Summary: Mr and Ms X complain the Council has failed to deal with intrusive vegetation from its land which has damaged their property. The Ombudsman will not investigate the complaint because the complainants have the right to challenge through the courts the Council’s decision that it is not responsible.

The complaint

1. The complainants, who I refer to as Mr and Ms X, say the Council’s failure to control vegetation, particularly ivy growth, on its land has caused damage to their property. They say the Council should take responsibility for past damage and take action to prevent further damage.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)

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How I considered this complaint

4. In considering the complaint I reviewed the information provided by the complainants, including the Council’s and its insurance company’s response to their claim. I gave Mr and Ms X the opportunity to comment on my draft decision.

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What I found

5. In 2017 Mr and Ms X purchased their property. At the time of buying they sought comments from the Council on the issue of problem vegetation on adjacent public land which had been flagged as an issue by their surveyor. The Council said it could not respond at the time because its aboriculturist was on leave.
6. Mr and Ms X purchased the property and subsequently asked the Council to clear the vegetation, apply herbicide to prevent re-growth and for its proposals on how to address the damage already sustained to their property.
7. The Council passed the matter on to its insurers who, after some delay, told Mr and Ms X that it denied liability on behalf of the Council. The insurers noted Mr and Ms X’s pre-purchase survey had referred to damage to the boundary wall which, as purchasers, they appeared to have accepted, and said there was no evidence the damage had been caused as a result of vegetation belonging to the Council. The insurers and the Council advised Mr and Ms X to seek legal advice if they wanted to pursue matters.

Assessment

8. The restriction highlighted at paragraph 3 of this statement explains that generally we will not investigate complaints where the complainants have the right to challenge a council’s actions through the courts.
9. In this case there is a dispute about who is responsible for damage caused to Mr and Ms X’s property. A decision on this matter is one for the courts and not the Ombudsman to decide and as we would reasonably expect the complainants to make use of this alternative remedy the complaint falls outside our jurisdiction and will not be investigated.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because the complainants have the right to challenge through the courts the Council’s decision that it is not responsible for damage to their property.

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Investigator's decision on behalf of the Ombudsman