Summary: The Ombudsman will not investigate this complaint about trees on Council land causing damage to private land. This is because the complainant has a remedy through the courts.

The complaint

1. The complainant, who I refer to as Mr M, is making a complaint about a tree on Council land falling into his garden causing damage and financial loss. He believes the Council have breached its duty of care to inspect the trees.
2. Mr M is seeking £2,153.00 in compensation for new fencing which is not covered under his home insurance.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

5. I have reviewed Mr M’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council and supporting information.

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What I found

Background

6. All councils have a duty of care to ensure that trees on council land are safe. To ensure this, councils should conduct inspections to identify risk and take necessary action where appropriate.

What happened

7. In February 2020, a large oak tree on Council land fell and caused damaged to Mr M’s property in his garden. The Council cleared the resulting debris and installed temporary fencing the same day.
8. In March 2020, Mr M wrote to the Council seeking financial compensation for damage to his fencing and for loss of privacy. In his view, the Council owed a duty of care to regularly inspect and maintain its trees which it failed to exercise. Mr M says, following a freedom of information request, that the Council only inspected trees in the area once in the last three years, contrary to its policy to inspect approximately every two years. Further, Mr M also makes reference to Council literature on the subject of managing trees which recommends tree owners visually inspect their trees twice annually. He believes had the Council followed its own advice then the damage may not have occurred since the offending tree might have been remedied.
9. In April 2020, the Council responded confirming its policy to conduct a walkabout survey approximately every two years to identify risk and damaged trees. It advised Mr M that the last inspection conducted was in January 2019 which did not identify any trees as requiring attention. In response, Mr M advised that the offending tree was leaning and showing signs of risk during the time of the most recent inspection and provided photographs as evidence. However, the Council found this evidence to be inconclusive. It also said its literature on the subject of inspecting trees was intended for homeowners and not local authorities.

Assessment

10. Mr M’s complaint is, in effect, that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
11. We cannot decide on the balance of probabilities whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr M’s position to seek a remedy in the courts, directly or through his insurers.

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Final decision

12. I will not investigate this complaint because the complainant has an alternative remedy through the courts.

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Investigator's decision on behalf of the Ombudsman