Saturday, 7 February 2009

Protected trees unlawfully felled - Tree Preservation Order sham and planning officer blunders

Page Contents
  1. What happened
  2. The evidence the Local Government Ombudsman conceal, the council maladministration the Local Government Ombudsman condone, and the council officer's lies the Local Governemnt Ombudsman peddle
  3. Conclusions and Comments
  4. Photographs
What happened

September 1999. Carlisle City Council makes Garlands Hospital Tree Preservation Order (TPO) covering 227 trees. The TPO and Policy E18 of the council's Local Plan seeks to protect amenity trees from development.   

September 2000 to October 2004. Carlisle City Council grant a number of planning permissions for residential development at the former Garlands Hospital. The developer, Story Construction Ltd. (Story Homes) applies for a series of consents to fell protected trees, 35 in total. The council grants consent to fell 24 trees without any replanting conditions, and 11 trees with replanting conditions, but fails to enforce the replanting conditions.

In April 2004 the council granted consent to fell 6 TPO trees subject to replanting replacement trees in the next planting season, and a landscape scheme to be submitted by November 2004. Later in July 2004 the council granted consent to fell 9 TPO trees subject to a landscape scheme for replanting to be submitted by 23 July 2004. No replacement trees were planted. Replacement trees should have been planted by the end of March 2005. The council failed to take any enforcement action to require the developer to replace any of these TPO trees.

The developer applied to crown thin a tree (T22), but the council officer granted consent to fell it in error. The council tried to cover up the error up by claiming the council officer had agreed that the tree could be felled. But there was no file record of this. It is also contrary to Department of Environment guidance for a council to give a decision that substantially alters the work applied for.

The developer applied to fell 2 yew trees (T160 and T161), and the council officer granted consent to fell 2 yew trees (T161 and T162), but one of them was not a tree the developer had applied to fell. The council had granted consent to fell the wrong yew tree. The developer felled the 2 yew trees they had applied to fell (T160 and T161). As a result, the developer unlawfully felled one of the yew trees (T160). Rather than admit their mistake, the council tried to cover it up. The Tree Officer, Charles Bennett, stated the felling application was amended to fell T161 and T162, and T160 was felled to build an access ramp to the building. But there was no file record of any amendment to the felling application, and there is no access ramp to the building. The developer's approved plans clearly showed the location of the trees, and they were some distance from the access to the building. No replacement yew trees were planted. Recently 1 yew tree has been planted. The council has taken no action to enforce the replacement of the 2nd yew tree.

Two TPO trees (T41 and T44) situated on either side of a new entrance into the development were felled without consent. The plans approved by the council (under their planning permission) show the 2 trees are not within the footprint of the new entrance, nor do the plans indicate that these 2 trees are to be removed, although the plans do indicate that other trees are to be removed.

April 2005. Resident notifies council of the felling of T41 and T44. The council attempt to mislead the resident into believing the trees were lawfully felled. The Tree Officer wrote the 2 trees were removed to accommodate the new entrance. That was incorrect. The approved plans showed the trees outside the footprint of the entrance. Later the Local Plans & Conservation Manager, Chris Hardman, wrote the trees were felled for health reasons and as a consequence of the implementation of planning permission. Due to the impact on underground services and in relation to loss of light, both were inspected on site and found that one was rotten and the other had 80% die back in the crown. This statement was incorrect and a deliberate attempt to cover up the true facts.

Trees T41 and T44 did not prevent the developer from constructing the entrance or installing services. Nor was there any contemporaneous file record of any inspection of the trees, or that the trees were rotten or had dieback. There are contemporaneous file notes of inspections of other TPO trees in the vicinity, but not T41 and T44. There is no file record of a date of inspection of T41 & T44, nor a record of any request for these trees to be inspected. The planning permissions also included planning conditions to ensure the protection of retained trees, which included these TPO trees.

A length of beech hedge (adjacent to trees T41 and T44) along the frontage of Sycamore Lane had also been grubbed out by the developer. The approved plan noted that this hedge was to be retained and strengthened. The council attempted to mislead the resident into believing that the beech hedge had been removed to implement the planning permission. The Tree Officer wrote the beech hedge has also been removed as part of the development to allow for the new entrance. This statement was a deliberate attempt by the Tree Officer to cover up the true facts. Part of the beech hedge was removed to allow for the new entrance, but the remainder of the beech hedge was not to be removed. The approved plan clearly states that the beech hedge along Sycamore Lane on either side of the new entrance was to be retained and strengthened.

Another tree ( T1961) had been felled without consent; the stump showed evidence of butt rot. The Town & Country Planning Act 1990 permits the felling of a TPO tree that is dying, dead or has become dangerous. But the Act also requires the landowner to plant a replacement tree at the same place as soon as is reasonable. No replacement tree had been planted. A replacement tree should have been planted at the beginning of the planting season in October 2004.

Another tree (T23) was removed without consent, but the developer claims this was windblown and thus exempt from consent.

August 2005. The resident submits formal complaints to the council on the grounds that council officers erroneously gave consent for the felling of protected trees; failed to take action over the unlawful felling of protected trees; and failed to enforce replanting conditions of protected trees or statutory obligations to replant protected trees. These complaints were investigated by the Local Plans and Conservation Manager, who concluded that there had been delays, but these were not unacceptable, and there had been no contravention of the Tree Preservation Order.

September 2005. Resident requests referral of the complaints to a Board of Arbitration of local councillors in accordance with the Council's complaints procedures. Council officers ignores repeated requests for a Board of Arbitration.

December 2005. Resident refers complaints to the Local Government Ombudsman.

August 2006. Local Government Ombudsman Investigator, Richard Corney, records evidence of maladministration on 2 accounts: (1) the consent to fell T22 (incorrectly referred in the letter as T21) when the application was to crown thin T22 and (2) the consent to fell T161 and T162 when the application was to fell T160 and T161. But the inept Investigator also erroneously stated he was not aware that the developer has taken any steps to remove the tree [T22] when in fact this tree had been felled, and he was shown the location of T22 when he made an inspection. The inept Investigator goes no to state no injustice flows from this, and these errors have not, on the face of it, caused lasting damage and I do not see that there is much that can be done about what has happened.

The Local Government Ombudsman Investigator perversely finds that trees T41 and T44 were felled in accordance with the planning permission, when the facts do not support this, and the documentary evidence shows to the contrary that these trees were unlawfully felled. The Investigator also fails to mention anything about the failure of the council to enforce replanting conditions and the statutory requirement to replant TPO trees that have been felled lawfully or otherwise.

The Investigator concludes no useful purpose would be served by continuing the investigation and proposes to discontinue the investigation and close the complaint. Resident makes complaint to the Deputy Ombudsman, Neil Hobbs, about the Investigator. LGO Investigator had misrepresented the facts, concealed and ignored evidence of maladministration causing injustice, and failed to follow LGO guidance.

September 2006. Deputy Ombudsman declines to uphold the resident's complaint against LGO Investigator and finds no fault. But perversely the LGO reverses their earlier decision and decides to continue the investigation.

May 2007. Local Government Ombudsman report reverses their earlier decision and finds maladministration causing injustice, but fails to recommend remedies in accordance with LGO guidance. Contrary to their earlier letter, the Local Government Ombudsman report finds that trees T41 and T44 were removed without permission, but the LGO misrepresent the facts and wilfully conceal damning evidence of maladministration. The LGO find the council at fault in respect of felling consents relating to trees T22, T160, T161 and T162, but again conceal incriminating evidence of maladministration.

The report mentions the council omitted to include replanting conditions in felling consents, and recommends that if permission is granted for felling protected trees on the basis of disease, replacements should be requested . But the report fails to recommend the council to take any action to enforce replanting conditions where felling consents were granted on condition of replanting with trees or where there is a statutory requirement to replant.

The evidence the Local Government Ombudsman conceal, the council maladministration the Local Government Ombudsman condone, and the council officer's lies the Local Government Ombudsman peddle

The Local Government Ombudsman report states that an officer [Investigator] of the Commission has examined the council's files. What the report does not say is that the Investigator and the Local Government Ombudsman concealed evidence contained in those files of maladministration and deliberately failed to disclose that evidence in the LGO's report.
 
The TPO file records that officers of the council gave consent to fell 35 TPO trees; of these 24 have no replanting conditions (and there is no record as to why there is no replanting condition); 11 have replanting conditions, but no replanting has been carried out bar 2 trees. A further 3 TPO trees were unlawfully felled; 2 TPO tree were windblown; another 12 TPO trees felled were deemed to be exempt from felling consent, and 4 TPO trees were felled under a planning approval. A total of 54 TPO have been felled, that is 24 % of the total TPO trees (see Appendix A for details). The Local Government Ombudsman report conceals these facts.

There is no need for a TPO tree to be felled, or consent granted for it to be felled, unless it is either dying, dead or has become dangerous. A dead tree is easily recognised; the symptoms of a dying tree can often be seen; but it is often impossible to ascertain whether a tree is dangerous without carrying out auger borings of the trunk to ascertain the extent of any decay/rot. A competent arboriculturalist (Tree Officer) would do this. The council failed to do this. Instead, if there is any evidence of decay, the council officer grants a felling consent or deem the tree to be exempt from felling consent, without knowing for certain the extent of the rot/decay and that the tree is dangerous. As a result, council officers have been responsible for the felling of 54 TPO trees (24% of the total). Had the council employed a competent arboriculturalist to take auger borings, it is likely that a fraction of these 54 TPO trees would have needed to be felled.

The planning permissions included planning conditions to ensure the protection of retained trees, which included most of the TPO trees. The conditions required that existing trees to be retained shall be protected by a suitable barrier erected at a distance from the trunk or hedge specified by the local planning authority .... and .... protective fencing shall be erected around the canopy areas of the major trees identified on the proposed layout plan. The developer did not comply with these conditions, and the council failed to enforce them. As a result, some TPO trees were damaged and later died, and other TPO trees were unlawfully felled. The Local Government Ombudsman omits to mention these facts in the report.  

The Local Government Ombudsman report fails to refer to Policy E18 of the council's Local Plan, and failed to take account of it in their report.

Policy E18 of the council's Local Plan states that trees which contribute to amenity will be protected by means of a tree preservation order.... particular attention will be given to trees that are on sites where there are proposals for development, to ensure not only that the significant trees are protected, but that the development works and proposed buildings do not prejudice the future of the trees.....the City Council will therefore seek to ensure that any future development preserves the trees within the existing grounds and parkland landscape, and also the amenity of the wider rural area....if it is subsequently found that some trees need to be felled for the purposes of good management, the provisions of the tree preservation order can secure their replacement, if appropriate, therefore ensuring continuity of tree cover.

It is quite clear that council officers failed to uphold Policy E18. Council officers have allowed 54 TPO trees to be felled (24% of the total) in less than 8 years after making the TPO. Had planning permission not been granted for development, it is highly likely that most of the 54 TPO tress felled would not have been felled. The Local Government Ombudsman conceal these facts.

Policy E18 states that if some TPO trees need to be felled for the purposes of good management, the TPO Order can secure their replacement, if appropriate, therefore ensuring continuity of tree cover. But council officers failed to uphold this provision. Council officers failed to enforce replanting conditions of felling consents, failed to enforce the statutory requirement to replant trees that have been unlawfully felled or are exempt from consent, and granted consent to fell TPO trees without replanting conditions, and without reason. The Local Government Ombudsman report conceals this breach of Policy E18, although the report does mention that the council omitted to include replanting conditions in felling consents.

The Local Government Ombudsman's published guidance states that where an injustice has been caused by maladministration, we seek a remedy that would, so far as possible, put the complainant back into the position he or she would have been in but for the fault .... and ...we aim to get things put right if we find they have gone wrong. It is quite clear that things have gone wrong. Council officers have allowed the felling of a significant number of protected trees contrary to Policy E18. To make matters worse the inept council officers failed in some cases to include replanting replanting conditions, and in other cases failed to enforce replanting conditions, or the statutory duty to replant. It is not possible to put back the trees that have been felled, but it is possible for the LGO to recommend that the council take action to ensure replacement trees are planted to ensure continuity of tree cover. The replanting of replacement trees is clearly in the public interest. But the Local Government Ombudsman does not abide by their own guidance, and fails to make such a recommendation.

The Local Government Ombudsman report manipulate the facts in favour of the council by concealing evidence that reveals council officers' lies and deceit. For instance, an application was made to crown reduce tree T22, but the council officer erroneously gave consent to fell tree T22. The government guidance on this is quite clear, it states the Local Planning Authority must decide the application before them; they should not issue a decision which substantially alters the work applied for. The Local Government Ombudsman report does not mention this fact. Instead, the LGO report says the council's Tree Officer believes that the tree must have been found to be diseased on the site visit as it is the only one in a line of trees to be felled... and ...there would have been no benefit to the developer in felling it unless it was necessary. This statement is a lie and deceit. Tree T22 was one of 9 trees in a line, plus 2 adjacent trees, all of which were felled. This tree and the other 10 trees that were felled were in close proximity to the development, and blocked light to the buildings. The developer benefited from removing trees that blocked light into the windows of the building. The Local Government Ombudsman report fails to mention these facts, and wilfully conceals this evidence.

The Local Government Ombudsman defines maladministration as including making misleading or inaccurate statements. But when evidence is given that council officers deliberately made inaccurate or misleading statements, the LGO conceal these facts. The Local Government Ombudsman report found that the council granted consent (in error) to fell the wrong tree; an application was made to fell trees T160 and T161, but the council officer gave consent to fell trees T161 and T162 (the LGO report refers to trees A, B and C). But what the LGO conceal is that the council's Tree Officer attempted to cover up the error and mislead the resident into believing that no mistake had been made.

The Tree Officer wrote T160 was felled due to its location, this being where the access ramp to the building has been built. This statement was a lie. T160 was not felled so that an access ramp to the building could be built. There are no access ramps. The site plan approved under the planning permission clearly shows the location of T160. It is some distance away from the access points into the building and the new path linking those access points. The felling of T160 was not required to implement the planning permission. The Tree Officer also wrote that the application to fell trees T160 and T161 was later amended to felling T161 and T162. This was another lie. There is no documentary record on the TPO file of any amendment to the felling application. And the Local Plans & Conservation Manager wrote T160 has been felled with consent. Another lie. The Council gave consent to fell T161 and T162, it did not grant consent to fell T160. The biased Local Government Ombudsman conceals the council officers lies, deceit and misleading statements, and deliberately fails to mention them in the report.  

The Local Government Ombudsman defines maladministration as including incorrect action or failure to take action, delay, or making misleading or inaccurate statements. But when the Local Government Ombudsman is given evidence of this, the LGO fail to mention it in their report and conceal the evidence. For instance, the Local Government Ombudsman report found that trees T41 and T44 were removed without permission. The Tree Officer wrote that these trees were removed to accommodate the new entrance into the development. This was incorrect. The approved plans showed the trees outside the footprint of the entrance, and the trees were not marked on the plan to be removed. The planning permission also was subject to conditions to ensure the protection of retained trees. Thus, the Tree Officer's statement was incorrect and misleading, but the Local Government Ombudsman conceals these facts.

The Local Plans & Conservation Manager wrote the trees were felled for health reasons and as a consequence of the implementation of planning permission. Due to the impact on underground services and in relation to loss of light, both were inspected on site and found that one was rotten and the other had 80% die back in the crown. This statement was incorrect and a deliberate attempt to cover up the true facts. Trees T41 and T44 did not prevent the developer from constructing the entrance or installing services. Nor was there any contemporaneous file record of any inspection of the trees, or that the trees were rotten or had dieback. There are contemporaneous file notes of inspections of other TPO trees in the vicinity, but not T41 and T44. There is no file record of a date of inspection of T41 & T44, nor a record of any request for these trees to be inspected. The planning permissions also included planning conditions to ensure the protection of retained trees, which included these TPO trees. The Local Government Ombudsman report conceals this evidence.

The Local Government Ombudsman report refers to an e-mail from a council officer who allegedly inspected the trees and confirming that they were terminally diseased. But the Local Government Ombudsman report fails to disclose that the date of the e-mail was in August 2005, over 4 months after the resident had reported the felling of the trees. The LGO report confirms that the council officer was confused about the the identity of the trees in question...and... in fact the trees he inspected were at another part of the site. But the LGO report does not disclose that the Investigator's earlier letter had stated that the council officer never inspected T41 and T44 .. and ..another officer who did carry out felling on the site says that when he visited to carry out work, the two trees in question had already gone. The Local Government Ombudsman's report tried to conceal that the developer had employed the Council's Works Department to carry out felling of TPO trees, although the report does conclude that ... the trees were removed without permission.

In the absence of any evidence that T41 and T44 were dead, dying, or dangerous, there is only one conclusion the LGO should have made, and that was T41 and T44 were unlawfully felled, and council officers deliberately tried to mislead the resident into believing the trees were lawfully felled, and failed to take any legal or enforcement action over the unlawfully felling of two protected trees. Council officers attempted a cover up and failed, the Local Government Ombudsman tried to do likewise, and also failed.

The Local Government Ombudsman then tries to water down the significance of the council's maladministration. The LGO report quotes the council's Tree Officer who stated that had the developer applied for permission to fell the trees, it is likely that it would have been granted anyway as the species involved (a silver birch and a sycamore) are not of great importance. But what the inept Local Government Ombudsman failed to mention is that trees are included in a TPO because they merit protection. If they were not of great importance, they would have been excluded from the TPO when the TPO was made in 1999. The TPO comprised 227 trees, of which 63 were sycamores and 6 silver birches. It is irrational, perverse, and unhinged to say that a TPO tree is not of importance, and even more incredulous to imply that 30% of the TPO trees are not of importance, and permission would be given to fell them. The statement of the Tree Officer, Charles Bennett, merely undermines his credibility, and shows that the council's TPO is a sham. The Local Government Ombudsman's report conceals this evidence.

Conclusions and Comments

The Council's Tree Preservation Order No 148 (Garlands Hospital) is a sham. The TPO and Policy E18 purport to protect trees that enhance the amenity of an area, particularly on sites where there are proposals for development. But this does not happen. Instead council officers permit the felling of 54 protected trees (24%) of the total trees in the TPO. Inept, incompetent, and disreputable council officers treat the TPO with contempt, ignore the council's tree protection policies, and try to cover up their errors and blunders with lies and deceit. These are the actions of officers who have no integrity.
The Local Government Ombudsman finds maladminisration causing injustice, but deliberately conceals other incriminating evidence of council maladministration, lies and deceit.

Photographs



The above photograph shows TPO tree T227, an oak tree. An application was made to fell T277. The council granted consent to remove some lower branches but not consent to fell. The developer, Story Construction Ltd, then carried ground works around the tree resulting in the formation of a lagoon. Oak trees do not like to stand in water. The result was the tree died and was subsequently felled. Despite planning conditions to ensure the protection of retained trees, including T227, these were ignored by the developer, and the council officers failed to enforce them. The Local Government Ombudsman Investigator just shrugged his shoulders when showed this.



The above photograph shows tree T227 today. You can just see the old stump in the foreground in the centre of the photograph. This is the site of just one of the 54 TPO trees that have been felled. There is a statutory obligation on the owner to plant a replacement tree as soon as reasonably possible after felling. You can see no replacement tree has been planted. The council have not taken any action to enforce the statutory replanting requirement, and the corrupt Local Government Ombudsman connive with the council and fails to recommend the council enforce statutory obligations.



The above photograph shows the new entrance into Twickenham Court. On either side of the entrance stood TPO trees T41 and T44 which were unlawfully felled. This was done so that the existing beech hedge could be replaced with metal railings. You can see the beech hedge in the background. The beech hedge extended along the whole frontage of Sycamore Lane adjoining the development site. The approved plans showed that the beech hedge would be retained and strengthened. The developer, Story Construction Ltd grubbed out the beech hedge.

There is a statutory obligation on the owner to plant replacement trees as soon as reasonably possible after felling. You can see no replacement trees have been planted. The council have not taken any action to enforce the statutory replanting requirement, and the corrupt Local Government Ombudsman connive with the council and fails to recommend the council enforce statutory obligations.



The above photograph shows works in progress for the laying of a sewer pipe. The tree in the centre of the photograph is TPO tree T152. The Head of Planning Services, Alan Eales, wrote these works are necessary to re-route the sewer and do not require planning permission. They are not construction works relating to the housing development and therefore not covered by planning conditions relating to the protection of trees. This statement is incorrect, contradictory, and more deceit. The sewer is a private sewer until adopted by United Utilities. A private sewer requires planning permission unless approval for it had been granted under another planning permission for residential development. The sewer took foul water/sewage from the Senator Homes development. Either the construction of the sewer is unauthorised development, or it is subject to existing planning conditions requiring the protection of retained trees.

The Head of Planning Services ignored breaches of planning requirements and the council's Policy E18 on the protection of TPO trees. In addition, the Head of Planning Services made the decision not to uphold the council's Policy E18 or enforce planning requirements on a matter in which he had declared an interest. The contractor employed to carry out the work was Story Construction Ltd, and the Head of Planning Services had declared an interest in Story Construction Ltd.



The above photograph shows a closer view of the works in progress laying a sewer pipe. It also shows that the council's policy on protected trees is nothing more than a sham.




The above photograph was taken in the autumn during the course of development work. The developer filled in an open ditch and carried out ground works close to the trees resulting in water logging of the area. There were planning conditions to ensure the protection of retained trees, including TPO trees, but the planning officers failed to enforce them. Five of the trees shown in the foreground were felled, but only one of these trees had butt rot.



The above photograph shows the same view as the previous photograph after felling five of the trees and completion of the development.

Appendix A - List of TPO trees felled

T7, T8, T10, T11, T12, T18, T20, T21, T22, T28
T36, T37, T38, T67, T74, T75, T76, T77, T78, T79
T81, T90, T91, T92, T93, T94, T96, T98, T117, T118
T136, T141, T161, T193, T178, T183, T184, T189, T41, T44
T160, T23, T196, T149, T19, T120, T113, T95, T57, T64
T224, 225, T227, T157
Total = 54