Summary: Mr and Mrs X complained about the way the Council handled an issue with a tree on their land. They said the poor communication and delay caused them unnecessary distress and worry. The Ombudsman has found fault with the Council for delaying a site visit. We do not consider this to have caused a significant injustice to Mr and Mrs X.

The complaint

1. Mr and Mrs X complained about the way the Council handled an issue with a tree on their land. They said the poor communication and delay caused them unnecessary distress and worry.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered Mr and Mrs X’s complaint and supporting information and have spoken to them.
5. I have also considered the Council’s response to Mr and Mrs X’s complaint.
6. I have written to Mr and Mrs X and the Council with my draft decision and considered their comments.

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What I found

Legislation

7. Section 154 of the Highways Act 1980 covers situations where a tree overhangs a highway so as to endanger or obstruct the passage of vehicles or pedestrians. It says the Council may issue a notice to the owner of the tree requiring them to lop or cut it to remove the cause of the danger within 14 days of receiving the notice.
8. The Act says that if a person is aggrieved by the notice, they can appeal to a magistrates’ court.
9. It also says that if a person fails to comply with the notice within the specified period, the Council may carry out the work required and recover the costs from the person.

What happened

10. In May 2019, Mr X received a letter from the Council. It stated during a routine tree inspection, it had identified a tree hazard which appeared to be part of Mr X’s property. It said one tree was within falling distance of the highway and recommended further assessment by a qualified contractor.
11. The letter specified it was an informal request for Mr X to seek specialist advice, and have a decision in place within 28 days, in order to resolve the issue. The Council went on to say that if works are not carried out within the specified timescale, it is obliged to issue a formal notice pursuant to section 154 of the Highways Act 1980 to ensure the works take place. It confirmed the notice carries the right of appeal to the Magistrates Court should Mr X be aggrieved with the requirements of the notice.
12. The Council said it had arranged the support of a tree contractor who had been approved by the Council’s Trading Standards.
13. Mrs X phoned the Council to ask what to do next and to request a site visit. The Council responded by email and asked Mrs X to contact the tree specialist referred to in the letter. Mr and Mrs X responded to the Council and questioned the land ownership. Mr and Mrs X chased a response and the Council acknowledged this. The Council said it was awaiting mapping information.
14. A month later, the Council wrote to Mr and Mrs X. It said the letter clearly told them to contact a tree specialist; either the Council-approved one, or their own choice. Mr and Mrs X were unhappy with the Council’s response and said it had not yet been determined who was responsible for the tree.
15. The Council responded and said measurements confirmed the tree was on Mr and Mrs X’s land and it was their responsibility to arrange a tree specialist.
16. Mr and Mrs X continued to dispute the ownership of the land/tree. They said the Council’s initial letter had no validity as it did not clearly identify the tree concerned. They requested the report undertaken by the Council’s tree inspection officer. They suggested that legal services become involved.
17. Mr and Mrs X complained to the Council in July. They complained about the Council’s ‘bullish attitude’ and refusal to meet Mr and Mrs X for a site visit.
18. The Council acknowledged the complaint. It said the land/tree was being investigated by the Highways team. It said if the investigation determined the tree was on unregistered or Council land, the Council would clear the hanging branch.
19. Mr and Mrs X responded to the Council’s letter. They said until this letter, the Council had led them to believe that it was a whole tree that needed removing, not just a hanging branch. They said the whole stress and worry had blighted their summer. They complained the Council never identified the tree and bullied them into contacting the Council-approved tree specialist.
20. In August, the Council met with Mr and Mrs X at their property. The Council confirmed the tree was on Mr and Mrs X’s land and was therefore their responsibility.
21. On 13 August, Mr and Mrs X emailed the Council. They said the Council’s plans were wrong and had not been amended following the site visit. They said they did not accept responsibility for the tree but had arranged their own tree surgeon to assess the tree and remove the hanging branch.
22. On 14 August, the Council responded to Mr and Mrs X’s letter. It said the Council followed correct procedures in terms of its responsibility under the Highways Act. It said the Council had followed the correct procedure where land ownership was disputed.
23. The Council acknowledged that whilst normally land disputes were resolved by checking highway boundary maps, an earlier site visit would have been preferable in this case. It said it would review the procedure for offering site visits.
24. It also acknowledged that the initial letter sent to Mr and Mrs X could have been interpreted as meaning a whole tree needed felling. It apologised for this and said the template had been amended.
25. On 17 August, Mr and Mrs X contacted the Council. They said their tree surgeon had come to remove the branch, but it had already been removed. The Council responded. It said on 15 August, the Council noticed the branch had fallen lower and was an immediate risk to the public. It instructed the Council’s tree contractors to remove it that day. The Council said, although it had removed the branch, it remained of the opinion the tree was the responsibility of Mr and Mrs X.
26. The Council confirmed, as it had not sent Mr and Mrs X a formal notice, the matter would be archived, and the Council will not attempt to recover the cost of removing the branch from Mr and Mrs X.
27. The Council said it was unfortunate there had not been the opportunity to inform Mr and Mrs X of the action prior to their tree surgeon attending on site. As part of my investigation, I asked Mrs X whether they had incurred any unnecessary costs for the tree surgeon. Mrs X confirmed they required work to other trees on their land so it was not possible to calculate whether there had been costs caused by the Council’s failure to inform them of the branch removal.

My findings

28. Mr and Mrs X first received the informal letter advising them of the issue concerning their tree on 7 May 2019. This letter stated if Mr and Mrs X did not seek specialist advice, and have a decision in place within 28 days, the Council would be obliged to issue a formal notice to ensure the works take place. 28 days expired on 4 June. Due to the land ownership dispute, the Council did not issue a formal notice.
29. If the Council had issued the notice, Mr and Mrs X would have had appeal rights and could have disputed the notice through the courts. This may have resolved the issue sooner than mid-August when the branch was removed.
30. As it stands, the land ownership dispute continued until August when the Council visited the site. The Council has acknowledged that an earlier site visit could have resolved the issue sooner. It has reviewed its procedures to address this.
31. Mr and Mrs X said this delay caused them stress and worry. I understand this may have been the case. However, I do not consider three months delay in these circumstances, enough to cause a significant injustice to Mr and Mrs X.

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Final decision

32. I have upheld Mr and Mrs X’s complaint. The Council was at fault for failing to offer a site visit sooner. However, this did not cause a significant injustice to Mr and Mrs X.

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Investigator's decision on behalf of the Ombudsman