Summary: Mr X complained about the Council’s refusal to either pollard or remove a tree which is close to his property boundary and which he says is causing nuisance and damage. We should not exercise discretion to investigate this complaint. This is because it is reasonable for Mr X to submit a claim to the Council and take the matter to the courts if no liability is accepted.

The complaint

1. Mr X complained about the Council’s refusal to pollard or remove a tree which is close to his boundary. He says his home is being affected by roots and leaf-fall from the tree. He also says the highway pavement could be a trip hazard from root damage.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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 all the information which Mr X submitted with his complaint. Mr X has been given an opportunity to comment on a draft copy of my decision.

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What I found

5. Mr X says a tree close to his home is causing damage to his property and nuisance from dropped leaves. He also complained that the highway pavement near the tree is being damaged by root growth. He says other trees in the rea have been pollarded, and he wants the Council to take the same action.
6. The Council has assessed the tree and the footway near it. It has proposed that flexible surface treatment will be installed around the tree base to prevent it being a hazard to pedestrians. It has told Mr X that it does not propose to remove or pollard the tree because in this case it is not warranted. Each tree is assessed on its own merits and it says this tree is satisfactory at present.
7. Complaints about personal injury or damage to property are private legal matters and would need to be submitted as a claim rather than a complaint to an authority. If no liability is accepted for the claim then it is a matter for the courts, not the Ombudsman to determine. It is reasonable for Mr X to submit a claim for the damage he says the tree is causing. If his claim is rejected it is reasonable for him to seek a remedy in the courts.

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Final decision

8. We should not exercise discretion to investigate this complaint. This is because it is reasonable for Mr X to submit a claim to the Council and take the matter to the courts if no liability is accepted.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman