Summary: We will not investigate this complaint about damage to the complainant’s property caused by trees on Council land. This is because it is reasonable to expect the complainant to go to court to decide any Council liability.

The complaint

1. Miss X wants the Council to reimburse her for costs incurred in replacing foundations and fencing to the front of her property. She would also like the Council to cover the cost of replacing her back garden wall and fencing, amounting to £6000.
2. Miss X says the Council is liable for these remedial work as trees and roots on a nearby public path have caused damage to her property. She says her back garden wall and fencing are unsafe, and she is scared to socialise with younger members of her family in the garden.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

5. I have considered all the complaint information sent in by Miss X. This includes the Council response. I also read her response to my draft decision.

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What I found

6. Last year, Miss X made a claim on the Council’s insurance for costs incurred when replacing the fence and foundations to the front of her property. The Council’s insurers rejected her claim.
7. Miss X says the damage to her back garden became apparent when she was trying to replace the back fence. She said she informed the Council, and it again rejected her claim.
8. Miss X then made a formal complaint to the Council.
9. The Council’s complaints investigation found roots near Miss X’s fence were from trees removed in 2014. It said Miss X was barred on time grounds for claiming for this period.
10. The Council said newer trees were identified for removal during an inspection in 2019. It said these were removed in 2020. It said Miss X did not complain until after the trees had been removed.
11. Overall, the Council found it had a reasonable system of inspection and maintenance in place. It quoted case law to justify its decision to turn down Miss X’s claim. It advised her to seek independent legal advice if she remained dissatisfied.

Assessment

12. I will not investigate because the matter of liability for damages is usually for the Council’s insurers and the courts.
13. Miss X has already made an insurance claim which has been rejected. It is reasonable for her now to take the matter to court to protect her private property. The court can decide liability and if Miss X is entitled to damages.
14. There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.

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Final decision

15. I will not investigate this complaint. This is because it is reasonable to expect Miss X to go to court to decide the Council’s liability.

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Investigator's decision on behalf of the Ombudsman