Summary: The Ombudsman will not investigate Mr B’s complaint about the Council’s decision not to remove a tree it owns. Further consideration of the complaint is unlikely to find fault by the Council or achieve the outcome Mr B wants.

The complaint

1. The complainant, whom I shall call Mr B, complains a Council owned tree in a neighbouring property is causing damage and preventing him from enjoying his property. Mr B is concerned the tree will fall as it is leaning severely and growing through his fence. Mr B wants the Council to remove the tree.

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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. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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)
5. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered Mr B’s complaint and information provided by the Council. I sent a draft decision to Mr B and considered the comments he made in reply before I made my final decision.

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What I found

7. Mr B has explained he bought his house 30 years ago. There is a tree in a neighbour’s garden that is now over forty feet tall. The neighbour’s property is owned by the Council.
8. Mr B says the tree is growing through his fence and the roots are damaging his garden. Mr B is concerned the tree could cause subsidence to his property or could fall. He wants the Council to remove it.
9. In response to Mr B’s complaint, the Council has inspected the tree and decided it is healthy, structurally sound and in a conservation area. The Council has said it will not remove the tree but said it would carry out pollarding works to the tree. The Council says Mr B will not permit access to the tree to allow pruning works, because he wants the tree removed. Mr B says he has not refused access, but his neighbour owns the land the Council would need to use. Mr B only has access rights and needs constant access because of the nature of his employment. Mr B has told the Council it would need to check with this neighbour if he would allow access to the tree.
10. The Council has acknowledged it did not send a response to Mr B when he raised his complaint at Stage 1. The Council has said it would like to apologise to Mr B for the apparent delays and lack of a response. Further consideration of this part of Mr B’s complaint would not achieve any more for him.
11. While Mr B wants the Council to remove the tree, this is not an outcome the Ombudsman can achieve. The tree belongs to the Council, which has inspected it and decided it is healthy and structurally sound. It is not the Ombudsman’s role to make any decisions about the condition of the tree and there are no reasons to criticise the Council for the way it has made its decision.
12. If the tree does cause damage to Mr B’s garden or property, he will have a remedy in the courts. The Ombudsman would not investigate a complaint about damage because only the courts can decide if the Council has been negligent in its management of the tree and is liable to Mr B for any resulting losses he claims.

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Final decision

13. The Ombudsman will not investigate this complaint. This is because further consideration of the complaint is unlikely to find fault by the Council or achieve the outcome Mr B wants.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman