Summary: Mr X complained about the Council’s failure to take action over one of its trees which is causing root damage to his garden wall, garage and patio. The Ombudsman should not exercise his discretion investigate this complaint which was received outside the normal 12-month period. This is because it concerns a claim of damage to property through negligence and these are private legal matters which can only be determined by insurers or the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s failure to prevent a tree on its land from causing root damage to his property. He says roots have damaged his garden wall, garage and patio area and he cannot carry out rebuilding work until a barrier is provided to prevent the roots from causing further damage.

Back to top

The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has been given an opportunity to comment on a draft copy of my decision on his complaint.

Back to top

What I found

5. Mr X says his property has been damaged by roots from a large oak tree on Council land adjacent to his home. This has damaged his garden wall, patio and garage and he is concerned that the damage is ongoing. He complained to the Council and he says it should provide a root barrier so that there is no further damage and he can then rebuild his property.
6. Mr X submitted a claim against the Council in 2017. The Council’s insurers denied liability and rejected the claim in April 2018. They identified no additional works for the tree other than a planned crown reduction as part of cyclical maintenance.
7. We do not normally investigate complaints about matters which the complainant was aware of more than 12 months before they complained to us. Mr X could have complained within 12 months of his first complaint in 2017 but did not do so until August 2020. We will not exercise our discretion to consider the matter now because it concerns a claim for damage to property and liability for negligence is a private legal matter which can only be determined by the courts.

Back to top

Final decision

8. The Ombudsman should not exercise his discretion investigate this complaint which was received outside the normal 12-month period. This is because it concerns a claim of damage to property through negligence and these are private legal matters which can only be determined by insurers or the courts.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman