Summary: We will not investigate this complaint about damage caused to Mrs X’s property due to a Cherry Tree on land belonging to the Council. This is because the courts are best placed to determine any Council negligence for damage. It is therefore reasonable to expect Mrs X to take her claim to court to protect her property.

The complaint

1. Mrs X complains that her walls, drain, and property are being damaged due to roots from a Cherry Tree on Council land.
2. Mrs X would like the Council to cut down the tree and remove the roots under the pavement and their walls, drain and driveway. She says she is being caused huge stress and it contributed to her diagnosis of cancer.

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The Ombudsman’s role and powers

3. 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

4. I considered the information provided by the complainant. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. We will not investigate. Mrs X is effectively complaining the Council has been negligent. Deciding about 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. 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.
6. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages or direct the Council to remove the tree. Mrs X can make her case in court on the necessity of the tree removal. So, I would usually expect someone in Mrs X’s position to seek a remedy in the courts, directly or via her insurers. I do not consider there is any exceptional reason why Mrs X cannot do this.

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Final decision

7. We will not investigate Mrs X’s complaint because it is reasonable to expect her to take her claim to court to protect her property.

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Investigator's decision on behalf of the Ombudsman