Summary: The Ombudsman will not investigate Mr Y’s complaint, made on behalf of Mr X, about the Council’s decision not to remove all the branches on its tree overhanging Mr X’s property. There is not enough evidence of fault by the Council, or of significant personal injustice caused to Mr X, to justify an Ombudsman investigation.

The complaint

1. Mr Y is Mr X’s son-in-law. Mr Y complains the Council will not agree to cut back lower branches on one of its trees, which overhang Mr X’s garden by about three metres.
2. Mr Y is concerned about the safety of the tree branches. He considers they could be a danger to Mr X as he is elderly, frail and has poor eyesight. Mr Y is worried Mr X may walk into them.

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The Ombudsman’s role and powers

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. I 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, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council.

(Local Government Act 1974, section 24A(6), as amended)

4. 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

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr Y;
• issued a draft decision, inviting Mr X to reply;
• spoken to Mr Y about the draft decision and considered his comments.

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What I found

6. Mr Y reported the problem with the overhanging branches to the Council and they sent an officer to visit. The officer decided the Council should remove branches on its tree overhanging Mr X’s garage or house, because they posed a potential damage problem to his property. But the officer declined to remove lower branches overhanging Mr X’s garden. The officer took the view that Mr X could remove those branches as he is entitled to lop overhanging vegetation owned by neighbours on adjacent land, including Council-owned land. The Council subsequently said it does not have resources to do private garden work, and suggested Mr X may seek help with the works from a charity.
7. Mr Y says the Council should remove the branches overhanging Mr X’s garden when they remove the higher ones, and because Mr X cannot afford to fund the work himself.
8. I have not seen enough evidence of fault by the Council in its decision-making process. An officer visited the site, assessed the matter, and made their decision on the work the Council should do to protect Mr X’s property, and to protect its own position as the tree’s owner. I realise Mr Y disagrees with the Council’s decision here, but it is not fault for a council to properly make a decision with which someone disagrees.
9. Councils are not required to lop all their trees where they overhang others’ land, just as a private citizen would not have to do that work on their tree for their neighbours. The property owner on the other side of the boundary from the tree’s owner may remove overhanging branches from neighbouring trees. The maintenance of Mr X’s garden does not fall to the Council by default because it owns the tree, even though Mr X may not have the means to remove the overhanging branches.
10. Even if the Council is at fault here, I do not consider the matter causes Mr X a significant personal injustice which would warrant an Ombudsman investigation. I understand Mr Y is concerned if Mr X walks into one of the tree branches and injures himself. But Mr X has not been injured by the branches, so it is a speculative injustice. The Ombudsman would not pursue a matter for injustices that have not happened.

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Final decision

11. The Ombudsman will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council to warrant an Ombudsman investigation; and
• there is insufficient evidence of significant personal injustice caused to Mr X by the matter to justify an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman