Summary: The Ombudsman will not investigate this complaint about alleged overgrown Council trees adjoining the complainant’s property. This is because the complainant has a court remedy which she could reasonably pursue, and the Ombudsman is unlikely to determine any other fault by the Council.

The complaint

1. The complainant, who I refer to as Ms L, is making a complaint about the Council declining to prune its trees. She says the trees are overgrown which is resulting in sun deprivation to her property, the encroachment of branches and leaves and damage to her boundary fencing.

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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. 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).
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 an investigation if, for example, we believe it is unlikely we would find fault. (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 reviewed Ms L’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, its policies and applicable legislation.

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What I found

Background

7. 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. The Council have a policy of carrying out cyclical inspections of its trees three years to meet its statutory obligations.
8. A statutory nuisance is defined by the Environmental Protection Act 1990 and can include noise disturbances. For noise to be a statutory nuisance, it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premise; injure health or be likely to injure health.
9. Under Section 82 of the Environmental Protection Act 1990, a member of the public can also ask a magistrates’ court to decide if a statutory nuisance exists and, if so, decide what action must be taken.

What happened

10. In May 2020, Ms L complained to the Council that trees which were adjacent to her property were in need of maintenance. Ms L said that the trees have become a frequent problem and that branches have begun to overhang and fall into the boundaries of her property. Further, she stated that the problem of the overgrown trees was causing sun deprivation.
11. In July 2020, the Council responded advising that that on review of the matter with another tree officer, it had concluded that there did not exist any scope for pruning the trees. Further, the Council advised that the trees were last inspected in November 2019 and that it was required to balance seasonal inconvenience with the benefits of retaining mature trees which create an attractive landscape. It also rejected the trees met the requirements of a statutory nuisance.
12. Dissatisfied with the response of the Council, Ms L escalated her complaint informing that any inspection was not carried out from the perspective of her garden. She further advised that the overgrown trees have not been maintained for several years and are now causing damage to her garden fencing. The Council did not uphold Ms L’s complaint for the reasons given. It also confirmed that its tree risk management coordinator inspected the trees again in August 2020 and did not identify scope for further pruning of the trees.

Assessment

13. By law, I cannot question the merits of a decision by the Council in the absence of fault. The Council have an established policy on inspecting its trees and undertaking maintenance work when required. The trees subject to Ms L’s complaint were inspected in November 2019 and August 2020 by different tree officers and the Council concluded there existed no scope for maintenance. As the Council correctly applied its policy, I am unlikely to determine fault.
14. Further, I recognise that Ms L says that the Council trees are causing damage to her property and that the matter constitutes a statutory nuisance. In these circumstances, the law says that I cannot investigate when the complainant could reasonably take their case to court. The Section 82 procedure described in Paragraph nine is relatively easy to use and Ms L has expressed that she is prepared to take legal action against the Council in this regard. On this basis, the restriction I describe in Paragraph three generally applies and so I do not propose to investigate this complaint.

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Final decision

15. I will not investigate this complaint. This is because Ms L has a court remedy which she could reasonably pursue. I am unlikely to determine any other fault by the Council insofar as to how it applied its tree policies and I cannot question the merits of a decision in the absence of fault.

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Investigator's decision on behalf of the Ombudsman