Summary: We will not investigate Mr B’s complaint that his home has been damaged by the roots of two Council-owned trees. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains that his home has been damaged by the roots of two Council-owned trees on land next to his home. Mr B says he has sent reports and surveys to the Council which show the trees are damaging his home and they need to be felled. Mr B says the Council has only cut back the trees even though the Council’s insurer advised the trees should be felled. Mr B says there are large cracks in the walls of his home and the value of his property is being affected. Mr B would like the Council to accept it is responsible for the damage and take steps to address the problem.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act 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.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr B complains his home has been damaged due to the Council’s failure to maintain and remove trees it is responsible for. In effect, Mr B’s complaint is that his home has been damaged due to Council negligence.
7. Deciding whether an organisation has been negligent usually involves looking rigorously and in a structured way at evidence as only the court can to make its findings.
8. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
9. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts.
10. I find it is reasonable for Mr B to pursue his claim by taking the Council to court, particularly because of the seriousness of the issue he complains about. So, we will not investigate this complaint.

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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.

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Investigator's decision on behalf of the Ombudsman