Summary: We will not investigate Mr X’s complaint about the Council’s decision not to remove a tree next to his property, and how it dealt with his complaint. There is not enough evidence of fault by the Council nor personal injustice to Mr X to warrant us investigating. Any damage by the Council’s tree to Mr X’s property would be an issue of legal liability which only insurers or the courts could determine. It would be reasonable for Mr X to pursue that route. We do not investigate councils’ complaint-handling where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mr X owns a property bordered by land containing a tree which is the responsibility of the Council. The property is currently tenanted. Mr X complains the Council:
1. has failed to maintain the tree;
2. will not take action until the tree has caused damage to his house;
3. failed to properly deal with his complaint.
2. Mr X is concerned the tree roots will cause damage to his property’s foundations. He says the tree is already causing nuisance as its roots have grown into the garden and the tree blocks light, making it difficult for grass to grow. Mr X wants the Council to take a pre-emptive approach and remove the tree before it causes significant damage.

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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 injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 from Mr X, online maps and the Ombudsman’s Assessment Code.

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My assessment

7. We may only go behind a council’s decision where there is fault in the decision‑making process it has followed and, but for that fault, there would have been a different outcome. So we consider the process the council’s officers used to reach the decision.
8. In response to Mr X’s reports about the tree, the Council sent an officer to visit the site. The officer assessed the tree. I recognise Mr X would have preferred the officer to see the issues caused by the tree on his property when he visited. But the purpose of the visit was to assess the health, condition, location and size of the tree, not the claimed impacts on Mr X’s property. The Council’s policy prioritises removals or works to dead or dying trees. It does not remove trees where roots have gone on to others’ land or where a tree is causing light loss. The Council took the view that based on the tree’s current condition no work was required and there were no grounds for it to be removed under its policy.
9. The Council gathered relevant information about the tree and applied its policy to reach its decision. There is not enough evidence of fault in that decision‑making process to warrant us investigating. I realise Mr X disagrees with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. I recognise Mr X wants the Council to approach cases differently, to do pre‑emptive work to his and other trees to avoid potential future damage. But the Council is entitled to prioritise its limited resources on those cases where personal or property damage is already happening, or where officers determine damage caused by one of their trees is imminent. It is not fault for a Council to make professional judgement decisions to focus its resources, as it has done here.
11. Even if there were fault by the Council in its decisions, we would not investigate because there is not enough injustice to Mr X here to warrant investigation. I recognise Mr X is annoyed by the encroaching roots. But the Council has advised him that, as with overhanging branches, he can cut back those roots as long as the tree is not harmed. Mr X is able to remove them under this Common Law right so the roots are not a sufficiently significant injustice to him to warrant us investigating. I understand Mr X is concerned the tree’s roots will damage his house, a potential injustice. But we cannot consider events which have not occurred so this speculative injustice is not one we can take into account. Mr X also says the tree shades the property’s garden. The Council says it will not normally prune or remove a tree to reduce shading as there is no legal duty on a tree’s owner to do this work to increase light for a neighbour. I realise the shade caused by the tree has some impact on Mr X’s property, but it is not a sufficient injustice to him to justify an investigation.
12. If Mr X believes in future that the tree roots have caused damage to his property, this would be a claim of legal liability. We cannot determine legal claims. Only insurers or the courts can decide legal liabilities for damage to people or property. It would be for Mr X to firstly pursue the matter as an insurance claim against the Council. If dissatisfied with the outcome, it would be reasonable for him to take the claim to court. This is because by that point in the process, the court would be the only body which could make the legal determination required to resolve the liability claim.
13. Mr X says the Council did not properly deal with his complaint. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

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

• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• there is insufficient personal injustice to him to justify an investigation; and
• if he believes the Council’s tree has damaged his property, that would be an issue of legal liability which only insurers or the courts could determine and it would be reasonable for Mr X to pursue that route; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issue giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman