Summary: Mr X complains the Council is failing to meet its responsibilities relating to damage to his property. An insurance claim is ongoing. The Ombudsman will not investigate as we have not seen evidence of fault in the Council’s actions. If the insurer rejects Mr X’s claim, he can pursue the matter in court.

The complaint

1. Mr X says the Council is refusing to meet its responsibilities by refusing to repair damage to his property. He says this iss caused by the roots of two trees on Council land close to his home.
2. He says:
• the trees causing damage are on Council Property.
• according to its policy document, the Council is responsible for correcting the damage
• the Council is failing in its responsibilities when it passes responsibility for corrective action onto the injured party

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The Ombudsman’s role and powers

3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A (6) and 34B (8), as amended
4. 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

5. I considered the information provided by Mr X and discussed his complaint with him. He commented on the draft version of this decision.

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What I found

6. Mr X says roots from trees on Council land are damaging his property. He says the Council has accepted responsibility for damage caused by its trees and he wants the Council to repair the damage.
7. The Council has met with Mr X. It completed a claim form which Mr X signed. It passed the form to its insurers.
8. The Council’s insurers wrote to Mr X explaining they have appointed a loss adjuster who will contact him to inspect the damage and progress the insurance claim. I have not seen any evidence of fault in this course of action.

Assessment

9. Mr X says the Council is responsible for the damage and should carry out the repairs. I understand he does not see why he should have to deal with the insurance claim. He also says he told the Council that he had no intention of getting involved with insurance claims. And the Council led him to believe the form needed to be signed so the Council could claim of its own insurance.
10. The Council is responsible for any damage caused by trees growing on its land. However, it is up to Mr X to make a claim if he considers his property has been damaged. We would not expect the Council to pursue a claim against itself on Mr X’s behalf. I do not consider that in requiring Mr X to make an insurance claim for damage is administrative fault on the Council’s part.
11. The Ombudsman investigates complaints about administrative fault. We cannot decide legal liability in claims of damage to property. Only insurers or the courts can decide these matters. The Council’s insurers are processing a claim from Mr X. Should this be successful the Council will probably be required to maintain the trees to prevent further damage.
12. If the claim is not successful, Mr X can ask the Court to establish liability for the damage. This is not something the Ombudsman can decide.

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Final decision

13. I will not investigate this complaint because we have not seen any evidence of fault in the Council’s decision to pass Mr X’s claim for repairs to his property on to its insurers.

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Investigator's decision on behalf of the Ombudsman