The Ombudsman's final decision
Summary: Mrs X complains about the way the Council responded to her request to mitigate damage to her property and danger to her from the trees growing on her neighbour’s property. She also complains about the Council officers’ conduct during their visit to her property. We find fault in the Council’s policy, but this fault did not cause Mrs X injustice.
The complaint
Mrs X says the Council failed to act to mitigate damage to her property and danger to her from the trees growing on her neighbour’s (Mr Y) property, very close to the boundary. Mrs X complains about the Council’s delays and lack of professional standards when dealing with her. She considers the Council’s failings caused her financial loss, frustration and left her feeling belittled and insulted.
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) 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 considered information and documents provided by Mrs X. I also discussed the complaint with her.
I considered documents received from the Council.
I reviewed the Council’s policy “Tree Management Policies - Management of Trees on Council Owned and Maintained Land” (Policy).
Mrs 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
Legal and administrative framework Law Where a council receives from a land owner or occupier a notice requesting the council to make safe a tree on other land and considers the tree is in such condition that it is likely to cause damage to persons or property, the council may serve on the owner or the occupier of the neighbouring land a notice requiring him to take within a reasonable period specified steps for making the tree safe. (Local Government (Miscellaneous Provisions) Act 1976 S.23(3)) It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
Council’s policy If a tree in private ownership is shown to be an imminent danger to non-highway land, the landowner may be contacted and instructed to make the tree safe (under the Local Government Miscellaneous Provisions Act 1976). If it is necessary the council undertakes this work then the owner will be charged in full for the council's costs. (Wiltshire Tree Management Policies paragraph 14.0) The Council’s policy also provides details of the actions to follow a tree-related enquiry: A site inspection will be undertaken in order to establish the imminence of the danger and the customer notified of what action is considered appropriate; If the tree fulfils the categories for level of risk and imminence of danger the council will notify the owner of the tree of what works they are responsible for to make the situation safe within 21 days.
The Council’s policy tells its residents the powers to make safe a tree are discretionary and will only be used if there is an imminent threat to public safety.
What happened Mrs X’s request to the Council In May 2021 and again in the beginning of June 2021 Mrs X asked the Council to help with the trees on Mr Y’s land which, in her view, were causing damage to her property and presented risk to her and her visitors. The Council eventually passed on Mrs X’s request to the Planning Enforcement team.
During a telephone conversation the Arboriculture Officer (Officer B) told Mrs X the Council could not help with this issue as this was a civil matter between her and her neighbour. In the beginning of August the Senior Council Officer (Officer C) confirmed this advice in writing.
Mrs X asked for a site visit according to the Council’s Health and Safety duties as she considered she and her property were at risk.
Site visit After further exchange of correspondence between Mrs X and the Council, without a notice, in the mid-August 2021 Officer B and Officer C visited Mrs X’s property.
The Council officers viewed the areas which, according to Mrs X, were affected by Mr Y’s trees and took some photographs. They discussed the matter with Mrs X.
After the visit to Mrs X’s property the Council officers visited Mr Y and talked to him about the trees growing nearby the boundary with Mrs X’s property. Mr Y said he would allow Mrs X access to his property to fell the trees at her own expense.
Over a week after the visit Officer C formally responded to Mrs X’s call for assistance explaining the Council would not intervene as there is no danger to public safety. He also re-iterated the Council’s position this was a private matter between Mrs X and Mr Y. Officer C listed the choices available to her to resolve this situation, including a possibility of felling Mr Y’s trees at her expense.
Officer C warned Mrs X in his letter that removing the trees which are located on the slope might cause the soil to heave and potentially cause damage to Mrs X’s property.
Complaint At the very end of August 2021 Mrs X complained to the Council. She raised the following issues: the Council’s inadequate response to her report of Mr Y’s trees posing risk to people and damage to her property. She said her request was passed from one department to another and nobody seemingly felt responsible for dealing with it; lack of notice for the officers’ visit in her property and the officers’ lack of knowledge especially on the distance rules. Mrs X was concerned with the officers’ attitude as they appeared to have their minds made up. She claimed they made disparaging comments about priority of the trees over Mrs X’s property and the fall of leaves and branches being natural. Mrs X felt belittled and intimidated during this visit; the Council officers’ visit to Mr Y. She considered they acted on her behalf without her permission, which was unacceptable.
In the Stage 1 complaint response the Council confirmed its position. Under the legislation the Council had discretionary powers to deal with dangerous trees located on the privately owned land. These powers were normally used as a last resort, when a tree presented an imminent danger of harm to a person or property. The Council applied this test to the trees growing near Mrs X’s property and found it was not met. As the Council correctly dealt with Mrs X’s notice, it did not uphold the complaint.
Applying for the further consideration of her complaint Mrs X expressed her disagreement with the Council’s assessment of the situation. She also pointed out the Council failed to address several of her concerns.
In the Stage 2 response the Council addressed all the issues raised by Mrs X as below: having received the notice from Mrs X, the Council carried out the correct process to find out whether there are grounds for the Council to act. After the visit to the site the Council officers arrived at a professional judgement Mr Y’s trees do not pose a danger to public safety and therefore the matter was a private issue between Mrs X and her neighbour. They explained their reasons in writing and suggested possible solutions; the Council officers visited Mr Y to help to find a solution. Mr Y told them it would be possible for Mrs X to fell his trees at her own expense. The officers did not try to represent Mrs X; the Council did not accept the officers behaved in a biased and unprofessional manner towards Mrs X. As professionals with significant experience and no record of complaints about their conduct or attitude, they both denied such allegations. The correspondence which took place between the officers and Mrs X confirms their polite and respectful manner.
Analysis Council’s policy I find paragraph 14 of the Policy misleading as it implies the Council has only powers to act if there is an imminent danger to non-highway land. In fact, the Local Government Miscellaneous Provisions Act 1976 gives councils much broader powers, including in situations where the tree is likely to cause damage to people or property.
Leaving extra powers out of the Policy poses a risk of the Council fettering its discretion which is fault. It also means the test applied by council officers dealing with notices about privately owned trees is too narrow.
The use of powers for privately owned trees, however, is left to the Council’s discretion. The Council advises its residents it will only use its powers when there is an imminent danger to public safety. There is no statutory duty for the Council to act, therefore such use of the Council’s discretion is permitted.
I therefore do not consider the fault identified caused Mrs X any injustice. Even if the Policy had properly outlined the Council’s powers as provided by the legislation, the Council would have had discretion how to use them.
Council’s actions in response to Mrs X’s request The Council’s Policy describes the process for dealing with notices about trees. In case of privately owned trees the Council’s intervention is an exception from the rule these are private matters between the land owners.
In response to Mrs X’s claims of danger to her and her property the Council officers first responded in writing. Although there were some delays with responding to Mrs X’s request and confusion with the department appropriate to deal with this issue, I do not consider they were significant enough to amount to service failure or maladministration.
After Mrs X’s specific plea, the Council officers carried out the site inspection. The lack of notice for this visit is not good practice but I do not consider this amounts to a service failure or maladministration in the circumstances.
During the site visit the Council officers decided there was no imminent danger to the public safety and told Mrs X the Council would not be taking any further action. In the formal correspondence Officer C listed the options available to Mrs X to privately resolve the problem.
I cannot determine whether the Council’s decision is right or wrong as we can only look at the process which led to the decision. Provided the Council carried out the decision-making process correctly, we cannot criticise its decision.
The Council undertook correct actions, in line with its Policy. Thus I find no fault.
Council officers’ professional standards After reviewing the Council officer’s letter sent to Mrs X following the site visit, which includes the details of their discussion with her neighbour, I find there is no evidence the Council officers were trying to represent Mrs X or act on her behalf. One of the suggestions in the letter to Mrs X on the possible courses of action refers to Mr Y’s position, learnt during the visit, which is a satisfactory explanation of why this visit took place.
Because of the difference of opinions between Mrs X and the Council officers on their conduct and attitude during the site visit, I considered all the evidence and in particular: records of communication between Officers B and C and Mrs X; the officers’ up-to-date record of professional conduct; the officers’ qualifications and experience.
The review of the correspondence does not raise any concerns about the officers’ attitude and professionalism. It shows their knowledge and experience as well as compliance with the Council’s Policy.
There had been no other complaints about the Council officers who carried out the site visit.
For the reasons listed in paragraphs 36, 38 and 39 I do not consider there are sufficient grounds to criticise the Council officers’ conduct.
Final decision
I have completed my investigation and uphold Mrs X’s complaint. There was fault with the Council’s Tree Management policy, however it did not cause Mrs X any injustice.
Investigator's decision on behalf of the Ombudsman