Summary: We will not investigate Mr X’s complaint about Council‑owned trees near his business premises. The core claimed injustice from Mr X’s complaint is a claim of damage caused by the trees to the premises. Property damage claims are matters for the Council’s insurers, and ultimately for the courts to decide if insurers deny liability. There is not enough evidence of fault by the Council in the timing of its tree works, or fault or sufficient injustice caused to Mr X by the works done, to warrant investigation.

The complaint

1. Mr X has a business in premises with Council-owned trees nearby. He complains the Council:
1. delayed in doing work to reduce the size of the trees;
2. did not reduce the trees by the 30 percent amount discussed, and not enough so they comply with Council guidelines.
2. Mr X says the trees’ roots have damaged the business premises’ drains. He also says tree branches overhang and block the building’s fire exit, and that tree debris falls on to the property. Mr X wants the Council to class the line of trees as a hedge, and to cut them back so they are no higher than the business premises.

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The Ombudsman’s role and powers

3. 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)
4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I considered information provided by Mr X and the Council, and the Ombudsman’s Assessment Code.

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My assessment

6. Mr X’s complaint to the Council was initially about the damage he says the trees’ roots have done to the business premises’ drains. The Council suggested his concern was a matter he should raise with its insurers. The Council then cut back the trees, but Mr X did not consider the reduction was sufficient. This raised a further issue about the Council’s management of the trees.
7. The core injustice issue Mr X has claimed is the damage done by the tree’s roots to his property’s drains. This is a claim that the Council, through the management of its trees, is liable for that damage. This is a legal issue. The Ombudsman cannot decide questions of legal liability for property damage. This is an issue for the Council’s insurers in the first instance. If the insurers deny liability for the damage, it would then be a matter for the courts to consider. It is reasonable for Mr X to pursue this part of his complaint through court if required, as that is the body which can provide a legal ruling. The court can also make binding orders for redress, unlike the Ombudsman who may only make recommendations.
8. Mr X says the Council delayed in trimming the trees. But the evidence indicates the Council responded to Mr X’s report and did the works within a few months. There is not enough evidence of fault by the Council in the time it took to deal with this matter.
9. Mr X also considers the trimming of the trees was insufficient. It is for councils’ tree experts to decide how much a tree should be reduced. The usual professional approach is to remove about a third of the canopy at most. Larger reductions may damage or kill most trees. I recognise Mr X disagrees with what officers decided was appropriate tree works. But where a council has completed work which, in its officers’ professional judgement is appropriate to maintain a tree, we would be unlikely to find fault. Furthermore, the trees being taller than Mr X would have liked would not cause such a significant personal injustice to him which would warrant us investigating.
10. In his complaint to us but not to the Council, Mr X says there are overhanging tree branches blocking the fire exit to his business premises. If so, Mr X may use his rights under Common Law to remove these limbs back to the boundary line, and offer them back to the Council. We will not investigate this part of the complaint because Mr X has that reasonable route available to resolve it. He may wish to take professional advice before doing any work to the trees.
11. Mr X says the trees are a hedge, meaning they must be further reduced in height. He has not yet made this argument to the Council. The Anti-Social Behaviour Act of 2003 includes provisions for the control of hedges. If Mr X wishes to pursue this argument, he would need to raise it with the Council first. Once he has done this, if the Council does not agree, this would be a legal dispute about the status of the trees as a hedge. There is a legal route under the 2003 Act Mr X may use to seek a ruling on this and pursue further action regarding the trees. It would be reasonable for Mr X to use that route because it is only a court which can make the necessary legal determination of whether the trees form a hedge as defined by the 2003 Act.

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Final decision

12. We will not investigate Mr X’s complaint because:
• any property damage claimed to be caused by the Council’s trees is a legal matter for its insurers or ultimately for the courts to decide, and it is not unreasonable for him to pursue that claim through the court, should the insurers reject it;
• there is not enough evidence of fault by the Council the time it took to do the tree works, or in its decision on how much to reduce the trees; and
• the trees remaining taller than Mr X would have liked is not a sufficiently significant personal injustice to him to warrant us investigating; and
• he has rights to remove any overhanging branches affecting his business premises under Common Law rights; and
• if he wishes to claim the trees are a hedge, that would be a legal argument under the Anti-Social Behaviour Act of 2003 which it would be reasonable for Mr X to put before the courts if the Council disagrees.

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Investigator's decision on behalf of the Ombudsman