The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council dealt with a tree assessment after he enquired about applying for a dropped kerb. This is because there is insufficient evidence of fault by the Council.
The complaint
The complainant, who I will call Mr X, complains about the Council’s decision to refuse his application for a dropped kerb because of the impact the work would have on a nearby tree. Mr X says the Council should dig a trench to assess if it’s possible to prune the roots of the tree..
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X lives in a conservation area and therefore any application for a dropped kerb is subject to an application to Highways and planning approval.
Mr X sought pre-planning advice from the Council and after consultation with several relevant departments the Council concluded that a planning application would likely be refused. One of the reasons given was that a dropped kerb would likely harm a tree outsider his property.
Mr X asked Highways to carry out a full assessment of the tree. It concluded that whilst the tree was within the minimum required distance, the excavation needed for the dropped kerb would be detrimental to the tree and it would be lost. For this reason, Mr X’s application was refused.
The Council’s policy does allow for trenches to be dug to inspect for the presence of roots in certain circumstances. However, the tree officer has concluded that this is not necessary in this case because the size, species and lean of the tree leaves no doubt that roots will be present.
We do not provide an appeal against the Council’s decision, we only decide if there is evidence of fault in how the Council reached its decision.
I will not investigate Mr X’s complaint, because there is insufficient evidence of fault by the Council. The assessment was carried out by a qualified tree officer who inspected the tree prior to reaching their decision. The Council’s policy allows officers to exercise their discretion when carrying out these assessments. The Council was entitled to use its professional judgment to decide the application was acceptable and the Ombudsman cannot question this decision unless it was tainted by fault. As the Council properly considered the application, it is unlikely I could find fault.
Even if the assessment had resulted in Mr X’s application being accepted, as he lives in a conservation area his application would still be dependent on the outcome of a planning application being approved and the pre-application advice given to Mr X by the Council suggests it would not. If Mr X disagrees with the advice given, he has the opportunity to submit a full planning application, and if it is refused he can use his right of appeal to the Planning Inspectorate.
Final decision
We will not investigate Mr X’s complaint because there is insufficient evidence of fault.
Investigator's decision on behalf of the Ombudsman