Summary: We will not investigate this complaint about trees outside Mr Q’s property. This is because there is insufficient evidence of fault by the Council. And Mr Q may make an insurance claim against the Council for any damage the trees do and, if necessary, go to court if the claim is unsuccessful.

The complaint

1. The complainant, who I have called Mr Q, complained that Dudley Metropolitan Borough Council will not remove two trees outside the front of his property. He said they have already damaged his garden and he believes they have also damaged his property.

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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’. 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)

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How I considered this complaint

4. I considered the information Mr Q provided. I considered the information the Council provided. And I considered Mr Q’s response to a draft of this decision, including a letter of support from his Ward Councillor.

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What I found

Background

5. Someone may make a claim against a council’s insurance if they believe its trees have damaged their property.
6. If an insurance claim is unsuccessful, someone may go to court. 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 are two trees close to the front of Mr Q’s property. He said their roots had lifted his front garden and were growing towards his property.
8. Mr Q complained to the Council. It inspected the trees and cut back some branches. It also decided to put some flexi pave material over the roots in the pavement. Mr Q said this would not address the problem of the roots beneath his property.
9. Mr Q is unhappy the Council did not cut back the trees’ roots. He believes the roots have already damaged his property and is concerned about future damage. He would like the Council to cut down the trees.
10. Mr Q’s Ward Councillor accepts the Council found no significant defects with the trees. However, he said it failed to mention their root growth and the problems associated with that.
11. Both Mr Q and his Ward Councillor believe it would be unreasonable for Mr Q to go to court. Mr Q said he cannot afford to do so.

Assessment

12. We will not investigate this complaint.
13. The Council responded appropriately to Mr Q’s concerns by inspecting the trees before deciding what action it would take. I recognise this is not the action Mr Q and his Ward Councillor would like it to take. But there is insufficient evidence of fault by the Council to justify an investigation.
14. In any event, Mr Q may make an insurance claim against the Council for the damage he believes the trees have done to his property. If his insurance claim is not successful, he may then go to court. Mr Q does not think it would be reasonable for him to go to court and he said he cannot afford to do so. However, we cannot decide liability. That is a matter for the courts. So I think it would be reasonable for Mr Q to go to court because only it can decide if the Council is liable for the damage to his property and, if so, what compensation is payable.

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Final decision

15. We will not investigate Mr Q’s complaint for the reasons given in the Assessment.

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Investigator's decision on behalf of the Ombudsman