Birmingham City Council (19 017 170)
Category : Environment and regulation > Trees
Decision : Closed after initial enquiries
Decision date : 24 Mar 2020
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Mr X’s complaint that a Council owned tree damaged his fence. This is a matter for the courts to decide.
The complaint
- Mr X complains a Council owned tree damaged his fence. He wants the Council to remove the tree stump, dig out the roots and repair the fence.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
- I considered the information provided by Mr X and the Council’s responses to his complaint.
What I found
- Mr X complained to the Council that one of its tenants planted a tree on his boundary 30 years ago. He told the Council to trim back the tree as it was blocking light and damaging his fence.
- Following inspections, the Council decided to cut down the tree. Mr X wants the Council to pay for the stump and roots to be removed and repairs to his fence.
- Mr X’s complaint is, in effect, that the Council has been negligent in allowing a tree on its property to damage his fence. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. Also, only a court can decide if a council has been negligent and what damages must be paid.
- We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. Therefore, we would usually expect someone in Mr X’s position to seek a remedy in the courts, directly or through his insurers.
Final decision
- The Ombudsman will not investigate this complaint. I have seen no exceptional reason Mr X cannot claim on the Council’s insurer or seek a remedy in court for the work and repairs he is seeking.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman