Summary: We will not investigate Miss X’s complaint about the Council deciding not to cut back trees near her property, not discussing the matter on-site with her, and the tree roots causing pavement damage. There is not enough evidence of fault in the Council’s decision-making process about the trees, including its site visits, to warrant an investigation. Investigation of the pavement issue would not achieve a different outcome.

The complaint

1. Miss X lives with her family in a house with Council-owned trees near the boundary, the branches of which overhang her garden. She complains the Council has:
1. refused to cut back the trees;
2. not visited her and her neighbours to discuss the matter;
3. has not repaired the pavement next to the trees.
2. Miss X says the trees are extremely dangerous and long overhanging branches could cause serious harm or death to her or family members and damage her plants and garden furniture. She says she is worried and stressed about the possible impacts of the trees and wants her garden to be safe for her family. Miss X says she has tripped on the pavement and considers wheelchair users or people with prams may not be able to.
3. Miss X wants the Council to cut back the branches overhanging her property and maintain them like this in future.

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The Ombudsman’s role and powers

4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• further investigation would not lead to a different outcome.

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

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information from Miss X and the Council, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
8. In response to Miss X’s contact about the trees, the Council reviewed its previous inspections. Officers confirmed the trees are on a four-year inspection rota, but when they receive reports of problems they will visit and inspect in addition to the rota. Officers had inspected them more recently using this approach, including within six months of the complaint. Officers determined the trees’ health and condition did not require pruning or other work. Applying their assessment processes, they decided the risks posed by the trees were significantly lower than the threshold which would have required such work. Officers explained other trees in the area which had been pruned or removed had been assessed as posing unacceptable levels of risk. They noted Miss X’s concerns about branches overhanging her property and confirmed they do not do such ‘common law’ pruning, in part because they must target their resources where their trees are causing much greater risks. Officers advised Miss X that under common law she is entitled to engage a tree surgeon to have the overhanging branches removed.
9. We note Miss X says in her complaint to us that officers should have visited the site and spoken to her and neighbours during their process. It is for officers to decide how to gather the information required for their decision. The key information which allowed officers to make their professional judgement of the risk level was the health and condition of the trees. Officers had that information from their appraisals of the trees, including recent site visits. It is not fault for a council’s officers to not meet with someone.
10. Officers considered Miss X’s concerns, gathered the relevant information about the trees, and applied the Council’s approach when making their decision that the trees did not require work. The Council was entitled to properly adopt an approach to tree maintenance and then apply it to reports received about its trees. There is not enough evidence of fault in the decision-making process the Council followed to justify us going behind its officers’ decisions about the tree works and investigating. We recognise Miss X disagrees with the Council’s decision and wants it to cut back the trees. But it is not fault for a council to properly make a decision with which someone disagrees.
11. The Council’s officers noted tree roots have caused some damage to their pavement but stated they do not remove trees for this reason under their policy. Officers confirmed resurfacing to the pavement is on its list of works to be done as soon as resources allow. We cannot order councils to change their adopted policy or approach, nor give precedence to works where they have determined what priority they should have within the longer list of repairs required in its area. Investigation of this issue would not result in a different outcome for Miss X so we will not do so.

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Final decision

12. We will not investigate Miss X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• investigation would not achieve a different outcome on the pavement repairs.

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Investigator's decision on behalf of the Ombudsman