This fact sheet is aimed primarily at people who have concerns that a council has failed to deal properly with a protected tree and may be considering making a complaint to the Ombudsman.
The counciI did not deal properly with a protected tree near my home. Can the Ombudsman help me?
Yes, in some circumstances. Councils have powers to make tree preservation orders (TPOs) for trees or woodlands that make a significant contribution to the amenity of an area. TPOs in general make it an offence to cut down, uproot, top, lop, root cut, or wilfully damage or destroy a protected tree without a council's permission.
If you believe the council has been at fault in the way it has dealt with matters relating to trees, you can complain to us and we may investigate. We may also investigate when fault leads to the loss or damage to trees, if it is in the public interest to do so.
We will not uphold your complaint if the council followed the proper procedures, law and guidance; if it correctly considered an application from the tree’s owner to cut it down or carry out works, or if the council properly investigated whether unauthorised work was planned or taking place. We cannot question the merits of decisions that have been properly made.
If you applied for consent for works to a protected tree and you disagree with the council’s decision, or the council has taken enforcement action against you for unauthorised works, we will not normally look into your complaint. This is because you have the right to appeal to the Secretary of State. Appeals are decided by the Planning Inspectorate.
How do I complain?
If you want to object to a proposed TPO or an application for a tree preservation consent, you should write to the council as soon as possible saying why you think the TPO or application should not be approved.
Before you come to us, you should normally complain to the council first. Councils often have more than one stage in their complaints procedure and you will usually have to complete all stages before we will look at your complaint.
Then, if you are unhappy with the outcome, or the council is taking too long to look into the matter – we think 12 weeks is reasonable – you can complain to us.
You should normally make your complaint to us within 12 months of realising that the council has done something wrong.
If you can consider my complaint what will the Ombudsman look for?
First, we must consider whether your complaint is one we can investigate. If it is, we must then consider whether we should do so or whether there is an alternative which would be more appropriate.
We look at whether fault by the council has caused you significant injustice. This might be, for example, a significant loss of your outlook or privacy or significant harm for the wider public.
We check whether the council has met its legal duties and followed its procedures. We may consider the evidence of technical assessments and what advice has been given. We may also look at reports and case files to see how the council made and recorded its decision.
Some faults we might find are that the council:
- did not inform a landowner that a TPO had been made for trees on their land
- failed to act promptly when unauthorised works to a tree took place
- failed to prevent or follow up damage to protected trees during construction works
- gave misleading advice on whether a tree was protected or what work could be done. (But we will not normally look into such a complaint made by an applicant who has or had appeal rights)
- did not consult with other bodies such as the Forestry Commission where required, or
- failed to keep a TPO up to date.
What happens if the Ombudsman finds that the council was at fault?
We will consider whether there was a significant injustice as a result and, if so, seek to remedy that injustice.
In some cases we may ask the council to pay for new planting or screening. If this is not practical, we may recommend the council makes a financial payment.
We may ask the council to make changes it its procedures so that the same problem does not happen again.
Examples of some complaints we have considered
We found the council had taken prompt action when notified of the felling. By then, most of the protected trees had been lost. A number were clearly dead or dying, but others had apparently been healthy. The council considered whether to prosecute but, while the complainants disagreed with its decision, we were satisfied the council considered this issue in a proper manner. There were delays in dealing with the complainants’ subsequent complaints, but the council apologised for this fault and we were satisfied that this was sufficient to remedy the injustice caused. (Typical example)
Other sources of information
For advice on planning go to www.planningportal.co.uk or www.gov.uk/government/topics/planning-and-building
Government guidance on tree preservation can be found at https://www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.