| Report on an Investigation into Complaint No 01/B/15370 against
Isle of Wight Council
19 March 2003
Key to names used
Mr and Mrs Harold - Complainants
Mrs Edwards - Owner of 'Stamford'
'Stamford' - The subject of the complaint
The Fulford Society - A local residents’ group
Mr Tostig - Landscape Contractor employed by Mrs Edwards
Mr Waltham - Chartered Forester and Arboriculturalist
Senlac Limited - Environmental Consultants
Officer A - Tree and Landscape Officer
Officer B - Senior Countryside Officer
Officer C - Former Planning Policy and Environment Manager
Report Summary
Subject
The complainants raised concerns with the Council that their neighbour had
damaged trees which they understood to be subject of a Tree Preservation Order. The
Council had not recently updated the relevant Order and this limited its ability to take
action. The Council did not make adequate records of conditions on site which made
it difficult for it to determine the nature and extent of any damage which may have
occurred subsequently. The Council did not properly follow its own procedure for
assessing the need for further protection of trees on the site. The Council did not
respond to later complaints of damage, and when additional Protection Orders were
confirmed some were not applied promptly, leaving trees unprotected for a further period.
Finding
Maladministration causing injustice
Recommended remedy
That the Council:
(c) ensures that all Tree Preservation Orders relevant to the site in
question are now accurate and enforceable;
(d) ensures that all future complaints of damage at ‘Stamford’
are investigated promptly and in accordance with the Council’s procedures;
(e) identifies a date before which the existing Orders should be reviewed,
and a timescale within which any necessary revisions will be completed;
(f) takes urgent action to protect the woodland area excluded
in error from TPO W/2002; and to protect tree T18 excluded in error from TPO Z/2002;
(g) makes an ex gratia payment to Mr and Mrs Harold of £750;
(h) reviews its procedures to ensure that, as far as possible, the
maladministration I have identified does not recur.
Introduction
1. Mr and Mrs Harold complain that the Council has failed to take
adequate action to protect trees in the vicinity of their home, and that it has failed to
investigate properly alleged breaches of Tree Preservation Orders. Mr and Mrs Harold
feel they have suffered a loss of amenity and that their property has been put at a
greater risk from ground movement as a result of the Council’s actions.
2. One of the Commission’s officers has examined the Council
files, interviewed officers of the Council and visited the complainant.
3. For legal reasons, the names used in this report are not the real
names of the people concerned.[1]
4. The complainant and the Council were invited to comment on a draft
of this report, before the conclusions were written. I have taken account of their
comments in preparing the final text and reaching my conclusions.
Legal and Administrative Background
5. The Council has the discretionary power to protect trees in
its area by the making of Tree Preservation Orders (TPOs). Once an Order is in force
it becomes an offence to cut down, top, lop, uproot or wilfully damage or destroy trees
without the consent of the Council.[2]
6. A TPO will not normally take effect until it is confirmed by the
Council. However, if it appears to the Council that the provisions should come into
force immediately it may include a direction to this effect in the Order. The TPO
then takes effect provisionally on the date specified and continues in force for six
months, or until it is confirmed by the Council if sooner.[3]
7. The Council is required to retain a copy of the TPO, once
confirmed, on deposit for inspection by the public as long as it remains in
force.[4] Government advice to Councils suggests that they should be able to let
members of the public know over the telephone whether or not particular trees are subject
of a TPO within 48 hours of receiving an enquiry.[5]
8. Councils are advised to keep existing TPOs under review.
Government guidance suggests that by properly exercising its powers to vary and revoke
TPOs a Council can ensure Orders are brought up to date at the correct time.[6]
9. Councils have a statutory duty to enforce a TPO and must take
action, as far as is possible and reasonable, to safeguard trees protected by a TPO.
On receipt of allegations that a breach of a TPO has occurred the Authority should
investigate. The Council is required to establish if there has been demonstrable harm
caused to the tree and/or public amenity by the unauthorised works; and if there are any
other ways of remedying the effect of the breach of control before pursuing legal
action. It should advise the person who has brought the breach to its attention of
the outcome of this investigation.[7]
10. In order to bring a successful prosecution where a breach of a
TPO has occurred the Council should have sufficient evidence to show that the defendant
has carried out, caused or permitted unauthorised works; that the tree was protected by a
TPO; and that the works were carried out without consent.[8]
11. The Councils policy is to respond to reports of illegal tree
works by visiting the site immediately if an offence is in progress. Where it is
satisfied that works have stopped but a threat still exists it will normally visit the
site within 48 hours. If there is no immediate threat to trees a visit within two
weeks of a complaint is considered adequate. On receiving a complaint the Councils
Tree and Landscape Officer will check whether there are existing TPOs affecting the site,
or if any consents to works have been granted. If the officer is satisfied that an
offence may have occurred a visit to the property will normally follow. On site the
officer will investigate the allegations made and attempt to determine if illegal works
have taken place and who is responsible for them. In the course of the investigation
the officer is expected to gather evidence which may include taking measurements and
photographs. Any findings should be compiled in a report. The site visit is
then assessed by the Councils Senior Countryside Officer who will decide whether or not
action against the perpetrators should be pursued, and/or if further TPOs are necessary.
12. Many of the Council’s TPOs were old and had not been
recently reviewed. Officer C, a Senior Planning Manager at the time of
the complaint, told the Commission’s officer that the real obstacle to prosecution in
this instance was the age of the TPO; he had been concerned about the age and
condition of the Councils TPOs for some time. They had not been reviewed and
consequently were thought to be of limited use for enforcement purposes.
Investigation
13. The events investigated are those between the first
complaints to the Council in November 2000, and September 2002 when TPO Z/2002 was
made. The investigation does not consider other planning issues relating to the
site.
Background
14. Mr and Mrs Harold live in an area which is known to be at
risk of landslip. They became concerned when their next door neighbour, Mrs Edwards,
started to fell trees on her property 'Stamford'. They were particularly worried
that an extensive removal of trees would contribute to the instability of the land and
that this would be a threat to their property. Mr and Mrs Harold complained to the
Council in the belief that the trees being damaged were protected by a Tree Preservation
Order (TPO). They have complained that the Council subsequently failed to take
adequate action to enforce existing TPOs and to prevent further damage to trees on their
neighbour’s land.
15. Mr and Mrs Harold told the Commission’s officer that in
1978, when they moved into their property, there was canopied woodland at the front and
rear of ‘Stamford’. Mr and Mrs Harold felt that they had suffered a loss
of amenity as a result of damage to the trees. In particular, they were
concerned that the removal of trees along their boundary with Mrs Edwards' land had led to
overlooking from a summer house and deck area at 'Stamford', and it had been necessary to
erect a fence at this point to give partial screening. Mr and Mrs Harold feared that
exposure of their property to south westerly winds and gales in the winter had also
increased since the trees which formerly gave protection were removed. Although at
the time there was no evidence of land slippage, Mr and Mrs Harold were concerned that the
damage at 'Stamford' would add to any existing instability, and may devalue their property
as a consequence. Mr and Mrs Harold said that their relationship with Mrs Edwards
had deteriorated during the period of the Council's involvement. They felt Mrs
Edwards believed a vendetta was being waged against her, and that she acted unreasonably
towards them as a result. Mr and Mrs Harold were of the view that the Council had
contributed to this by its failure to act and because it asked them to supply information
about Mrs Edwards’ actions but then failed to take decisive action against her.
Mr and Mrs Harold felt that they had been put to unnecessary time and trouble for a
prolonged period in pursuit of their complaint.
Tree Preservation at ‘Stamford’ November 2000 to October
2001
16. In November 2000 some trees at 'Stamford' were protected by an
Area TPO made in 1954. This provided, in effect, for protection for any tree on the
site which was over 46 years old as at November 2000.
17. The Council began to receive reports of damage to trees in the
vicinity of 'Stamford' on 7 November 2000, but as the specific location was not identified
it was unable to act. A further anonymous call was received on Friday 10 November,
followed by a call from the Chair of the Fulford Society, a local residents’ group,
complaining of damage to trees at 'Stamford'. Mr and Mrs Harold said that they first
raised their concerns that Mrs Edwards was felling trees close to the driveway of her
property with a local Councillor at about this time. They believed he had passed on
their complaint to the appropriate Council officers but there is no clear record of this
on the Council's files.
18. Officer A, a Tree and Landscape Officer, visited 'Stamford' on
Monday 13 November. Although she made no note of her inspection, Officer
A told the Commission's officer that she recalled finding piles of logs and tree stumps on
the bank at the front of the property. Among the logs she found sections of branch
which she was able to age to approximately 30 years, and from this she deduced that it was
likely that they had come from a tree in excess of 50 years
old. Officer A inspected the tree stumps and counted
the rings, but recalls finding nothing older than 35 years. However, she said that
she was unsure that she had located all the trees which had been felled. Mrs
Harold said that contractors who later removed tree stumps from ‘Stamford’ in
May 2002 told her that these trees had been at least 50 years old.
19. Prior to the visit Officer A checked the Council’s tree
protection records in accordance with normal procedure. She told the
Commission’s officer that she had identified that trees at 'Stamford' were protected,
but had then confused the 1954 TPO with an earlier order from 1950 which applied to
adjoining land. At the time of the visit, and for many months afterwards, Officer A
was therefore of the mistaken belief that only trees over 50 years old at 'Stamford' were
subject of the TPO.
20. There is no report of the 13 November 2000 visit on the Council's
files nor is there any note of the assessment of it by Officer B, a senior Countryside
Officer and Officer A’s line manager. At interview Officer B told the
Commission’s officer that he decided not to take further action on the advice of
Officer A. He said that given the lack of evidence of a breach of the 1954 TPO the
Council would not pursue the matter further. Officer A, however, said that she took
the decision not to proceed with legal action against Mrs Edwards without reference to
Officer B. Officer A decided not to prosecute due to the lack of evidence found on
site. She was also concerned that the TPO would not be admissible in Court because
the plan to the Order was torn and the extent of it could not be accurately
identified. No advice was sought from the Council's legal officers on this
point. Officer B, however, was not convinced that legal action could not proceed for
this reason alone and told the Commission's officer that had sufficient evidence been
available from the site visit he may have recommended that prosecution be sought
regardless of the damaged plan. Officer C, a senior Planning Manager and Officer B’s
line manager at the time, confirmed this view.
21. Although she had already come to the view that Mrs Edwards
could not be successfully prosecuted Officer A interviewed her under caution
on 5 December 2000. In Officer A's view it was important
that Mrs Edwards should fully understand the gravity of any future breach of the TPO, and
she felt a formal interview was an appropriate way to emphasise this. As a result of
the interview Officer A said she was satisfied that Mrs Edwards was then fully aware of
the situation and did not think that any further threat to the trees existed. She
told the Commission's officer that her view was reinforced because Mrs Edwards had
correctly made applications for consent to works between November and December 2000.
As a result Officer A decided that no further protection was required at 'Stamford' at
that time. This decision was not considered or reviewed by Officer B.
22. Officer A did not undertake a full survey of the trees at
'Stamford' at this point as she did not consider it an appropriate use of her time in the
circumstances. She did, however, note that some trees on site might require further
protection. The Council has no record of the condition of trees on the site between
November 2000 and
September 2001, and it cannot therefore accurately say what damage was done to trees,
protected or otherwise, during this period.
23. On 4 January 2001 Mr and Mrs Harold noticed that approximately 30
more trees had been felled on Mrs Edwards' land, this time in the vicinity of their
boundary with 'Stamford'. They say that they notified the Council of this but it
took no action. The Council's records show that the complaint was
received. An e-mail to Officer A dated 4 January 2001 shows that at the time of Mrs
Harold's telephone call Officer B assumed that any works which were ongoing affected only
unprotected trees. He was of the view that since Officer A had already visited the
site there were no further trees which warranted protection and therefore a further visit
was not required.
24. Mr and Mrs Harold said that they reported further concerns
to the Council on 20 February 2001, but it did not investigate or
otherwise respond. Mr and Mrs Harold have records showing a telephone call to the
Council on 20 February, but the complaint is not recorded in the Council’s
files. Officers interviewed had no recollection of the complaint.
25. Following her visits to 'Stamford' in November 2000 Officer
A believed individual trees at the property could be protected and on 8 June 2001 she
undertook a survey prior to making a further TPO. Officer A told the Commissions's
officer that this was not a full survey of the property but considered only those trees
she thought worth protecting. Officer A said that she did, however, walk the whole
site with Mrs Edwards and her contractor Mr Tostig. Officer A recalls that she
noticed some trees had been ring barked at this time, but she did not record this at the
time of the visit. Officer A explained that ring barking is a process which involves
removing a strip of bark around the trunk of the tree and that this damages the root
system and results in the death of the tree. She said that while this practice might
be an acceptable means of controlling the spread of trees which spread suckers from their
roots, this did not apply to sycamore trees which was the species mainly ring barked at
‘Stamford’.
26. Provisional TPO X/2001 was made on 19 June 2001 with a direction
that it take effect immediately. It included 19 trees, mainly situated at the front
of 'Stamford'.
27. During June the Council received representations about the new
TPO. This included a petition from local residents requesting the consideration of
protection for a further 16 trees, and a letter from Mrs Edwards suggesting an additional
tree also be protected. As a result Officer A arranged a further visit to 'Stamford'
on 7 July to assess the trees proposed. When the appointment was
cancelled at Mrs Edwards' request it was agreed that the survey would
take place on 18 August.
28. Mr and Mrs Harold remained concerned that the existing
protection at 'Stamford' was inadequate, and they told the Commission's officer that
although they had requested an Area TPO be made this had been refused by Officers A and
B. Their continuing concerns were brought to the attention of Officer C by a local
Councillor and he decided that an Area TPO was appropriate. At
interview Officer C told the Commission's officer that with hindsight it would
have been better if the order had been made in November 2000. In his view, however,
this would have been an unusual step and would probably have required more evidence that
Mrs Edwards was likely to do further damage than was actually available to officers at the
time.
29. On 13 July 2001 the Council made a provisional Area TPO Y/2001
which protected all the trees at 'Stamford' with immediate effect. The Council
intended that this be a temporary measure until such time as individual trees could be
adequately protected. Officer C told the Commission's officer that, ideally, a
comprehensive survey of the site should have been done at this time but the Council did
not have sufficient resources for this.
30. On 21 July 2001 Mr and Mrs Harold's son said that he saw Mr
Tostig sawing around the trunk of a tree in the wooded area at the rear of
'Stamford'. He did not report this to the Council. Mrs Harold said that she
did raise this matter with Officer C on 1 August 2001, but she was incorrectly advised
that TPO Y/2001 was not then in force. Consequently she did not make a formal
complaint. Mrs Harold says she saw Mr Tostig ring bark a further tree in the
same area on 3 August. Mrs Harold said that Mrs Edwards told her that the
Council had consented to the works but she was not convinced by this and reported the
matter to Officer A. She told the Commission’s officer that she felt Officer A
was reluctant to act, and appeared willing to accept Mrs Edwards' explanation that she and
Mr Tostig were erecting a fence. Officer A said, however, that she was convinced
that this was a serious matter and after telephoning Mrs Edwards she decided to visit
'Stamford' that day. Officer A asked a Planning Enforcement Officer to accompany her
on the visit as a 'second pair of eyes' and this delayed her visit by a couple of
hours. Officer A said that although she and her colleague walked most of the site
they were unable to find evidence of recent ring barking. The only part of the
property which was not inspected was that land which the officers considered
inaccessible. Mr and Mrs Harold did not agree that parts of the site were
inaccessible to inspection. The officers did find a large sycamore tree which
initially they felt may have been recently ring barked, but on closer inspection they came
to the view that, as the area had been overgrown by ivy, the damage was several weeks
old. In the absence of evidence of ring barking since TPO Y/2001 came into force,
Officer A concluded no offence had occurred and no further action was required.
31. Mrs Harold said that the officers failed to find evidence of
fresh ring barking because they were looking in the wrong place, and had they asked her,
she would have been able to identify the position of the tree she believed to have been
damaged. When interviewed Officer A said that it had not occurred to her to question
Mrs Harold at the time. She recalled that she was conscious of not wanting to
inflame matters between the neighbours, and in the absence of other evidence she did not
think witness statements were appropriate, it being possible that Mrs Harold had been
mistaken about the ring barking. Officer C told the Commission's officer that he
thought Officer A should have questioned Mrs Harold. Officer B agreed that Officer A
could have done this, but was not of the view that she should have in the circumstances.
32. Officer B said that he recalled discussing the visit of 3 August
2001 with Officer A, but there is no record of the assessment in the Council's
files. Mrs Harold said that on 20 August Officer C asked if she would swear on
oath that she had witnessed the ring barking on 3 August, and she agreed to do this.
Officer C did not recall the details of the conversation but told the Commission's officer
that he may have made such a request. Officer C remembers discussing further action
with officers of the Council's Legal Department, and he remained of the view that, even
if Mrs Harold testified, there was still insufficient
evidence to support a prosecution. Officer C said that the lack of a comprehensive
site survey and other records was a further concern when considering legal action, but
even had that information been available he was not convinced there was sufficient
evidence of damage to trees subject of the TPOs.
33. Officer A visited 'Stamford' on 17 August to assess the
additional trees, but Officers B and C decided that, from then on, the site should be
considered by a specialist arboricultural consultant. Both officers were of the
opinion that this was necessary because of Mr and Mrs Harold’s growing lack of
confidence in Officer A.
34. On 7 September the Council engaged Mr Waltham, a Chartered
Forester and Arboriculturalist, to undertake a survey of 'Stamford'. Mr Waltham was
at this time engaged in a similar survey for The Fulford Society. Officer B said
that he was not aware of this when Mr Waltham was appointed. Mrs Harold, however,
told the Commission’s officer that she had advised Officer C that Mr Waltham was
working for the Society during a telephone conversation on 6 September. Mrs
Edwards objected when Mr Waltham entered her property to conduct his survey, as he had no
similar right of entry in connection with his work for The Fulford Society. She was
therefore concerned that information gained as a result of the Council survey might also
be used to inform the Society survey. Following Mrs Edwards’objection the
Council asked Mr Waltham to stop work and appointed Senlac Environmental Consultants
Limited on 17 September to do the tree survey instead.
35. The Council received the Senlac report on trees at 'Stamford' on
25 September. Following the survey Officer B asked the consultants to comment on evidence
of recent ring barking on site. On 21 October Senlac replied:
"I can confirm that of all the trees that showed evidence of ring
barking the works appear to have been carried out recently. I estimate that most of
the ring barking has been undertaken within the past two years and that some has been
carried out within the past twelve months. However, none of the cuts are fresh and
it does not appear that any of them have been made within the past four months."
36. On 31 October the Council’s Regulatory Appeals Committee
considered the protection of trees at 'Stamford'. It had sight of Officer A's report
of 17 August and that of Senlac Limited dated 25 September, but deferred its decision
pending a site visit. Committee members visited 'Stamford' on 23 November. At
a further meeting on 30 November the Committee decided:
To confirm TPO X/2001, modified to exclude one tree;
That a new TPO be created for a further nine trees;
That trees at the north of the site be protected by a Woodland Order;
That Area TPO Y/2001 should not be confirmed.
Tree Preservation since November 2001
37. The officers did not make a new TPO for the nine trees as
instructed by the Committee.
38. Woodland Order TPO W/2002 was made on 11 June 2002, but the plan
to this Order was inaccurate. Officer A told the Commission’s officer that in
preparing the plan she referred to surveys of woodland adjoining 'Stamford' on each side,
and joined the southern edges of these instead of referring to the more recent Senlac
survey of the site. The effect of this error was to exclude part of that area
intended to be protected. The Order may now have to be re-made before referral to
Committee for confirmation, and part of the woodland area remains unprotected.
39. Mr and Mrs Harold complained to the Council on 12 March 2002
about further damage to trees they believed to be protected by a provisional Order which
was due to expire. The day before they had written seeking advice from Officer A
about protected trees on their own property, which were overhanging 'Stamford' and which
Mrs Edwards was threatening to damage. Officer A told the Commission’s officer
that she had already arranged a meeting with Mrs Edwards to discuss a Consent for Works
application on 18 March and that she had intended to address Mr and Mrs Harold's concerns
then. However, Mrs Edwards cancelled the appointment, and although Mrs Harold
telephoned Officer A about these matters again in May she did not arrange a further
visit. The further damage reported was not, therefore, investigated.
40. Mr and Mrs Harold told the Commission’s officer that they
believe ring barking has continued on the northern part of the site since November 2001,
but they did not report this to the Council as they knew the trees remained unprotected.
41. A further provisional order, TPO Z/2002 came into effect on 11
September 2002. This order comprised trees already subject of TPO X/2001 and other Orders
in the locality. The nine trees identified for protection by the Regulatory Appeals
Committee on 30 November are also covered by this Order. One of these, tree
‘T18’, was omitted from the Order in error. Officer B told the
Commission's officer that this Order represented an attempt to simplify matters in the
area, by bringing the existing protection on individual sites into one Order.
Conclusions
42. Regulations require the Council to keep records of TPOs
(paragraph 7) and Government guidance suggests that Orders should be kept under review and
brought up to date where necessary (paragraph 8). The Council has not adhered to
this guidance with the result that in this case the plan to the 1954 Area TPO was damaged
and the extent of the Order could not be accurately
identified (paragraph 21). It was also of such an age
as to limit its use for enforcement purposes (paragraph 13). Had the Council
reviewed the TPO provisions at ‘Stamford’ it is reasonable to expect that it
would have recognised that the protection afforded was inadequate. The failure to
maintain an accurate and up to date record of TPOs is maladministration.
43. Officer A did not make any note or written report of her
investigation at ‘Stamford’ in November 2000 (paragraph 19). At the time
of the visit and for a considerable period afterwards Officer A confused the TPOs relevant
to the site, and although she found some evidence indicating unauthorised works, her
inspection was not sufficiently thorough to confirm this beyond doubt (paragraph 19).
It seems to me, therefore, that there were serious shortcomings in the
Council’s investigation of this matter in November 2000 and this too was
maladministration.
44. Officer B did not adequately assess the November 2000
investigation and this was contrary to the Council’s procedure for dealing with
illegal works to trees (paragraphs 11 and 20). As a result the need for enforcement action
and further protection of trees at ‘Stamford’ was not properly considered and
was maladministration. Officer B did not agree with Officer A that the existing TPO would
not have been admissible in any prosecution, but he has said that there was insufficient
evidence to support further action regardless. I am not convinced, however, that he could
reasonably come to this view in the absence of accurate records and given the apparent
shortcomings in the Council’s investigation. It seems to me that had the matter been
properly reported and assessed in accordance with the Council’s procedure Officer B
might reasonably have been expected to recognise the deficiencies of the investigation and
this may have resulted in a different outcome.
45. The Council’s procedure requires that the Senior Countryside
Officer should decide if any additional tree protection is required (paragraph 11).
Yet Officer A made this decision and the matter was not considered by Officer B (paragraph
21). This was contrary to the Council’s own procedure and
maladministration. The decision not to make arrangements for further protection was
based on the belief that there was no further threat to trees at ‘Stamford’
(paragraph 21). However, other factors were not adequately considered.
It should have been evident to the Officers involved that the 1954 TPO no longer offered
adequate protection. Officer A had identified trees on the site which might
warrant further protection, but there was no comprehensive survey and the extent of the
protection required was not otherwise recorded. It is likely that additional
protection at this early stage might have prevented much of the problems that were to
follow. While I cannot conclude that Officer B’s decision would have been
different to that taken by Officer A, that further TPOs were not properly considered at
this stage was maladministration.
46. The Council failed to investigate Mr and Mrs Harold’s
complaints of 4 January and 20 February 2001, and this was maladministration.
Officer B decided not to act on 4 January because he was unaware that Officer A believed
there were trees on site which still warranted protection (paragraph 23). This
misunderstanding could have been avoided if the Council’s procedures had been
followed after the site inspection in November 2000. The Council had previously
taken the view that additional protection was not necessary as there was no further threat
to the trees, but it seems to me that it could not reasonably continue to rely on this
view without investigating subsequent complaints. I cannot conclude that had the
complaints of January and February been investigated a further TPO would necessarily have
resulted. But an opportunity was lost and the trees at ‘Stamford’ were not
further protected until the following June.
47. Officer A visited ‘Stamford’ in June 2001 and noticed
evidence of ring barking (paragraph 25) but she made no record of it. This limited
the Council’s ability to identify accurately any similar damage which occurred
later. When considering the complaint of 3 August 2001 Officer A did not inspect the
whole of the site (paragraph 30), and did not question Mrs Harold. If Officer
A was unable to identify the damage complained of it would have been prudent to ask Mrs
Harold, and had she done so the matter would have been put beyond doubt. These
failings too were maladministration.
48. It appears likely that the Council was aware that Mr Waltham was
employed by the Fulford Society when it engaged him to complete a survey at
‘Stamford’. That it was necessary to engage a further consultant following
Mrs Edwards’ complaint was unfortunate. This may have led to delay in referring
the matter to the Council’s Regulatory Appeals Committee, but this delay was not
great (paragraph 34) and, given that the trees at ‘Stamford’ were at this time
protected by Area TPO Y/2001 did not amount to maladministration.
49. Officers failed to implement the Regulatory Appeals
Committee’s decision on 30 November 2001 to create a
new TPO to protect a further nine trees (paragraph
37). These trees remained unprotected until September 2002 when TPO Z/2002 came into
effect (paragraph 39). This was maladministration.
50. The Woodland Order required by the Committee was
unnecessarily delayed until June 2002 and was not then prepared accurately, so that some
trees intended to be included remain unprotected (paragraph 38). This was
maladministration.
51. The Council did not investigate Mr and Mrs Harold’s
complaint of 12 March 2002, and did not adequately respond to their further telephone call
in May. This was maladministration.
52. What injustice did the Council’s maladministration
cause? Due to the Council’s failure to keep accurate records and in the absence
of a comprehensive site survey the extent of trees felled or damaged at
‘Stamford’ between November 2000 and September 2001 cannot be accurately
determined. The findings of Senlac suggest that ring barking took place in the
twelve months prior to September 2001, and for the majority of this time the trees were
not adequately protected. Much of the ring barking took place in the area later
protected under the Woodland Order, and it is possible that had the Council considered the
need for protection earlier, some of this damage might have been prevented. However,
there is no certainty that the trees close to the boundary of Mr and Mrs
Harold’s property which were removed were subject of the existing TPO or would have
been subject of protection had the Council acted differently. I cannot, therefore,
conclude that Mr and Mrs Harold have suffered a loss of amenity as a result of
maladministration.
53. That felling and damage has occurred during this period seems
beyond doubt. The Council did not respond properly to complaints and as a result
missed key opportunities to consider the necessity for additional measures. As a
result there is considerable uncertainty as to what might have happened, and Mr and Mrs
Harold
have been caused an understandable sense of outrage that the Council apparently failed to
protect the trees at ‘Stamford’.
54. There is no evidence that tree felling has caused ground movement
leading to damage to Mr and Mrs Harold’s property at this time. Similarly,
concerns that their property would be damaged as a result of increased exposure to the
wind, have not been borne out to date. But Mr and Mrs Harold’s property is in
an area known to be liable to instability and it seems likely there has been considerable
damage to the trees at ‘Stamford’. It is possible that the Council
could have acted to prevent some of this damage so Mr and Mrs Harold have been caused a
greater degree of anxiety and uncertainty about the future than might otherwise have
occurred. In addition, they have been put to unnecessary time and trouble in
pursuit of this complaint.
55. I do not doubt that Mr and Mrs Harold’s relationship with
Mrs Edwards has suffered since November 2000. While the Council’s requests for
information might have exacerbated this I cannot see how it could have acted
differently. Given the neighbours’ conflicting views some deterioration in
their relationship was to be expected, and I do not think this was a result of
maladministration by the Council.
Finding
56. For the reasons given in paragraphs 42 to 47, 49, 50 and 51 I
find that there has been maladministration causing the injustice described to Mr and Mrs
Harold in paragraphs 53 and 54. To remedy their injustice I recommend that the
Council:
(a) ensures that all Tree Preservation Orders relevant to the site in
question are now accurate and enforceable;
(b) ensures that all future complaints of damage at ‘Stamford’
are investigated promptly and in accordance with the Council’s procedures;
(c) identifies a date before which the existing Orders should be reviewed,
and a timescale within which any necessary revisions will be completed;
(d) takes urgent action to protect the woodland area excluded in error
from TPO W/2002; and to protect tree T18 excluded in error from TPO Z/2002;
(e) makes an ex gratia payment to Mr and Mrs Harold of £750;
(f) reviews its procedures to ensure that, as far as possible,
the maladministration I have identified does not recur.
J R White
Local Government Ombudsman
19 March 2003
Local Government Act 1974, section 30(3)
Town and Country Planning Act 1990, section 198
Ibid, section 201
Town and Country Planning (Trees) Regulations 1999, Regulation 3
Tree Preservation Orders: A Guide to the Law and Good
Practice (2000)
Ibid
Ibid
Tree Preservation Orders: A Guide to the Law and Good
Practice (2000)
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