maladministration?

[scarebit72]

Last March I submitted an application to the LA to remove 15 trees covered by a woodland order but in the garden of a residential property. The site is adjacent to a woodland also covered by the same order. 10 of the trees have visible honey fungus rhizomorphs and the other 5 are in poor condition (crown dieback, bark peeling off) and in close proximity to trees colonised with HF. The trees are in very close proximity to a residential building (unoccupied at present, my client doesn’t want to rent it out until this is resolved), an LV powerline and a private road. Two of the trees shed large branches pre-application damaging my client’s car.

The TO had visited the site in Feb 2014 and identified HF on 1 tree and advised my client to have a survey carried out. The TO visited the site after the application was made and agreed we could fell 8 trees ‘because of their condition’, no mention was made of HF. When I queried this with the case officer, an additional site visit by the TO was requested. His findings after this were that we could fell 6 trees (?) and that there were no signs of HF. No reason has been given for the change in number of trees to be felled (I have asked).

This application has dragged on for almost a year, the LA has asked for a bat survey (which we have declined to do), promised to determine by certain dates and then not done so and twice asked us to revise the application at one point saying ‘we will determine your application if you agree with the tree officer’s findings.’

We appealed to the PINs for non-determination at the beginning of Nov. A determination allowing us to fell the 6 trees turned up mid-Dec in the form of an Article 5 Certificate. When I challenged this, the LA admitted that there was no specific reason for issuing this but have refused to revoke it. Their response was that they issue these automatically on all refused applications which I know is not true as I had another application refused by the same LA in Dec which was a standard decision notice not an Article 5, additionally the case officer’s report to the panel advises that a A5C should be issued as my client had previously threatened legal action in the event of any damage incurred due to the delays in this process.

We are now appealing the decision and the A5C. The LA sent me their appeal documents this week including a copy of an internal email from the tree officer to the case officer sent last May before the second survey confirming that there are visible HF rhizomorphs but it is probably not one of the aggressive species. This information has never been disclosed to me or my client and the case officer’s report to the planning committee in Dec does not disclose this either instead giving the TO’s recommendation that there is no HF on site.

 

Having spent a year scratching my head and wondering if I had imagined the rhizomorphs that I saw I am now somewhat annoyed by this.

 

The good news is that I am not worried about the outcome of the imminent appeal or my ident skills anymore.

The bad news is that I am out of pocket on this as I charge my clients a set rate for writing a report and submitting a TPO application – I thought this would be straightforward as the TO had flagged up the presence of HF initially. My client has paid a small amount more (which doesn’t cover the hours spent on emails, phonecalls, crying into my copy of Mynors, gin and I will likely have to attend the PINs site visit – the above is a much shortened version of the farce) but I do not feel justified in charging him more fees given the circumstances. I also want to see it to the end anyway.

 

I am waiting for the results of the appeal but am inclined to take it to the Ombudsman on the grounds of maladministration. Has anyone else done this? Is it worth it? Or will it just take up much more of my time for little result? Is there anywhere else to go? I feel that this information has been deliberately hidden as throughout the whole application process the LA has seemed to be deliberately procrastinating and very keen for us to revise our application to reflect the TO’s findings but without advising us as to what their findings on the condition of the trees are or why we should revise it other than that the TO doesn’t believe that there is HF present. It also seems as if they have issued the A5C just to cover themselves knowing that the trees are colonised by decay fungi. I have already complained twice during this process to the Head of Planning with no result. It also seems that the decision-making committee have been misled re the condition of the trees.

Also, would I be justified in invoicing the LA for my time as I feel that if the TO’s findings had been disclosed last May this would have been over a long time ago. The appeal is going to run on until at least April.

 

Oof needed to vent

[Gary Prentice]

I don't think the council can issue article five certificates anymore. Didn't they go with the last changes in the regulation?

[Chris at eden]

Gary is correct A5's are no longer issued due to changes in the 2012 regs. Furthermore, all the old ones have been revoked again by the 2012 regs.

 

You can't invoice the council as they won't pay but if you go for a hearing with the PINS inspector you may be able to get costs if you win.

 

Good luck.

[Gary Prentice]

Not much help, but shouldn't these authorities actually know the laws and regulations that they are applying?

[scarebit72]

A5's can still be issued in Wales but only in the interests of good forestry or outstanding amenity vlaue. Thanks.

[Gary Prentice]

Being on the Capel Manor forum, I think we all assumed you were based down London way, or at least I did.

[TGB]

Sounds like someone in the LA doesn't like your client/ you. And is deliberately making life awkward. As to maladmin' - it sounds like they couldn't organise a ****up in a brewery.

[Paul in France]

If the LA has not followed the law or its own written policies it is at risk of a finding of maladministration against it. If you can demonstrate that this is the case I would advise that you write to the responsible Head of Department clearly stating your case and indicating what you want done to rectify it - eg amount of compensation with itemised account. Ask for a copy of the Council's formal complaints procedure and state that you are considering complaining to the Ombudsman but want to offer the opportunity for that to be avoided. Copy that to the LA's Chief Executive. If you get no satisfaction, write again to the Chief Executive, copy to the Head of Department, and state you will take a case to the Ombudsman if they don't settle. In all of this be clear and polite and request responses within 14 days and follow it up in writing if you haven't received a response. In the meantime you can try to discuss the matter informally with the Ombudsman by phone - how they respond depends very much on who you speak to/volume of work etc but they can be helpful and may indicate informally if they think you have a case. It is a hassle and depends on how much you are out of pocket if you want to pursue it. At the end of the day the Ombudsman can order the LA to pay you compensation, issue you with an apology and make public the findings on the case or a combination of these - so there is some clout to make the LA respond properly. Good luck!

[kevinjohnsonmbe]

Any update on how it has progressed (or not as the case may be)?

[Prunus]

This is the advice I would follow. The Ombudsman should find in your favour I would have thought but the problem is you will be dealing with someone with little specialist knowledge. Make sure you have as much technical detail as possible both with approaching the Council and the Ombudsman.