Summary: We will not investigate Mrs B’s complaint that the Council has refused to remove a tree which sheds seed pods over her garden. This is because an investigation is unlikely to find the Council was at fault.

The complaint

1. The complainant, who I will refer to as Mrs B, says a tree on Council land causes a nuisance because it sheds seed pods all over her garden for most of the year. Mrs B complains the Council has refused to remove the tree.

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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. 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

4. I have considered Mrs B’s letter of complaint and the supporting information she sent. This includes her complaint correspondence with the Council and photographs of the tree and the seed pods in her garden. I have considered the Council’s tree management policy, which is available on the Council website. I have also shared a draft version of this statement with Mrs B and have considered her comments in response.

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What I found

Background – The Council’s tree management policy

5. This policy sets out how the Council manages trees it is responsible for in the Council’s area.
6. The policy sets out a list of circumstances when in most instances the Council would not undertake work to trees. This list includes problems associated with leaf fall, blossom, fruit and seeds. The policy says:

Issues relating to leaves and fruit/seeds such as fruit being thrown, blocked gutters, slippery footpaths, mess falling onto gardens that need to be cleared, seeds or pollen blowing into the house are commonplace. Whilst these issues may be annoying and inconvenient, they are all natural and seasonal consequences of having trees in an urban environment.

7. The tree management policy also includes the following specific policies.

POLICY 16 – Medway Council will not prune or remove trees to deal with the minor nuisances listed above unless there are sound arboricultural reasons to do so.

POLICY 17 – Medway Council will treat all communications about trees courteously and in compliance with the published standards of the Council. However, it will only undertake tree works where considered necessary on arboricultural grounds.

POLICY 18 – Medway Council will act as a responsible tree owner and neighbour and prune or remove trees if there is evidence to show that, on the balance of probabilities, they are causing structural damage to property or are deemed unsafe following the identification of recognised defects.

What happened

8. Mrs B contacted the Council’s tree officer in late 2020 about a silver birch tree which is close to her property and managed by the Council. Mrs B said the tree sheds seed pods all over her garden for most of the year. The tree officer told Mrs B the Council did not intend to remove the tree.
9. Mrs B then put in a complaint to the Council. Mrs B said the seed pods cause a huge problem and it is more than just a nuisance. Mrs B explained that they ruin her garden, fall on her washing, and even get into her house and car.
10. The Council did not uphold Mrs B’s complaint. The Council said:
• It last inspected the tree on 12 October 2020.
• The inspection found the tree to be in a healthy and structurally safe condition.
• There is no arboricultural justification to fell the tree. Seeds and leaf fall can be considered a nuisance but this does not endanger the public. This is in line with the Council’s tree management policy.
• If the tree was reduced in size this would not stop seed production from the catkins.
• Mrs B may use her common law right to cut back branches which overhang her property boundary.

Assessment

11. I have decided not to investigate Mrs B’s complaint. This is because an investigation is unlikely to find the Council’s decision – not to remove the tree – was affected by fault.
12. The Council has explained to Mrs B why it will not remove the tree. The Council understands the tree is causing Mrs B a nuisance but says this does not justify removing the tree. The Council’s reasons are in line with its tree management policy.
13. Mrs B complains the Council has not visited her to see the problem. But, the Council was fully aware of Mrs B’s reasons for asking for the tree to be removed. So, we are unlikely to criticise the Council for deciding a visit was not warranted.
14. The information does not suggest the Council’s decision was affected by fault.
15. I understand why Mrs B would like the Council to remove the tree. But, unless there was fault in the way the Council reached this decision we cannot say the Council is wrong not to remove the tree.

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Final decision

16. We will not investigate this complaint. This is because it is unlikely an investigation would find the Council was at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman