Summary: We will not investigate Mr X’s complaint about the Council denying responsibility for damage done to his property and a path by nearby trees. We cannot determine ownership of the trees so cannot find the Council at fault for not doing work to them, and investigation would not achieve a different outcome. Even if we could make that determination, the core complaint is a legal liability claim only insurers or the courts can decide. It would be reasonable for Mr X to take a damage claim to court. There is no different outcome to be achieved for Mr X than the Council’s apology for its initial undertaking to do works to the trees. There is insufficient injustice to Mr X from damage to the path to warrant investigation. We do not investigate council correspondence and complaint-handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Mr X lives in a property with three trees near his boundary. A footpath runs between his property and the trees. He complains the Council:
1. has incorrectly denied ownership of and responsibility for maintenance of the trees;
2. initially agreed to do work to the trees but then changed its decision;
3. failed to properly respond to his reports and complaints about the trees.
2. Mr X says the trees overhang his property and branches have damaged his roof in high winds. He is also concerned about future root damage to his house’s foundations. Mr X says the roots are a trip hazard to the path’s users. He wants the Council to remove all branches overhanging his property, cut the trees back drastically and dig out the roots to make the area safe.

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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:

• further investigation would not lead to a different outcome; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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

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

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My assessment

6. The core issue is whether the Council is responsible for the maintenance of the trees causing damage to Mr X’s property. The Council’s final position is that it does not own the trees and is not responsible for maintenance works to them. Mr X disagrees and considers the Council bears responsibility for the trees and the damage caused.
7. We cannot determine the ownership of the trees and so whether the Council is responsible for their maintenance. This is a matter only a court or insurer could determine. This means we cannot say it is fault by the Council to not decide to do works to them as Mr X requests. Investigation of this issue would not lead to a different outcome because we cannot resolve the core disagreement on whether the Council is responsible for the trees’ maintenance.
8. Even if the Council is responsible for the trees, Mr X’s main complaint is one of liability for the damage he says those trees have caused to his property. Liability for property damage is a legal issue which only insurers or the courts can determine, not the Ombudsman. Mr X may make a claim against the insurers of the body or person he considers is responsible for maintenance of the trees. If he believes the Council is responsible for the damage rather than any other party, then he may make that claim with the Council’s insurers. If he has an appropriate policy in place, Mr X may also consider making a claim on his own insurance to get redress. It would then be for his insurers to determine who to make the claim against.
9. Should insurance claims not resolve the issue of ownership of the trees or his claim for damages, these would be matters Mr X may take to court. It would be reasonable for Mr X to take this legal liability issue to court if required because it would then be a matter only a court could determine.
10. Mr X could decide to do his own works to the trees. He may prune branches overhanging his property, up to the boundary, and offer the cuttings back to the owner. Before taking this option Mr X may wish to seek professional arboriculture advice on what work is possible to the trees without harming them. If pruning work he has done or commissioned causes the trees harm, their owner may seek to hold him liable.
11. It was fault for the Council to initially tell Mr X they would add the trees to their roster of works. But had we investigated, an apology is the outcome we would have sought for this part of the complaint. The Council has apologised to Mr X for that error in its complaint responses. There is no different outcome an investigation of this issue would now achieve for him.
12. Mr X says the trees have damaged the Council’s path which is a hazard to members of the public using it. The Council has indicated it intends to do repairs to the path. Mr X raises the impact of the path’s disrepair on its users. But that is not his personal injustice, and the injustice to him from the condition of the path is not sufficient to warrant us investigating.
13. Mr X also says he is concerned the tree’s roots may damage the foundations of his property in future. But that is a further claim of legal liability for property damage. If Mr X believes the trees have caused such damage, this would be a matter for insurers or the courts to determine, as set out above.
14. Mr X has complained about how the Council dealt with his reports and complaints about the trees, including its lack of responses and delayed replies. We do not investigate councils’ correspondence and complaint-handling in isolation where we are not investigating the core issues 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 Mr X’s complaint.

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Final decision

15. We will not investigate Mr X’s complaint because:
• we cannot resolve the dispute about whether the Council is responsible for the trees’ maintenance, so investigation would not achieve a different outcome; and
• even if we could resolve that dispute, the complaint remains one of liability for property damage, a legal issue only insurers or the courts can determine; and
• it would be reasonable for him to take his property damage claim to court; and
• there is no different outcome investigation would achieve for him than the Council’s apology for its initial undertaking to do work to the trees; and
• there is insufficient injustice to him from root damage to the path to warrant investigation; and
• we do not investigate council correspondence and complaint-handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman