Summary: We will not investigate this complaint about how the Council dealt with concerns about a tree. This is because we are unlikely to find fault. It is also unlikely an investigation could add to the Council’s response and property damage claims are a matter for the courts.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, have complained about how the Council has dealt with their concerns about a tree in their neighbour’s garden. They say the tree is dangerous and causing damage to their home. Mr and Mrs X say the Council should take responsibility for the supervision and management of the tree and prevent it from damaging their property.

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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, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome.

(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 Mr and Mrs X’s complaint and the Council’s responses. I invited Mr and Mrs X to comment on a draft of this decision and I have considered their comments in response.

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What I found

5. A Tree Preservation Order (TPO) makes it an offence to cut down, top, lop, uproot or wilfully damage a tree without the Council’s permission. The owners of the tree will be responsible for its maintenance, but there are no statutory rules relating to the frequency and standard of any maintenance. The Council cannot request work to a tree just because it is subject to a TPO. Council’s should keep TPOs under review and have the power to vary or revoke an order.

What happened

6. In the 1980s the Council made a TPO for a tree in Mr and Mrs X’s neighbour’s garden. In 2018, Mr and Mrs X contacted the Council to complain about the tree. They said toxic debris from the tree was falling on their garage roof and driveway. They also believed the tree was causing structural damage to their property. Mr and Mrs X said they had not been consulted about the TPO and questioned why it was necessary.

Assessment

7. I will not investigate this complaint about how the Council dealt with Mr and Mrs X’s concerns about their neighbour’s tree. This is because I am unlikely to find fault by the Council. It is also unlikely an investigation would lead to a different outcome.
8. Mr and Mrs X have complained about the Council’s decision to make the TPO and say they should have been consulted. However, when the Council made the TPO for Mr and Mrs X’s neighbour’s tree in the 1980s it did not need to consult the residents of neighbouring properties. I understand Mr and Mrs X would like the Council to explain why it considered the TPO necessary. The Council has been unable to provide this information as the records from the time are not available. The order also does not include reasons and the officers involved no longer work for the Council. It is unlikely an investigation by the Ombudsman could add to the Council’s response in this regard or achieve anything more due to the many years that have passed since the TPO was made.
9. Mr and Mrs X say the Council should supervise and maintain the tree. But this is the responsibility of the tree owner. The Council does have the power to take action where it considers the condition of a tree is likely to cause danger to a person or property. However, an officer from the Council inspected the tree but decided it was not dangerous and said there were no signs it was causing structural damage. Therefore, it decided it did not have any grounds to issue a dangerous tree notice. As the Council properly considered if action was needed in relation to the tree it is unlikely I could find fault.
10. Mr and Mrs X say the Council is liable to pay compensation for any damage to their property caused by the tree. However, property damage claims are a matter for insurers and ultimately the courts, not the Ombudsman.
11. Mr and Mrs X have also complained the Council has failed to re-visit the need for the TPO. The Council does have the power to revoke or vary a TPO. It may decide to revoke the order if it considers the tree no longer warrants protection. In this case, the Council says the tree has been inspected following various applications over the years and it is satisfied the TPO remains valid and in accordance with the relevant legislation. I understand Mr X disagrees, but the Council was entitled to use its professional judgement in this regard.

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Final decision

12. We will not investigate this complaint. This is because we are unlikely to find fault by the Council. It is also unlikely an investigation could add to the Council’s response and property damage claims are a matter for the courts.

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Investigator's decision on behalf of the Ombudsman