Summary: We will not investigate Mr B’s complaint that the Council is at fault in refusing to take action in response to damage to his property caused by a highway tree. This is because it is open to Mr B to pursue the matter in court and it would be reasonable for him to do so.

The complaint

1. The complainant, who I will refer to as Mr B, complains that the Council is at fault in refusing to take action in response to damage to his property caused by a highway tree.

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The Ombudsman’s role and powers

2. 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

3. I have considered what Mr B has said in support of his complaint and the documents he has provided. I have also considered his response to my draft decision.

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What I found

4. Mr B says the roots of a highway tree have damaged his drive. He wants the Council to remove the tree or install a root barrier. In support of his request, he has provided the Council with a survey report which identifies tree roots as the cause of the damage.
5. The Council has told Mr B that it has inspected the tree and no works are necessary. It will not carry out the work he has asked for. It has advised Mr B that he can make a claim through his insurers if he is unhappy with the response. Mr B has said he does not wish to do so. He is not seeking a financial settlement, just the removal of the tree or the root barrier. He says he cannot carry out remedial works unless this action is taken.
6. We will not investigate this complaint because it concerns liability for damage to property, and the Ombudsman cannot take a view on this. The key issue is whether the Council’s management of the tree is negligent, and this negligence means it is liable for the damage. This is not a matter for the Ombudsman. We cannot take a view on whether the works Mr B wants are warranted.
7. Where liability is disputed, the matter is for the courts to decide. I understand that Mr B does not want to make a claim against the Council. But this is his recourse, as the Council does not accept liability. Whether to use it is a matter for him.

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Final decision

8. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr B to pursue the matter in court.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman