when the Council refused her application and 2021 when she incurred pruning costs when she became aware of the problem and engaged with the Council over these. The complaint is therefore historical and it is not the role of the Ombudsman to investigate historical matters.
9. There would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement. Further, we cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in Ms X’s case. It would also be likely to be more difficult to achieve a meaningful remedy in Ms X’s case, given the length of time that has already passed and whether the losses incurred by Ms X were proportionate. For these reasons, I do not consider there is a realistic prospect of reaching a sound, fair, and meaningful decision relating to Ms X’s complaint.
10. In addition, the costs incurred are the result of a decision by the Council that carries a right of appeal to the Planning Inspectorate, acting on of behalf of the relevant Secretary of State. If Mrs X disagreed with the decision (which at some point she plainly had cause to, then it would be reasonable for her have exercised that right of appeal. Why I recognise there are time limits to bring an appeal, it has always been possible for Mrs X to make a late appeal and give reasons for this. The Planning Inspectorate does have discretion to allow late appeals.
11. Separately, our role is to make recommendations to remedy injustice. We do not award compensation and we have no powers to enforce an award of damages. If Mrs X wants to be compensated on account of some legal failure by the Council, it would be reasonable for her to take court action about the matter.

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Final decision

12. We will not investigate this complaint. This is because the restrictions I outline at paragraphs three to five (above) apply.

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Investigator's decision on behalf of the Ombudsman