Summary: Mr and Mrs X complained about the Council’s refusal to remove a tree from the highway which is close to their property boundary. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns a complaint about matters outside the normal 12-month period for receiving complaints.

The complaint

1. The complainants, whom I shall call Mr and Mrs X, complain about the Council refusing to remove a tree which is in the highway near their property boundary. They say they have been complaining since 2009 but the Council will not accept that it is causing sufficient damage to warrant its removal.

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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)

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How I considered this complaint

4. I have considered all the information which Mr and Mrs X submitted with their complaint.

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What I found

5. Mr and Mrs X say that a tree belonging to the Council is causing damage to the pavement outside their home and that its roots have spread under their garden. They complained to the Council as long ago as 2009 and the Council has refused to remove the tree since its first responses in 2010. The Council says that the tree is an amenity tree and is healthy and can be maintained to restrict its size.
6. Mr and Mrs X say that a neighbour tripped over the part of the footway near the tree which is raised due to root spread. The Council has inspected the footway and says that the damage is currently below its threshold for intervention. If the footway becomes dangerous it will take action to make it safe.
7. The Ombudsman will not normally investigate complaints about matters which the complainant was aware of more than 12 months before bringing it to our attention. We would not exercise discretion to consider it now because claims about damage to property or personal injury are legal matters which can only be determined by insurers or the courts.

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Final decision

8. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns a complaint about matters outside the normal 12-month period for receiving complaints.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman