Summary: We will not investigate Mr X’s complaint about the Council not taking seriously his safety concerns relating to a tree outside a building for which he is responsible, nor its decision not to remove or reduce the tree. There is not enough evidence of fault in the Council’s assessments of and decisions on the matter to warrant us investigating.

The complaint

1. Mr X is the custodian of a building open to the public. Outside the building, set into the Council’s pavement, is a large tree. Mr X complains the Council has:
1. failed to take seriously his safety concerns related to the impacts of the tree on users of the building;
2. incorrectly decided not remove or reduce the tree.
2. Mr X is extremely concerned it is only a matter of time before the tree’s impacts cause an accident. He says roots have caused the pavement to rise and crack so wheelchair and pram users cannot get past and have to go into the road. Mr X says the branches overhang the building’s roof and he is worried they may fall. He says birds use the branches and their droppings cause a health hazard, and debris such as leaves, seeds and sap make the building’s steps dangerous. Mr X is legally responsible for users of the building but says he feels powerless to reduce the risks. He wants the Council to remove the tree, plant one more suited to the surroundings and restore the pavement. Alternatively, he wants the Council to pollard the tree from about twenty to five metres tall and fix the pavement.

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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, (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)

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How I considered this complaint

5. I considered information from Mr X and the Council, relevant online maps, and the Ombudsman’s Assessment Code.

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My assessment

6. We may only go behind a council’s decision where there is evidence of fault in its decision-making process and, but for that fault, its officers would have made a different decision. So I have considered the processes the council followed to assess Mr X’s concerns about the impacts of the tree and decide not to do the works sought.
7. Mr X reported his concerns to the Council earlier in 2022. The Council replied and sought to clarify some of the issues raised. Mr X replied and the Council referred the matter to relevant officers. A tree officer visited the site and met with Mr X. They assessed the condition of the tree and determined it was healthy. In line with the Council’s tree policy to only remove or do major work to trees on safety grounds, they did not recommend pollarding or removal. After assessment of the information, the officer did not consider the risks set out by Mr X as being caused by the tree gave them grounds to do the level of works he wanted. The tree officer did recommend lopping of some lower branches next year as part of the yearly maintenance process. Highways officers also visited the site the next day on the request of the tree officer. They assessed the impact of the tree on the pavement. They determined the pavement was not in such disrepair to require any work.
8. There is not enough evidence of fault in the way the Council took account of Mr X’s safety concerns, nor its officers’ decision-making processes regarding works to the tree or highway, which justifies an investigation. Officers gathered relevant information from Mr X, their site visits and the Council’s policy to make their professional judgements. I realise they made decisions with which Mr X disagrees. But it is not fault for a council to properly make a decision with which someone disagrees.

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Final decision

9. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s decision-making processes to warrant us investigating.

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Investigator's decision on behalf of the Ombudsman