Summary: We will not investigate Mr and Mrs Q’s complaint about a council-owned tree on land at the back of their property. This is because there is insufficient evidence of fault by the Council. And Mr and Mrs Q may go to court if their insurance claim is unsuccessful.

The complaint

1. The complainants, who I have called Mr and Mrs Q, complained that Darlington Borough Council refused to cut back or remove a large tree on land at the back of their property. They say it is damaging their property, and is weak and dangerous.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. 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. (Local Government Act 1974, section 24A(6), as amended)
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)

Back to top

How I considered this complaint

4. I considered the information Mr and Mrs Q provided. I considered the Council’s Tree and Woodland Strategy. And I considered Mr and Mrs Q’s comments on a draft of this decision.

Back to top

What I found

Background

5. The Council’s Tree and Woodland Strategy says it will “resist the removal of trees unless there are sound arboricultural or other reasons, eg disease or structural damage”.
6. The courts can decide if a council is liable for the damage to someone’s property and, if so, what compensation should be paid.

What happened

7. There is a tree on land at the back of Mr and Mrs Q’s property. They contacted the Council because the tree had grown large and started to send up roots into their garden. Mr and Mrs Q said the roots had caused significant damage to their patio: the slabs had lifted and cracked causing a trip hazard. They also said they could no longer access their property via their back gate because the roots had lifted the concrete around it.
8. The Council’s tree officer inspected the tree and decided no work was required. Mr and Mrs Q are unhappy the tree officer did not inspect the damage the tree had already done or consider what damage it might do in future. They are also concerned that the tree is weak and dangerous.
9. In response to Mr and Mrs Q’s complaint about the matter, the Council invited them to make an insurance claim. It said it would assess their claim and, if found to be proven, would take appropriate action. Since sending Mr and Mrs Q a draft of this decision, they have made an insurance claim. But they do not think their claim will succeed. They would like the Council to remove the tree.

Assessment

10. We will not investigate this complaint for the following reasons.
11. There is insufficient evidence of fault by the Council. It responded appropriately to Mr and Mrs Q’s concerns by inspecting the tree. Its tree officer decided the tree did not need any work. It is not fault for the Council to follow the professional advice of its tree officer or for it to act in accordance with its Tree and Woodland Strategy.
12. In addition, Mr and Mrs Q have now made an insurance claim. The Council has already said it would assess a claim from them and take appropriate action if it was proven. But if Mr and Mrs Q’s insurance claim is not successful or they are dissatisfied with the outcome, they may go to court regarding the damage to their property. I think it would be reasonable for Mr and Mrs Q to go to court because only the courts can decide if the Council is liable for the damage and, if so, what compensation is payable.

Back to top

Final decision

13. We will not investigate this complaint for the reasons given in the Assessment above.

Back to top

Investigator's decision on behalf of the Ombudsman