The Ombudsman's final decision
Summary: Miss X complains the Council has not dealt properly with works to a tree and not dealt properly with badgers causing damage. The Council was at fault because the work was not completed professionally, it did not deal with her complaint properly and it has not dealt with a badger sett on land which is legally owned by the Council. Miss X has been left with a heavily damaged tree, land damaged by badgers and no civil recovery options. The Council should deal properly with the badger sett, pay Miss X £250 towards replacement planting, pay Miss X £500 for distress and implement the already agreed separate remedies from previous investigations, including the outstanding transfer of land back to her.
The complaint
The complainant, whom I shall refer to as Miss X, complains that the Council did not deal properly with works to a tree and has not properly dealt with a badger set near her home because: Works were not completed by a qualified tree surgeon; The work completed was of an unacceptable standard as the tree is evergreen and has been cut back too far; Did not deal with her complaint through its complaint process properly; and The badger set is on, or access is being gained by the badgers via, land which is the legal responsibility of the Council.
Miss X says she is left with a destroyed tree and has suffered distress. Miss X also says that to remedy the problem will require further action, which may affect the implementation of a separate remedy from a previous Ombudsman’s investigation.
Miss X says the badgers are causing damage both to her property and the section of land which is incorrectly registered as owned by the Council and the presence of badgers will impact on the completion of a previous complaint remedy.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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) We cannot question whether a council’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) When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
If we are satisfied with a council’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 spoke to Miss X about his complaint and considered documents provided by Miss X. I made enquiries of the Council and considered its response and the supporting documents it provided. I interviewed the clerk of works. I have reviewed photographs of the site provided by Miss X and the Council.
The Ombudsman has investigated a previous complaint regarding land incorrectly registered to the Council, hereafter referred to as investigation 1. This found fault by the Council causing injustice to Miss X.
I have investigated a previous complaint, hereafter referred to as investigation 2. This found fault by the Council causing injustice to Miss X.
The issues in the current complaints are closely connected to those original matters in investigations 1 and 2.
Miss X 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
The Protection of Badgers Act 1992 makes it an offence to interfering with badger setts by damaging, destroying or obstructing access to, or any entrance of, a badger sett. It is also an offence to intend to do any of those things or being reckless as to whether his actions would have any of those consequences.
The Act allows a licence to be granted for a variety of reasons. The holder of such a licence may be permitted to take actions otherwise forbidden as set out in paragraph 13 above.
What happened?
The Council was historically held at fault in Ombudsman investigation 1 because it wrongly held title to land which was rightfully Miss X’s. The tree in question is on this land and is the Council’s responsibility until the land is legally transferred back to Miss X.
Miss X’s neighbour undertook work to the rear of the tree, severely damaging it.
When works relating to a previous recommendation from Ombudsman investigation 2 were being undertaken, contractors from the Council completed works to the tree, lowering its height and attempting to shape it.
Miss X complained to the Council regarding the state of the tree. The Council responded saying it should wait for one growing season. It also later offered to have the tree reviewed by its Greencare team. Miss X refused this.
Miss X also complained to the Council about damage to her garden caused by badgers. The Council made investigations into the presence or otherwise of badgers and completed an ecological survey.
The Council said any action taken with respect to building work would be subject to an appropriate survey if it was felt that the existence of badgers would impinge on the building works proposed, that there was no obligation on the Council to address the badgers and the existence of badgers within her boundary is something that Miss X should consider as the landowner.
Analysis The Council says there was no formal works order for the work to Miss X’s tree.
Work to the tree has clearly been undertaken at two different points in time and by two different sets of people. The rear of the tree has been worked on by a neighbour who has caused serious damage before August 2020. The tree has also been reduced in height and shaped by the Council’s contractor since that time.
Qualifications There are no formal qualifications required to be a tree surgeon. The Council has provided copies of qualifications held by its contractor. This is not fault by the Council.
Standard of work The Council’s contractor agreed he could reshape the tree. All parties agree this reshaping work was stopped when Miss X became unhappy with the outcome. The clerk of works says the contractor advised that it would all grow back.
The reshaping work has left an obvious hole in the greenery of the tree and a large brown patch clearly visible from Miss X’s house.
Photographs of the tree show it has not regrown. The Council’s clerk of works agrees that the tree clearly hasn’t grown back.
On the balance of probabilities, the work was not completed satisfactorily. An experienced tree surgeon would have understood that a coniferous tree of this type would not regrow when over trimmed. The contractor’s comments at the time of the works indicate they did not possess this understanding. This is fault by the Council. Miss X has been left with damage to the tree that is irreparable.
Complaint handling Miss X made an explicit request to the Council to treat her comments as a formal complaint. Prior to the involvement of the Ombudsman, the Council did not consider them as a separate formal complaint. Instead, it considered it as an intrinsic part of an earlier complaint by Miss X.
When Miss X complained about the damage to her tree, she specifically referenced the time period where the Council agrees it was the legal owner of the land (and responsible for it and the tree upon it), the damage done by her neighbour and the inaction of the Council in respect of this.
The Council’s first response to Miss X stated, “I cannot comment any further on what has happened historically with your tree..”
There is no evidence the Council has considered its responsibility for damage done to the tree by Miss X’s neighbour and how it may deal with that. The Council therefore did not consider Miss X’s complaint about the tree properly. This is fault by the Council. Miss X is left with a severely damaged tree and with no remedy available for her privately to resolve this.
Action by the Council The Council has offered to pay Miss X £250 to compensate for the current state of the tree. This is not an appropriate remedy.
Badgers The Council completed a ‘soft search’ of areas adjoining Miss X’s property and said in its stage one complaint response that this, “suggested that there is not a Badger Sett ... adjacent to your property nor the small strip located between you and your neighbour.”
The ‘soft search’ by the Council did not include any consideration of Miss X’s garden. It is therefore of little value in relation to this complaint as it does not cover the area in question.
The ecologist’s report by the Council did not include any consideration of Miss X’s garden. It is therefore of little value in relation to this complaint as it does not cover the area in question.
A further assessment by a Council officer following the ecologist report identified an extensive badger set near Miss X’s property, stating, “Taking into account the size of the Sett, which appears to have been there for some time, the Sett may extend underneath the patio area where the tree is.”
Investigations and a site visit by The Badger Trust found that, “in the garden at the rear of the property there is an active badger sett.... One sett entrance to the left looking up the garden, under the conifer tree on the top terrace and one to the right on the first terrace.”
The Badger Trust also commented, “being a protected species no interference of the badger sett is possible unless carried out under a Natural England licence, by a suitably qualified Ecologist.”
On the balance of probabilities there is a single extensive badger set under Miss X’s garden which would impinge on the implementation of the remedy relating to the previous Ombudsman’s investigation.
The Council did not tell Miss X that it believed there was a badger set which may extend underneath the patio area where the tree is. This area specifically referenced by the Council forms a significant part of the land which it wrongly holds title to, (as a result of previous fault in another separate Ombudsman’s investigation), and for which it is responsible until transferred back to Miss X.
The Council is therefore responsible for dealing with this badger set as it is the registered landowner of the land upon which work is necessary to complete an outstanding remedy, as per its own stage two complaint response. This is fault by the Council. Miss X suffered distress and the original injustice of the land being transferred back to Miss X, (outstanding from the first Ombudsman’s investigation), cannot be resolved until the wall, tree and badger issues have been satisfactorily addressed.
Any remaining damage to Miss X’s garden which falls outside the area which is registered to the Council is not the responsibility of the Council.
Agreed action
To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks, or as soon as practicable, of this decision: Apologise to Miss X; Complete a full ecological survey in order to help identify the scope and extent of any works necessary; Apply for a Natural England licence to be able to address the badger set on Miss X’s property, however registered, as per the Badger Trust’s advice; Complete any work necessary, under the supervision of a suitably qualified ecologist as necessary, to enable the implementation of the following elements below; Provide mitigation for the unsightly brown dead area caused to the part of the tree facing the complaint’s house, in a manner to be agreed with the complainant and the Ombudsman; Implement the design of the previously agreed complaint remedy expediently (subject to access being granted by Miss X); Pay Miss X £250 towards further planting or other works she deems appropriate.
Pay Miss X £500 for distress.
Complete any outstanding elements of the previous remedies including transfer of land back to Miss X at no cost to her, upon completion of all elements to the agreed specifications.
Final decision
I have found fault by the Council, which caused injustice to Miss X. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman