The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s Tree Preservation Order (TPO) process from over 15 years ago. The complaint is late and there is no good reason to investigate it now. There is not enough evidence of fault by the Council in the way it has responded to Mrs X’s concerns about the impacts on her property and family of the privately‑owned tree to warrant an investigation.
The complaint
Mrs X lives in a house next to privately-owned land containing a large tree. The tree is the subject of a Tree Preservation Order (TPO) which was in place before Mrs X moved to her house several years ago.
Mrs X complains the Council: failed to give her and her neighbours opportunity to make representations against the TPO; has failed to tell her who requested the TPO.
Mrs X says it is unfair the Council has given her no opportunity to appeal against the TPO decision. She says the tree means: branches, roots and tree sap have damaged her house, drive, garden, car and telephone line; she has not been able to resurface her drive and install a ramp to her house; she cannot open windows because of flies and debris; light to the house is blocked; wet leaves fall on her drive, making it slippery; she has to spend time and been caused inconvenience taking fallen leaves to the tip; she cannot sell her house.
Mrs X wants to know why the TPO was put on without consultation.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify us investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Mrs X and the Ombudsman’s Assessment Code.
My assessment
The Council applied the TPO to the tree over 15 years ago. Mrs X was aware of the TPO at the time she moved to the property many years ago and brought the matter to us this year. We expect people to complain to us within 12 months of becoming aware of something a council has done. Any complaint about the TPO process, including the consultation with residents, is late.
We may investigate late complaints if there is good reason to. There is no good reason to investigate the TPO process now. I say this because Mrs X was not a resident affected by the tree or the TPO at the time the TPO process occurred. Even if there was fault in the TPO process, we cannot say Mrs X was caused any injustice by it, because she was not affected when that process happened. Mrs X’s claimed injustices all come from the tree’s impacts on her property now. None of her injustices are caused by the TPO process, including how the TPO came about, who applied to the Council for it, or the consultation process used.
In respect of these impacts of the tree, the Council has explained to Mrs X the duty to maintain it remains with its owner. The Council’s only involvement was with the TPO process. A council does not take responsibility for a privately‑owned tree because of a TPO. The Council is not responsible for the problems Mrs X is experiencing with the tree. Officers have visited and advised Mrs X of her right to apply to the Council to do work to it. They have indicated they would be likely to approve an application to reduce and thin out the tree, to clear Mrs X’s house and nearby cables. But they have also explained that even if the Council grants the TPO works permission, she would still need the tree owner’s permission to do that work. It would remain a matter between Mrs X and the tree’s owner. There is not enough evidence of fault by the Council in how it has responded to Mrs X’s concerns to warrant us investigating.
Final decision
We will not investigate Mrs X’s complaint because: the complaint about the TPO process is late and there is no good reason to investigate it now; and there is not enough evidence of fault in how the Council has responded to Mrs X’s concerns about the tree to warrant us investigating.
Investigator's decision on behalf of the Ombudsman