Summary: The Ombudsman will not investigate Mr and Mrs B’s complaint that the Council is at fault in refusing to prune a tree close to their boundary. This is because it is unlikely we would find fault on the Council’s part.

The complaint

1. The complainants, who I will refer to as Mr and Mrs B, complain that the Council is at fault in refusing to prune a tree close to their boundary.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 24A(6), 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 what Mr and Mrs B have said in support of their complaint and the documents they have provided. I have also considered a submission from the Council and the relevant policy document. I have considered Mr and Mrs B’s response to my draft decision.

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What I found

5. Mr and Mrs B’s property adjoins an area of Council land. They say trees close to the boundary require pruning and complain that the Council has refused to do so. They say the tree closest to their property causes loss of light and that its proximity to their boundary has resulted in squirrels damaging their decking.
6. The Council has declined to carry out the work Mr and Mrs B have requested. It says its policy on works to healthy trees does not allow for pruning in these circumstances. It does not find that the trees require pruning and does not accept that it is responsible for damage caused by squirrels, or that it has a duty to prevent loss of light.
7. Mr and Mrs B do not accept the Council’s response. They point out that the trees cause nuisance to other residents, who have offered to pay for the works. They also argue that there may be a right to light, as their house is Grade 2 listed.
8. The Ombudsman will not investigate Mr and Mrs B’s complaint because it is unlikely we would find fault on the Council’s part. The Council’s policy document is clear and there is nothing to suggest fault in the way it has been implemented. The Council has made a decision not to carry out the work Mr and Mrs B want because the tree is not causing damage or unhealthy. Without evidence of fault in the way it made its decision the Ombudsman cannot intervene.
9. Mr and Mrs B say the information the Council has provided demonstrates that it changed its tree policy without notification or consultation. They also say the evidence shows that the change was made on financial grounds. They point out that they and others have offered to cover the costs of the work they believe is necessary.
10. The Council is entitled to change its policy and is entitled to do so wholly or partly on financial grounds. It is not required to consult in order to do so. I can see no evidence to suggest that the change the Council has made impacts on its ability to deliver its statutory functions, so there are no grounds for the Ombudsman to intervene. Given that the proposed works clearly fall outside the terms of the policy, the fact that residents have offered to pay for them is irrelevant.
11. If Mr and Mrs B believe the Council is responsible for damage to their property it is open to them to make a claim against it. This would be a matter for the insurers and, ultimately, for the courts. If they are correct to say the Council may be infringing their legal right to light, this right may be enforced in court. These are not matters for the Ombudsman.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault on the Council’s part.

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Investigator's decision on behalf of the Ombudsman