The Ombudsman's final decision
Summary: We cannot investigate Mr X’s complaint about the Council’s handling of and decision on his planning application for works on trees covered by a Tree Preservation Order, or how it dealt with his complaint. Mr X used his right of appeal to the Planning Inspectorate to challenge the Council’s decision, which takes all matters related to that application outside our jurisdiction. We will not investigate the Council’s complaint-handling processes where we are not investigating the core issue giving rise to the complaint.
The complaint
In 2018, Mr X sought and received permission from the Council to fell a tree protected by a Tree Preservation Order (TPO). The permission did not require the tree to be replaced. Mr X complains the Council has: refused permission for him to fell three further TPO trees in 2022, using reasons inconsistent with the ones they applied in 2018; delayed dealing with his complaints and questions then failed to answer them in their responses; been rude to him during the complaints process.
Mr X says the matter has caused him considerable anxiety and stress from the lack of proper responses and rudeness of staff. He says he has wasted time and effort in the complaint process. He wants the Council to: provide a full and properly considered response to him to explain its decision; meet with him to discuss that response; provide a meaningful apology at the meeting for the rude staff; provide a written account of that meeting; pay him for his wasted time, stress and anxiety.
The Ombudsman’s role and powers
We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspectorate acts on behalf of the responsible government minister. (Local Government Act 1974, section 26(6)(b), as amended) The Inspectorate considers appeals about: delay – usually over eight weeks – by an authority in deciding an application for planning permission; a decision to refuse planning permission; conditions placed on planning permission; a planning enforcement notice.
The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
How I considered this complaint
I considered information from Mr X, relevant online planning documents and the Ombudsman’s Assessment Code.
My assessment
We cannot investigate Mr X’s complaint. That is because Mr X appealed against the Council’s decision to the Planning Inspectorate. The use of that appeal takes the entire planning matter outside our jurisdiction.
I recognise Mr X’s key concerns in his complaint to us are the inconsistency of the Council’s decisions between 2018 and 2022, its complaint handling and responses, and the conduct of some of its officers. I accept the Inspectorate appeal will not consider these issues; its appeal decision states this. However, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, we have no jurisdiction to investigate. The principle set down in this court judgement, referenced above in paragraph five, applies wherever a complainant has used a formal right of appeal other than through court proceedings, including a Planning Inspectorate appeal. This limitation on our jurisdiction applies even if the appeal did not or could not provide a complete remedy for all the injustice claimed. So we cannot investigate the Council’s involvement in the planning matter because Mr X has used his formal Planning Inspectorate appeal right.
I recognise Mr X says the Council’s decisions on the replacement of removed TPO trees between 2018 and 2022 have been inconsistent. But council officers are entitled to reach different decisions on other trees in different positions without one or other of those decisions involving fault. Each case is judged on its own merits and facts. In any event, there are no longer two Council TPO works decisions here, one from 2018 and the other from 2022, which can now be said to be contradictory. The 2022 decision on Mr X’s application is no longer a Council decision. That decision fell away when Mr X appealed, which required the Inspectorate to considered the matter afresh. The 2022 decision is now one made by the Planning Inspectorate.
Mr X complained to the Council about its actions after the Inspectorate rejected his appeal. That complaint process is separate from the appeal process. But we do not investigate councils’ internal complaint-handling processes in isolation where we are not investigating the core issue giving 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.
Final decision
We will not investigate Mr X’s complaint because: he used his right of appeal to the Planning Inspectorate against the Council’s TPO application decision, which takes the appealed planning matter outside our jurisdiction; and we will not investigate councils’ complaints processes where we are not investigating the core issue giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman