The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint the Council treated her unfairly when dealing with her applications for tree works. The Council granted Ms X permission to do the works and has not caused her an injustice. Ms X had a right of appeal to the planning inspector against the Council’s planning condition. She has a legal remedy at court, which it is reasonable for her to use, if she wants to claim the Council has harmed her health or discriminated against her.
The complaint
Ms X complains the Council treated her unfairly when dealing with her applications for tree works and less favourably than a similar application by a neighbour. Ms X says in July 2021 the Council granted permission for the tree works but a planning condition only allowed the work between November and March when the tree was not growing. Ms X says a similar condition was not applied to the neighbour’s tree and he did the work in May. Ms X says the neighbour’s tree affected her property for 12 months causing damp and harm to her health. She says the neighbour’s works affected the access to her property.
The Ombudsman’s role and powers
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 investigating, or any fault has not caused injustice to the person who complained, or any injustice is not significant enough to justify our involvement, or we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6)) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b)) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I have considered Ms X’s information and comments. The Council has provided the complaint correspondence and the tree application decisions.
My assessment
I will not investigate Ms X’s complaint for the following reasons: The Council granted Ms X permission to fell one tree and prune another tree on her land both subject to tree preservation orders (TPO’s). At most Ms X had to wait 3 months to prune the tree.
The complaint about the planning condition is outside the Ombudsman’s jurisdiction (see paragraphs 3 and 4). If Ms X disagreed with the planning condition, restricting the period of pruning, she had a right of appeal to the planning inspector. The right of appeal is explained in the decision notice which the Council says was sent to Ms X’s tree company which applied on her behalf.
I consider it reasonable for Ms X to have used her right of appeal because the planning inspector could change the decision. It may not have been practical to do so given the delay was for a short period. In that case I would not investigate because there is no fault or injustice.
The Council explained the neighbour’s tree is not subject to a TPO and denies treating Ms X unfairly. There is insufficient evidence of fault or injustice. I do not consider it a good use of limited public resources to investigate.
If Ms X claims the Council has harmed her health, property, or unlawfully discriminated against her, she has a legal remedy at court which it is reasonable for her to use (see paragraph 3 and 5). The Council advised Ms X that if the neighbour damaged her property it is a civil matter which she can take to court. I have not seen any evidence suggesting the Council has treated Ms X unfairly.
Final decision
The Ombudsman will not investigate Ms X’s complaint the Council treated her unfairly when dealing with her applications for tree works. The Council granted permission to do the works and has not caused Ms X an injustice. Ms X had a right of appeal to the planning inspector against the Council’s planning condition. She has a legal remedy at court, which it is reasonable for her to use, if she wants to claim the Council harmed her health or discriminated against her.
Investigator's decision on behalf of the Ombudsman