The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council imposing an area Tree Preservation Order (TPO) years ago on a property he recently bought, not reviewing the TPO for many years, deciding not to revoke the TPO, and how it dealt with his complaint. Complaints about the Council’s decision to apply the TPO and lack of reviews is late. There are no good reasons for us to investigate them now, nor any different outcome investigation would achieve. There is not enough evidence of fault in the Council’s process when deciding not to revoke the TPO to warrant investigation. We do not investigate council complaint-handling where we are not investigating the core issues which gave rise to the complaint. We cannot achieve the outcome Mr X seeks from the complaint.
The complaint
Mr X bought a property in 2023 with many trees within its grounds. There has been an area Tree Preservation Order (TPO) on the entire plot since the property was built many years ago. Mr X complains the Council: incorrectly imposed the TPO and failed to review it for many years; incorrectly decided not to revoke the area TPO after his request; failed to fully consider his representations when making its decision not to revoke the TPO; failed to fully review its original officer’s decision during later complaint stages.
Mr X says the TPO treats him unfairly relative to other nearby properties without TPOs. He says the TPO means every time he wants to do work to the trees he has to pay to apply to the Council for planning permission and get an arboricultural report, a significant monetary and time burden. Mr X says the cost prevents him properly managing the trees and creating a biodiverse garden. He is worried about the damage which could be caused to people and property by some larger and older trees. Mr X says the situation has negatively impacted his and his family’s mental health. He wants the Council to revoke the TPO, which he considers would be a decision in line with government guidance as well as being the appropriate moral decision.
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) We investigate 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 continue an investigation if we decide: further investigation would not lead to a different outcome; or there is not enough evidence of fault to justify investigating; or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information from Mr X and the Ombudsman’s Assessment Code.
My assessment
Mr X complains about the Council’s decision to impose the TPO. But that happened many years ago when Mr X did not own the property. This part of the complaint is late and there are no good reasons to investigate it now. Investigation of the circumstances of the imposition of the TPO and of any reviews not done in the many intervening years, when Mr X did not own the property, would not lead to a different outcome.
In response to Mr X’s request to remove the TPO, the Council’s officer considered his representations and the history and details of the site. The officer determined the protected trees continued to have amenity value. This included public amenity value as trees are visible to people using the private access road to nearby properties. The officer decided the protection afforded to the trees by the TPO should continue and declined the revocation request. Them not agreeing to Mr X’s request does not mean they did not consider his representations.
We are not an appeal body. We may only go behind a council’s decision if there is fault in the decision-making process officers have followed and but for that fault a different decision would have been made. So we consider the process councils have followed when making their decision. Officers gathered relevant information to inform their decision not to revoke the TPO. It was a decision the Council was entitled to take. There is not enough evidence of fault in the Council’s decision‑making process here to justify us investigating. We realise Mr X disagrees with the Council’s decision not to revoke the TPO. But it is not fault for a council to properly make a decision with which someone disagrees.
Mr X also complains about the Council’s review of his case at later stages of its internal complaints process. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
We note the outcome Mr X wants from his complaint is for the Council to revoke the TPO. We cannot order councils to revoke TPOs. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.
Final decision
We will not investigate Mr X’s complaint because: the complaint about the Council’s decision to impose the TPO and any lack of subsequent TPO reviews is late and there are no good reasons for us to investigate now, nor any different outcome investigation would achieve; and there is not enough evidence of fault in the Council’s process when deciding not to revoke the TPO to warrant us investigating; and we do not investigate council complaint-handling where we are not investigating the core issues giving rise to the complaint; we cannot achieve the outcome he seeks from his complaint.
Investigator's decision on behalf of the Ombudsman