Summary: We will not investigate this complaint about how the Council has dealt with the complainant’s concerns about planning matters and damage to their property. The law says we should not look at the substantive issues. It is not a good use of public funds to investigate how the Council dealt the complainant’s concerns about those issues.

The complaint

1. The complainants, who I refer to here as Mr and Mrs B, have complained about how the Council has dealt with their concerns about various issues. These chiefly relate to:

• the rejection of a planning application;
• the refusal of an application to carry out works on a protected tree; and
• damage to their property caused by a tree or trees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. If someone has already appealed, we cannot investigate and have no discretion in this. (Local Government Act 1974, section 26(6)(b))
4. The law also 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met.(Local Government Act 1974, section 24A(6), as amended)
6. It is not a good use of public money to investigate a complaint about something where we will not investigate the central issue.

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How I considered this complaint

7. I considered information provided by Mr and Mrs B which included the Council’s responses to their concerns. I have also considered our Assessment Code.
8. Mr and Mrs B commented on a draft before I made this decision.

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My assessment

9. Mr and Mrs B have clarified their complaint is not about their own planning application or Tree Preservation Orders. We could not, in any case, look at a complaint about the planning application because Mr and Mrs B appealed to the Planning Inspectorate against the Council’s refusal of planning permission. Similarly, we would not look at a complaint about the Council’s refusal of their application to carry out work to a protected tree. They had a right of appeal to the Planning Inspectorate against the refusal. The restriction I describe in paragraph 3 therefore applies.
10. If Mr and Mrs B believe the Council is responsible for damage to their property, the complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
11. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr and Mrs B’s position to seek a remedy in the courts, directly or through their insurers. I see no reason they should not do so in this case and so the restriction I describe in paragraph 4 applies.

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Final decision

12. Subject to any comments Mr and Mrs B might make, my view is we should not investigate this complaint. This is because we will not investigate the substantive issues. It is not a good use of public money to consider how the Council has dealt with Mr and Mrs B’s complaints about those issues. I do not consider there is evidence of other fault by the Council which has caused Mr and Mrs B injustice that warrants our involvement.

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Investigator's decision on behalf of the Ombudsman