Summary: The Ombudsman will not investigate this complaint that a Council-owned tree is causing damage to the complainant’s property. This is because there is insufficient evidence of administrative fault in the way the Council reached its decision to retain the tree, and it is reasonable to expect the complainant to pursue court action if she believes the Council is liable for the damage.

The complaint

1. The complainant, whom I refer to as Miss B, says her driveway has been significantly damaged by a Council-owned tree, with parts of the paving lifted by several inches. She says the tree and her driveway have not been inspected by the Council for more than four years, so she disagrees with the Council’s decision not to remove the tree. Miss B says she is unable to repair her driveway until the tree is removed, and she believes the Council has certain duties, including a duty of care, to ensure the tree does not cause damage or injury to people and property.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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. We 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)
4. In that regard, 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 administrative fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. Finally, 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

6. I have considered:
• Miss B’s complaint to the Ombudsman;
• The Council’s final response to Miss B’s complaint;
• Miss B’s comments on a draft version of this statement;
• The Council’s tree maintenance policy.

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What I found

The Council’s tree maintenance policy

7. In summary, the Council’s policy says:

“Under Section 41 of the Highways Act 1980 Surrey County Council, as the Highways Authority, has a duty to maintain the highway. The public highway is made up of the road (or carriageway), the footway (or pavement or footpath) and the verge. Surrey County Council is responsible for all trees and vegetation growing on highway land.

Our team of tree specialists check our trees on a three- or five-year cycle. Their checks include:

• locating and recording structural defects
• checking for disease
• assessing the tree's condition.

The tree is given a risk score out of 5, with 5 being the highest risk. The score takes into account the number of users of the road and reflects the potential risk of harm or damage that could be caused if any part of the tree were to fall down.

Our aim is to keep as many trees as possible. We do not remove trees with minor defects. Only trees that are dead, diseased or may collapse are removed. We may remove parts of a tree that have died or where there is a very high risk of falling branches causing harm or damage due to their size.”

and,

We carry out work on trees where there is a history of accidental damage to property and claims against the council. We do this every two or four years to a set programme. The programme is aimed at minimising risk to property”.

8. The tree outside Miss B’s property was last inspected in November 2016, when no defects or safety concerns were identified, and it was pollarded in October 2019. It is the opinion of the Council’s Arboricultural Team Manager that the tree is healthy and there is no need to carry out a further inspection/works at the current time.

Assessment

9. I appreciate Miss B disagrees with the Council’s decision not to remove the tree, but the Ombudsman cannot question that decision unless there is evidence of administrative fault in the way it was made. The Council appears to have carried out monitoring and maintenance works in accordance with the schedule stated in its tree maintenance policy, and has reached a professional judgement on whether the tree should be removed. I find there is insufficient evidence of administrative or procedural fault to warrant the Ombudsman pursuing the complaint.
10. Furthermore, the Ombudsman cannot reach a judgement on whether the Council is liable for the damage to Miss B’s property. This is a matter for insurers, and ultimately the courts, to decide. Similarly, whether a council has a duty of care to someone is a matter for a court of law, not the Ombudsman.
11. In addition, only a court could determine what action must be taken (e.g. removal of the tree) if the Council is found to be liable for the damage. The Ombudsman has no powers to enforce such a remedy.
12. I therefore consider it reasonable to expect Miss B to pursue the matter in court, so the Ombudsman would not investigate the complaint for this reason too.

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Final decision

13. The Ombudsman will not investigate Miss B’s complaint. This is because there is insufficient evidence of fault in the way the Council reached its decision to retain the tree, and it is also reasonable for Miss B to pursue the matter in court.

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Investigator's decision on behalf of the Ombudsman