Summary: We will not investigate Mr B’s complaint that the Council damaged his garage by planting trees close to the boundary of his property. This is because it is reasonable for Mr B to pursue his claim against the Council by taking the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains that his garage has been damaged by trees which were planted by the Council. Mr B complains the Council has refused to accept liability for the damage to his garage despite evidence he has provided including a geology report. Mr B says his garage needs to be demolished and re-built because of the extent of the damage. Mr B would like the Council to settle his claim or for the Ombudsman to mediate between him and the Council.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. We refer to this as ‘fault’.
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 considered information provided by Mr B and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council’s insurers considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his garage. Mr B may pursue his claim by taking the Council to court.
7. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts. Only the court can decide if the Council has been negligent.
8. The court can assess what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order a party to pay damages.
9. I find it is reasonable for Mr B to take the Council to court. The fees for making a claim are relatively modest and Mr B may ask for the fee to be reimbursed if his claim is successful.
10. Also, it is not the role of the Ombudsman to provide mediation, which Mr B has requested.

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Final decision

11. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman