The Ombudsman's final decision
Summary: Mr B applied for a dropped kerb outside his property. The Council’s Neighbourhoods team agreed a crossover could be installed subject to the Tree Officer’s consent to the removal of a tree. Mr B complained that the Tree Officer failed to inspect the tree to decide whether it could be removed causing him distress and uncertainty. We found the Council was at fault because it has been unable to provide evidence that the tree officer visited the site and properly considered alternative locations for a replacement tree. We have recommended a remedy for the injustice caused by this.
The complaint
Mr B complains that the Council’s Tree Officer has failed to inspect a tree outside his property to decide whether it should be removed. He applied to the Council for a dropped kerb outside his property in September 2021. The Council’s Neighbourhoods team agreed that a crossover could be installed subject to the Tree Officer’s consent to removal of the tree. Mr B says he has suffered distress and uncertainty because of the delay and has been put to time and trouble in pursuing the matter.
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) 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 have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Key facts Mr B applied to the Council for a dropped kerb outside his property in September 2021. The Council declined his application. Mr B complained saying every other property in the road had a dropped kerb. An officer from the Neighbourhoods team met with Mr B on site to discuss the options. He advised that a crossover could be potentially installed subject to the relocation or removal of a tree outside Mr B’s property. He contacted the Tree team to ask whether this would be possible.
The Neighbourhoods Team sent a formal response to Mr B’s complaint in October 2021. It explained it was waiting for the Tree Team to inspect the tree and, if the Tree Team was not able to move the tree, it would not be possible to install a crossover. It said it would update Mr B when the Tree Team had completed an inspection and reported back. It confirmed the Tree Team had added the tree to the queue for inspection and had advised that ‘due to resources this may be a while’.
In November 2021 Mr B contacted the Neighbourhoods Team requesting an update. He said the tree was not in the best health. The Team said the tree was on a list for inspection, but it could not give him a firm inspection date. It explained that a new Tree Officer had been recruited and they were waiting for a date when he was due to start.
In January 2022 Mr B contacted the Neighbourhoods Team again asking for an update.
In February 2022 Mr B made a stage 2 complaint saying he had received no update. He said the tree was ‘looking half dead’ and that its roots were damaging his boundary wall. He said it needed to be removed regardless of the dropped kerb application.
The Council’s Chief Executive responded in March 2022. He apologised for the time and trouble Mr B had been put to in chasing up a response. He explained that the Tree Team had been experiencing staff shortage issues which had led to a backlog of inspections and urgent work had had to take priority. He explained it was the Tree Team’s established practice not to remove trees to allow for crossovers to be installed. If a tree was diseased or dying it would be replaced unless the resident was a blue badge holder. He confirmed he had asked the Tree Team to ensure the tree was inspected but, if it was identified as diseased or dying, it would be replaced. He also said he could not give a specific timeframe within which the inspection would be completed because of staffing issues together with recent storm damage across the borough.
The Council says that, in May 2022, a Tree Officer inspected the tree and confirmed it was dead. The Council has removed the tree and says a new tree will be planted in the same location during the next planting season (November 22-March 2023). The Council says a Tree Officer and the Team Manager considered alternative locations for a replacement tree during the recent inspection. But, because of the location of Mr B’s property on a corner plot and the number of crossovers already in place in the road, decided there are no nearby locations to plant a replacement tree. Accordingly, the Council refused Mr B’s application for a crossover.
Analysis Delay It took eight months for a Tree Officer to inspect the tree. However, there is no specific timescale within which an inspection must take place. The Council has explained that two Tree officers retired in August 2021 and the Tree Team experienced delays in recruiting replacement officers due to the specialist nature of the role. A new Tree Officer was appointed in December 2021 by which time there was a large backlog of inspections. Priority was given to the most urgent cases where there was a possible health and safety risk. In addition, severe storms in February 2022 further impacted the backlog.
I am satisfied with the Council’s explanation for the delay. It is entitled to prioritise urgent matters so there are no grounds to criticise this.
Mr B says the Council failed to communicate with him during this period, causing him distress and uncertainty.
Mr B was informed at the outset that it would take some time for the tree to be inspected. In response to his request for an update in November 2021, the Council explained it was waiting for a date when a new Tree Officer could start. I am satisfied the Council communicated appropriately with Mr B during this period. However, there was a delay in responding to his request for an update in January 2022. He did not receive a response until the Chief Executive wrote to him in March in response to his complaint. However, this was not an excessive delay and the Chief Executive apologised for the time and trouble Mr B was put to in chasing up a response. I do not therefore intend to pursue this issue further.
The Council’s decision Mr B says the Council was wrong to refuse his application. He says it has previously removed other trees in the road to install crossovers. He also says a replacement tree could be planted in a slightly different position to enable him to install a crossover.
The Council has explained that, when refusing applications for crossovers because of trees being in place, the Team must consider the Council’s vision which is set out in its Trees Strategy. The Council’s vision is “to preserve, improve and secure no ‘net loss’ of the Council’s tree stock for current and future generations”. The strategy states that the Council will "maintain a general presumption against the removal of trees, allowing felling only in accordance with good arboriculture and streetscape practice". In relation to vehicle crossovers, it states, "trees will not normally be removed to accommodate new vehicular access unless there is good arboriculture reason to do so, or the resident requires easier access due to disability”.
The Council says its policy is to only plant a replacement tree in another location if there is an appropriate location in the immediate area. It says this was not the case here.
Mr B says trees outside neighbouring properties have been removed in the past and he should not be disadvantaged by this.
Following my draft decision, the Council’s senior arboricultural officer and his manager reassessed the matter but remained of the view that the tree should be replaced during the next planting season in the same location. The Council says the location is lacking in both tree cover and suitable locations to install a new tree pit and tree. It says it plans to increase street planting over the coming years and will take advantage of all available spaces as part of this.
The Council is entitled to act in accordance with its Tree Strategy and is not bound by decisions it took in the past when there may have been reasons for removing trees. It is a matter for officers’ professional judgement whether the tree should be replaced in its existing location or in another location. So, there are no grounds to criticise the Council’s decision to replace the tree in the same location. This is a decision it is entitled to make.
However, I find the Council was at fault in that it has been unable to provide evidence that the tree officer visited the site in May 2022 and considered alternative locations for a replacement tree. While we would not necessarily expect detailed contemporaneous notes of the site visit, the Council should be able to provide some evidence that a visit was undertaken. The lack of evidence of the site visit causes Mr B uncertainty as to whether his application was properly considered.
The Council has explained that the service area will shortly roll out a new system which will enable officers to keep more detailed records of inspections so that, in future, it will be able to provide more information of observations made during site visits.
Agreed action
In my draft decision, I recommended the Council’s tree officer revisit the site and consider possible alternative locations for a replacement tree and record the details of the visit and the reasons for any decision made. The Council has now carried out a further review of the case with a senior officer and provided reasons for its decision to replace the tree in the same location. Given that the Council has reconsidered the matter, I do not consider it proportionate to recommend it completes a further site visit.
The Council has agreed that, within one month, it will: write to Mr B explaining its decision and the reasons for it; and provide the Ombudsman with a copy of the decision letter.
Final decision
I find the Council was at fault because it has been unable to provide evidence that the tree officer visited the site and considered alternative locations for a replacement tree.
I have completed my investigation on the basis that the Council has agreed to remedy the injustice caused.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman