Summary: We will not investigate Mrs X’s complaint about how the Council has dealt with a privately-owned tree next to one of its parks. There is not enough evidence of fault in the Council’s decision-making process, or of a significant personal injustice to Dr X, to warrant us investigating.

The complaint

1. Dr X complains about a privately-owned tree next to and overhanging a Council‑owned park. She complains the Council has:
1. not required the owner of the tree to immediately do work to or remove it; and
2. not decided to immediately do the tree work itself.
2. Dr X considers the tree’s branches pose an ongoing danger to park users. She wants the Council to cut the overhanging branches, if the tree is not removed by the owner.

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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; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

(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)

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How I considered this complaint

5. I considered:
• information provided by Dr X;
• relevant online maps of the area;
• the Ombudsman’s Assessment Code.

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My assessment

6. The Council investigated the tree in response to Dr X’s reports and complaint. Officers found the tree to be diseased. They have asked the owner to do work to make the tree safe. The Council received a request from the owner’s contractor for permission to have access to the Council’s parkland to remove the tree, so the contractor could assess the cost of the work for the owner. The Council intends to wait for the owner to do the work in 2021. If it is not done, the Council says it may have to do the work itself and recover its costs from the owner.
7. Dr X is not satisfied with the Council’s approach and believes the tree’s branches are a present danger to users of the park. But the Council’s officers have determined the tree is not at imminent risk of failure. To reach their professional judgement on the tree, they visited it and saw its condition and location. That was an appropriate process for the Council to follow to reach its decision.
8. We can only go behind a council’s decision if there is fault in the process it followed which, but for that fault, they would have made a different decision. There is not enough evidence of such fault here by the Council to warrant us going behind the Council’s decision and investigating. I realise Dr X disagrees with the Council’s view. But it is not fault for a council to properly make a decision with which someone disagrees.
9. Even if there had been Council fault here, we would not investigate. This is because there is not enough evidence of a significant personal injustice caused to Dr X by this matter to justify an investigation. The tree is not near her property and has not damaged it or put her at risk, and could not do so. Nor does the tree prevent her using the park.
10. I recognise Dr X also made her complaint due to concern for other park users. But Dr X does not have standing to complain on behalf of others. Furthermore, the injustice claimed for those others is not an identified one which has happened, but a speculative one about what might happen.

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Final decision

11. We will not investigate Dr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant an investigation; and
• even if there had been fault, there is not enough evidence of a significant personal injustice to Dr X to justify us investigating.

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Investigator's decision on behalf of the Ombudsman