Summary: Mrs X complained about the Council’s refusal to remove a tree which is close to her property boundary and causing root damage. We should not exercise discretion to investigate this complaint. This is because it concerns a claim about damage to property which can only be determined by insurers or the courts.

The complaint

1. Mrs X says a tree on Council land next to her boundary is causing damage from roots encroaching on her property. She says the Council said it would remove the tree in 2019 but changed its mind and refused to do so in 2020. She wants the Council to remove the tree to prevent further damage.

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The Ombudsman’s role and powers

2. 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)
3. 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. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I have considered all the information which Mrs X submitted with her complaint. I have also considered the Council’s response. Mrs X has been given an opportunity to comment on a draft copy of my decision.

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What I found

5. Mrs X says a Council-owned tree is causing root damage to her property. She is also concerned about safety from falling branches. She complained about the tree to the Council and in 2019 it agreed to remove it following involvement of local councillors.
6. When contractors arrived to remove the tree in 2020 local residents objected and the work was halted. The Council says it officers did not find the tree to be in need of removal in 2019 but local councillors were given the outcome they were seeking. It says this was a fault because the correct process for removing a tree was not followed. The Council’s officers say the tree should not be removed as it is healthy, and they have not received sufficient evidence that the problem has caused damage or cannot be resolved by pruning.
7. The Council has advised Mrs X to submit a claim against its insurance if she has evidence that the tree is responsible for damage to her property. We would not normally investigate a complaint about liability for damage to property or personal injury. These are private legal matters which can only be resolved by insurers or, where no liability is accepted, by the courts.
8. It is reasonable for Mrs X to submit a claim and pursue the matter to the small claims court if the Council does not accept liability.

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Final decision

9. We should not exercise discretion to investigate this complaint. This is because it concerns a claim about damage to property which can only be determined by insurers or the courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman