The Ombudsman's final decision
Summary: Ms X complained about the Council’s decision to approve works to trees in a conservation area that she said were used by bats. We found the Council at fault in failing both to consult on the application or to make a written record of its decision reasons. These faults were unlikely to have affected the Council’s decision to not make a tree preservation order. The Council agreed to apologise to Ms X for the distress and frustration caused by the lack of information about its decision making. The Council also agreed to change its procedures to ensure in future it records the reasons for its decisions.
The complaint
Ms X said the Council did not consult with local people and failed to meet its legal duty about conserving biodiversity when dealing with proposed tree works near her home. The affected trees included bat habitat and Ms X said she had seen no bats since the works took place, which caused her much distress.
Ms X wanted the Council to set up procedures to ensure compliance with its biodiversity duty, including mapping protected habitats and species, engaging with local people and conserving bats when making planning decisions.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I: considered Ms X’s written complaint and supporting papers; talked to Ms X about the complaint; asked for considered the Council’s comments and supporting papers about the complaint; shared Council information with Ms X; and shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.
Background
Councils carry out many different functions, including regulating works to trees in conservation areas. (A conservation area is an area of special architectural or historic interest whose character and appearance has legal protection.) The law says councils must have regard, so far as consistent with the proper exercise of their functions, to biodiversity conservation.
When exercising their planning functions, councils also have a conservation area duty. The duty is to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area.
To avoid committing a criminal offence, people must usually give their council six weeks’ notice before carrying out works to trees in conservation areas. Section 211 of the Town and Country Planning Act 1990 (as amended) sets out the need for the notice (‘a section 211 notice’). During the six weeks the council may decide to make a tree preservation order (TPO). (A TPO protects trees from, for example, wilful destruction and felling.) If the council decides not to make a TPO it may tell the person giving the section 211 notice they may carry out the works. If the six weeks passes without any response from the council, the person giving the section 211 notice may carry out the works within two years.
When councils receive a section 211 notice they may, but do not have to, publicise it. The Government’s Planning Practice Guidance (PPG) says a council officer should visit to view the tree before responding and deciding to make a TPO. And the information gathered during a visit may include the tree’s importance as a wildlife habitat.
To make a TPO, councils must be satisfied ‘it is expedient in the interests of amenity’ to protect the tree(s). The PPG says councils should use a TPO to protect trees “if their removal would have a significant negative impact on the local environment and its enjoyment by the public”. Tree legislation does not define ‘amenity’ and so the PPG says councils must exercise judgement in reaching their TPO decisions. The PPG suggests criteria councils might consider when assessing the amenity value of a tree. The criteria include visibility and the tree’s characteristics. On ‘visibility’, the PPG says councils should consider the extent to which the tree can be seen by the public. The PPG says this helps decide whether the tree has a significant impact on the local environment. On ‘characteristics’, the PPG says councils should consider, for example, the tree’s size and form; contribution to any conservation area; and its relationship to the landscape. The PPG also says that ‘other factors’, may be relevant although these alone "would not warrant making a [TPO]”. The PPG gives, as an example of ‘other factors, the tree’s “importance to nature conservation or response to climate change”.
Many councils use the ‘tree evaluation method for preservation orders’ (TEMPO) form as a guide when making TPO decisions. The TEMPO form provides a points-based system for assessing a tree’s amenity value and whether it is ‘expedient’ to make a TPO. In assessing amenity value, TEMPO awards points for a tree’s condition and suitability for a TPO; its retention span in years; and its public visibility. If a tree scores at least seven points without any ‘zero’ under these three amenity criteria, TEMPO assesses ‘other factors’. Among the ‘other factors’, the TEMPO form includes any “identifiable historic, commemorative or habitat importance” of a tree, which will score three. If a tree scores at least nine points in an amenity assessment, councils will carry out an ‘expediency assessment’ under the TEMPO points system. Finally, the TEMPO form provides a ‘decision guide’ where a tree needs at least 11 points for a TPO to be “defensible”. A score lower than 11 will not warrant a TPO under the TEMPO system.
It is an offence to intentionally kill, injure or take any wild animal protected by the Wildlife and Countryside Act 1981, as amended (‘the 1981 Act’). Bats are among the wild animals protected by the 1981 Act.
Councils will have a ‘scheme of delegation’ authorising their officers to make decisions. The Openness of Local Government Bodies Regulations 2014 (‘the 2014 Regulations’) cover decisions made by officers using their delegated powers. Generally, where an officer makes such a decision they must produce a written record of that decision as soon as reasonably practicable. The written record must contain information set out in the 2014 Regulations, including the reasons for the decision and details of alternative options, if any, considered and rejected.
What happened The Council received a section 211 notice of proposed works to trees in a conservation area (‘the Notice’). The Council did not publicise the Notice but one of its officers visited the site and viewed the trees. The Council then wrote to the landowner consenting to the proposed works. The Council did not record in writing how and why it reached its decision.
Tree works started on site. Ms X’s home was near the site and within the conservation area. Ms X contacted the Council saying the tree works affected bats and their habitat. Ms X said the Council told her destroying bats and their habitat was a criminal offence that she should report to the police. Ms X found the Council’s response unsatisfactory and made a formal complaint.
In summary, Ms X said the Council failed to meet its biodiversity conservation duty (see paragraph 7) in approving works affecting bats and their habitat. Ms X said the Council had not publicised the works and local people had no opportunity either before or during the works to raise concerns about habitat loss. Ms X said publicising the works would have supported compliance with the biodiversity conservation duty as residents had knowledge of the local area. And the Council should have assessed wildlife potential during its site visit. Ms X said the Council’s failure to meet its biodiversity conservation duty was both distressing and disappointing.
The Council replied saying, in summary, it was fully aware of its biodiversity duty. But the duty did not mean a TPO would protect every riverbank tree. In deciding whether to protect a conservation area tree with a TPO the main consideration was the tree’s amenity value. It also had to apply its conservation area duty (see paragraph 8). It had visited the site and assessed the trees from public land. In its professional view the trees’ visual amenity were not sufficient to warrant a TPO. It therefore told the owner the works could go ahead.
The Council also said it did not need to publicise section 211 notices. It could seek views from its Conservation Area Advisory Panels (CAAP) but there was no such panel for Ms X’s conservation area. The Council said the tree owner still had to meet all other legal requirements, including the 1981 Act. And a failure to comply with the 1981 Act was a police matter.
The Council’s comments to the Ombudsman The Council said it used the TEMPO form as a guide when making its TPO decisions. But its officers did not fill out the form to show its TPO decision making. It did log tree work information. Here, the log included, details of the landowner, the date of its site visit, a description of the works, and its “NO TPO” decision. The Council confirmed it was its normal practice not to make a written record of how and why it reached its TPO decisions. When asked whether it considered the 2014 Regulations (see paragraph 14) applied to its TPO decision making, the Council said, ‘it did not hold this information’.
The Council said it held information on specific species and habitats for ‘SINCs’ (sites of importance for nature conservation), which it last reviewed in 2019. The trees near Ms X’s home were not part of a SINC. (Ms X disagreed with the Council and pointed to the area being covered by a London wide ‘site of metropolitan importance’.) However, aside from planning laws protecting trees, there was separate legislation to protect many species and their habitats. This separate legislation ensured, for example, contractors acted carefully with due diligence when carrying out tree work. However, the Council said it could, when consenting to section 211 notice tree works, remind applicants of laws protecting specific species and their habitats.
The Council said it had to exercise its biodiversity conservation duty so far as consistent with its other duties, meaning it had to balance objectives. In discharging the biodiversity conservation duty, it would act proportionately to the scale and nature of proposed tree works. The Council pointed out the principal reason for a conservation area was to protect its special architectural or historic interest not its nature conservation value. Tree works were not unusual, and trees naturally regenerated. Works to trees outside conservation areas but not covered by a TPO did not need a section 211 notice. Separate legislation existed to protect specific species, including bats, and habitats when tree works took place to such unprotected trees. Here, the tree works had a negligible impact on the area’s biodiversity value.
The Council said it always consulted any relevant CAAP on a section 211 notice. And, where the CAAP expressed strong opinions, that might lead it to consult residents more widely. It sometimes consulted residents where there was no CAAP. However, due to staffing issues, this was rare, and it had not done so during the last three years. The Council said it did not consider consultation necessary in this case as the works were mainly tree reductions. Of the two trees to be cut down, one was “mostly dead”, which was a safety issue, and the other causing nuisance by physically damaging a building. However, the Council admitted it had made an error about there being no CAAP for the conservation area in this case. The Council said a general CAAP covered the conservation area where Ms X lived. It had now corrected its records to ensure it would consult the relevant CAAP about future section 211 notices for Ms X’s conservation area.
The Council said the maximum TEMPO score for two trees covered by the Notice was likely to be eight with all others achieving scores between zero and three. The two trees for removal would have scored zero, one because it was dying and the other being close to and already damaging a building. The TEMPO ‘other factors’ criterion (see paragraph 12) would have applied to the two trees scoring eight. But, neither tree was of historic or commemorative value. Both trees were to be pruned meaning any wildlife impact would be minimal while improving their lifespan. And, while near a river, which might mean bats used the area for feeding, there was no evidence either tree was used for roosting or bat habitat. The Council said it did not consider the two trees merited a score for ‘habitat importance’. The Council recognised that adding three for habitat importance would have taken the two trees’ score to 11, which meant a TPO was “defensible” under the TEMPO system. However, the Council confirmed it did not consider either tree merited such a score. And it did not consider any comments from Ms X would have affected its TPO decision in response to the Notice.
The Council said application of its biodiversity conservation duty was embedded in its work, for example its maintenance of public green spaces and protection of SINCs. Its Strategic Climate Action Plan also addressed biodiversity matters and proposes action plans. It was currently considering the scope of such action plans, which should provide for residents’ engagement.
Consideration We are not an appeal body, and it is not for me to comment on the merits of the Council’s decision on the Notice. My role is to consider whether the Council acted with fault in reaching that decision.
The Council does not have to publicise any section 211 notice. However, its standard practice was to consult with any relevant CAAP when processing such notices. Here, the Council recognised it failed to follow its normal practice in dealing with the Notice as it did not consult the general CAAP (see paragraph 23). I therefore find the Council acted with fault.
The Council provided information about its TEMPO scoring for the Notice works (see paragraph 24). It did not consider any comments about wildlife species and their habitats would likely have affected its decision to approve the Notice works. The Council’s position was not without merit and was sustainable. So, on balance, I did not find the failure to consult the CAAP affected its decision. The Council had acted to ensure it followed its normal practice when handling future section 211 notices for the conservation area where Ms X lives. I therefore made no recommendations for service improvements.
However, the Council’s comments about how it made its decision on the Notice, including its TEMPO scoring came long after it approved the tree works. I gave the Council the opportunity to comment on whether the 2014 Regulations were relevant to its decision making. It did not argue they did not apply to its decision on the Notice, and I was satisfied they did. The Council should have complied with the 2014 Regulations, including recording its written reasons for approving the Notice works. Its failure to do so was fault.
The Ombudsman’s ‘Principles of good administrative practice’ were also relevant. A key ‘principle’ is being open and accountable, which, for example, means keeping proper and appropriate records and giving reasons for decisions. If the Council had made and kept a record of its decision making for the Notice, it could have included that it considered ‘habitat importance’ (see paragraph 12). It could also have reflected its view of the works having a ‘negligible impact’ (see paragraph 22) on biodiversity value. While Ms X might well disagree with the Council’s views, the record would have demonstrated the Council’s ‘regard to’ its biodiversity conservation duty (see paragraph 7). I therefore found the Council fell below acceptable administrative standards in not contemporaneously evidencing in writing how it reached its decision on the Notice.
While the Council has now explained its decision, the lack of a timely written record of that decision was likely to have caused Ms X distress and frustration.
Agreed action
To address the distress and frustration caused to Ms X by the faults identified at paragraphs 27, 29 and 30, the Council agreed to send Ms X a written apology within 20 working days of this decision statement and copy it to the Ombudsman.
The Council also agreed, within 30 working days of this decision statement, to change its practice and procedure for deciding section 211 notices to: ensure it makes and keeps a written record of the reasons for its decisions; and include a note drawing the applicant’s attention to relevant wildlife protection legislation when it consents to tree works.
And the Council will immediately write to all relevant officers to tell them about the changes and the need to implement them when dealing with 211 notices. The Council also agreed to send the Ombudsman evidence of its compliance with this paragraph 33 service improvement within 40 working days of this decision statement.
Final decision
I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 32 and 33.
Investigator's decision on behalf of the Ombudsman