Summary: Mr X complains on behalf of this mother about the Council’s refusal to remove a tree from the footway outside her house. The Ombudsman will not investigate this complaint. We have not seen evidence of fault in the way the Council decided not to remove the tree. And further investigation is unlikely to lead to a different outcome.

The complaint

1. The complainant, whom I shall call Mr X, complains on behalf of his mother. He says a tree in the footpath outside his mother’s house (which he owns) causes:
• uneven paving which is dangerous
• leaf and fruit fall which make a slippery mess on the footpath which is dangerous and a mess in his garden
• branches from the tree meet branches from the tree opposite, obstructing high side delivery vans etc. He says a van recently hit a branch causing it to fall which is dangerous
• cracks in the garden wall
• he and his mother to be disadvantaged because neither he, nor anyone else can park outside his house when they visit
2. Mr X also says the Council are discriminating against he and his mother because they cannot install a driveway because the tree is in the way. He says this will create problems when he eventually sells the house.
3. He wants the tree removed.

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The Ombudsman’s role and powers

4. 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 further investigation will lead to a different outcome
• we cannot achieve the outcome someone wants

(Local Government Act 1974, section 24A (6), as amended)

5. 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)

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How I considered this complaint

6. I have considered the information provided by Mr X, including the Council’s responses to his complaint and discussed his concerns with him.
7. I have also considered the Council’s published tree management strategy.
8. Mr X commented on the draft version of this decision.

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What I found

9. Mr X owns a property which his mother lives in. There is a tree on the footpath in front of the house. He says that staff at a local hospital use the road for free parking. Some years ago, the council introduced parking controls further along from his house to stop cars causing obstructions. Mr X says this just pushed the non-residents parking problem further up the road outside his property.
10. He asked the Council to remove the tree because of the reasons described in paragraph 1 above.
11. The Council told Mr X it has inspected the tree and it is in good health. It says it has also inspected the footway outside his property and arranged for a small area of block paving to be repaired. It also says should future safety inspections identify root disruption that meets intervention levels, it can expose the tree roots and prune them.

Assessment

12. 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.
13. The Council is the highway authority. It is responsible for maintaining amenity trees for the whole community. The tree management strategy says it will:
• Carry out a full assessment of trees on public land every 5 years
• It will prune trees only when there is a risk to public safety, to abate an actionable nuisance, to mitigate the risk of building subsidence and in according to good arboricultural practice.
14. Mr X says the tree puts safety at risk and restricts access to properties. He states the parking issues in the road are caused by the Council’s inadequate parking restrictions. And because of the tree, he cannot install a driveway which would benefit him and other residents by providing off-road parking for residents and visitors to his property.
15. The Council’s response to Mr X confirm it has inspected the tree and the highway. It is satisfied there is no public safety risk.
16. Mr X also claims the Council is discriminating against him and his mother by preventing them from installing a drive.

17. The Council’s published criteria for assessing applications for vehicle crossovers (dropped kerbs) says:

“The Council will consider tree removals associated with cross over applications only where the result is supported by good arboricultural practice. The applicant will be expected to fund the removal of the tree and pay compensation for its loss. The level of compensation will be calculated using the CAVAT (Capital Asset Valuation for Amenity Trees) valuation system. The Council retains the right to reject any cross over application if the construction necessitates the removal of a healthy, established tree.”

18. In this case the Council has inspected the tree and confirms it is healthy. Also, Mr X advised the tree has been in place for 40+ years.
19. Mr X’s remaining concerns are about the mess caused by fallen leaves and fruit on the public footpath and in his garden. The tree management strategy says:

“Excessive leaf fall: this is a seasonal problem generally localised to a short period of the year. Residents are expected to clear any undesirable leaf litter falling on their properties themselves or at their expense; leaf litter on publicly owned footways and highways will be addressed by the Borough’s Street Cleansing contractors.”

and

“Fruit fall: this is a seasonal problem generally localised to a short period of the year. Residents are expected to clear any undesirable fruit falling on their properties themselves or at their expense; fallen fruit on publicly owned footways and highways will be addressed by the Borough’s Street Cleansing contractors as notified.”

20. The Ombudsman, when dealing with complaints, has no power to question the merit of decisions which have not been affected by any administrative fault, even though Mr X may disagree with it. We appreciate that individuals will have different views about decisions, but decision making is the role of the Council officers and members, not the Ombudsman. If a council has followed the correct procedures, taken all relevant matters into consideration, and come to a decision that takes these facts into account, the Ombudsman cannot question the decision.
21. In this case the Council has inspected the tree and the highway. It is satisfied the tree is healthy and is not a risk to public safety. Mr X disagrees with the decision, but I have not seen any evidence of fault in the way it came to its decision.

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Final decision

22. I will not investigate this complaint. I have not seen any evidence of fault in the way the Council made its decision not to remove the tree outside Mr X’s property. It is therefore unlikely that further investigation will lead to a different outcome. Nor can we achieve the outcome Mr X is looking for.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman