Summary: We will not investigate Mr X’s complaint about the Council’s involvement in his neighbour Mr Y’s development which damaged his tree, resulting in its loss. There is not enough evidence of Council fault causing Mr X’s claimed injustice to warrant us investigating. Mr X’s complaint is a claim of property damage and loss, which is a legal liability issue for the courts to determine. It is reasonable for Mr X to take the matter to court and pursue the compensation he seeks.

The complaint

1. Mr X lives next to a property whose owner Mr Y gained planning permission for side and rear extensions. Mr X had a tree in his garden, close to the boundary with Mr Y’s property.
2. Mr X complains the Council:
1. failed to act in accordance with relevant law, guidance and good practice to protect his tree from Mr Y’s development work;
2. failed to advise Mr Y correctly about how not to damage the tree.
3. Mr X says tree root damage done during the development made it unsafe and it had to be felled, causing a loss of amenity to him and the neighbourhood. He wants compensation from the Council for the loss of the tree.

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The Ombudsman’s role and powers

4. 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 any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6))
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 Mr X, relevant online planning documents, and the Ombudsman’s Assessment Code.

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My assessment

7. The Council granting permission to Mr Y’s development did not and could not give him permission to damage Mr X’s tree. The accountability for the work which Mr X believes led to damage to his tree is Mr Y’s. Mr Y and contractors acting for him did that work, not the Council. The tree was not protected by being in a conservation area or the subject of a Tree Preservation Order. This meant Mr Y could have cut back the tree roots or branches encroaching into or over his property at any time, before, during or after the planning process. That the work done to the area near the tree was related to a planning application did not take away Mr X’s rights, which he has always held, to remove any parts of Mr X’s tree from his property. It would have been prudent for Mr Y to only do work which did not harm the tree. But ultimately it was his decision to do the work in a way which Mr X says led to the tree’s loss. There is not enough evidence that it was fault by the Council which caused Mr X’s claimed injustice.
8. The core of Mr X’s complaint is a claim of property damage and loss. That is a civil matter between Mr X and Mr Y as the party ultimately responsible for the development. We cannot determine legal liability matters such as claims of property damage and loss. Liability is for insurers to decide and, if an insurance claim is rejected, for the courts to determine. It would be reasonable for Mr X to pursue the matter at court. I say this because the courts, unlike the Ombudsman, have the role and expertise to decide liability claims. Mr X is also seeking compensation for the loss of his tree. We can only make recommendations for remedies and do not award compensation, whereas courts may issue binding rulings and order compensation. For these reasons, it is reasonable for Mr X to pursue the matter and the outcome he seeks in court.
9. I note Mr X says the Council gave Mr Y or his representatives incorrect advice on how to protect Mr X’s tree during the development, including the calculation for the area of its root protection zone. Councils should provide accurate advice to people. But the Council’s obligation to do this here was to Mr Y, not Mr X. If Mr Y received and relied on inaccurate guidance from officers which led to him making an error in how he did the work near Mr X’s tree, that is a matter between Mr Y and the Council. Should Mr Y incur any loss in the future which he believes is due to his reliance on incorrect Council advice, then that would be a complaint for Mr Y to make to the Council.

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Final decision

10. We will not investigate Mr X’s complaint because:

• there is not enough evidence of Council causing his claimed injustice to warrant an investigation;
• it is reasonable for him to pursue the legal liability matter, and the compensation he seeks, in court.

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Investigator's decision on behalf of the Ombudsman