Summary: We will not investigate this complaint about the Council’s decision not to fell some highway trees or widen a footpath. There is not enough evidence of fault by the Council. Also, the complainant has a right to ask the Courts to decide whether any footpath obstruction should be removed.

The complaint

1. The complainant, who I shall call Mr X, complains the Council will not fell some highway trees outside his home. He says they damage his property and restrict visibility.
2. He wants the Council to remove the trees or widen the footpath. He also wants a guarantee that it will repay him for the cost of repairs he may have to make because of damage caused by trees.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A (6))
4. 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)
5. 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

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Mr X complains the Council will not remove eight large trees growing in the verge in his road in front of his home. He says they have damaged his property.
9. The Council recognised the reduced width of the footpath because of the trees is below the desired minimum. However, the trees have been inspected and are healthy. Given the general positive benefits of trees the Council does not consider the situation justifies removal.
10. However, it has identified a possible way forward to make it easier to cross the road and get past the trees. The work will be on the opposite side of the road and requires consent from other residents.
11. We cannot question the professional judgement of an officer if the correct process has been followed. In this case the Council has inspected the trees and the footpath before deciding not to remove the trees. Instead choosing to make changes to enable pedestrians to cross the road to get past the trees.
12. This is a decision the Council is entitled to make. We consider complaints of administrative fault. We cannot substitute our view over the professional opinions of officers who have inspected the site.
13. Section 130A of the Highways Act 1980 provides a method for members of the public to service a notice on a highway authority to remove an obstruction from a public highway, including a highway footpath. There is no charge for serving this notice. If the highway authority does not remove the obstruction to the satisfaction of the person who served the notice, section 130B of the Act states that person may apply to a magistrates’ court. The court can issue an order requiring the Council to take action.
14. It would not be unreasonable to expect Mr X to go to court in this case. Unlike a court of law, we have no powers to order the Council to clear the footpath. This is the outcome Mr X wants. The law provides a specific remedy for members of the public to use.
15. Because he has this right to go to court to resolve the issue, this part of Mr X’s complaint is outside the Ombudsman’s jurisdiction.
16. I have discretion to investigate the complaint even though Mr X has this legal right. But it is my view there is no evidence of fault in the way the Council decided not to remove the trees outside Mr X’s house. And it is reasonable for him to take his complaint to court because the court has powers to direct the Council to carry out any necessary work. The Ombudsman has no such powers
17. Mr X also says the trees have damaged his property and may do so in the future. He wants a guarantee from the Council that it will pay back any costs he incurs for repairs to damage caused by the trees.
18. If Mr X believes the Council’s negligence has led to damage to his property, he can make a claim on its insurance. If this fails, he can complain to the Courts who will decide on whether the Council is liable for any damage. This is not something we can determine.

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Final decision

19. I will not investigate this complaint. Mr X has a right to ask the Court whether the footpath is obstructed and whether the obstruction should be removed.
20. Also, we are not experts in highways safety. We can consider whether the Council has properly considered decisions that affect particular lengths of highway, but we cannot ourselves arbitrate on Mr X’s view about what should happen and the Council’s. From the information supplied it seems the Council has given proper thought to Mr X’s views, and I see no sign of procedural irregularity which would allow us to question the Council’s decisions.

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Investigator's decision on behalf of the Ombudsman