Summary: We will not investigate Miss X’s complaint about the Council’s decision not to remove a tree from the pavement in front of her house. There is not enough evidence of fault in the Council’s decision‑making process to warrant an investigation and we cannot achieve the outcome she seeks from her complaint.

The complaint

1. Miss X lives in a house with a large mature tree in the pavement to the front. She complains the Council has refused to remove the tree. Miss X says:

• the tree blocks sunlight to her property;
• the tree prevents her from installing a driveway;
• the tree’s roots have made the pavement uneven, causing a trip hazard and inhibiting her access because she has physical conditions;
• she has to frequently wash bird mess from her car, incurring expense and putting further physical strain on her;
• the matter is causing her stress and anxiety, affecting her wellbeing and diminishing her quality of life and daily comfort.

2. She wants the Council to remove the tree.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

5. I considered information from Miss X, the Council’s tree management policy and the Ombudsman’s Assessment Code.

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My assessment

6. 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 their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. In response to Miss X’s concerns about the tree, the Council’s grounds maintenance officers replied. Miss X then complained and a complaints officer considered the earlier officer replies, her reported impacts from the tree, the Council’s tree inspection information and its tree maintenance principles document. Officers had assessed the tree’s health and found it to be in good condition. They considered Miss X’s concerns about the tree under the Council’s adopted policy which says:
• a tree may only be removed if a tree officer finds it is an unacceptable hazard to the public and if it is dead, diseased, damaged or dying;
• it does not typically remove trees to improve light to properties because the benefits of retaining a tree outweigh the light impact;
• it will not usually remove a tree to allow installation of a dropped kerb as the wider benefits from the tree will likely outweigh the benefits provided by the installation;
• where roots make a pavement uneven, a tree would only be removed as a last resort and if it is of significantly low value and is easily replaced;
• it does not fell trees to remove or reduce bird droppings;
• it considers trees’ wider health benefits to all residents mean they will not remove them because of someone’s personal medical condition.

Officers concluded they did not have grounds to remove the tree under the Council’s policy and approach on tree maintenance.

8. The Council’s process to make its decision not to remove the tree involved officers considering Miss X’s concerns about its impacts, gathering relevant information about its health and condition, and applying the Council’s tree management approach. There is not enough evidence of fault in the Council’s decision-making process here to justify us going behind its decision and investigating. We realise Miss X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
9. The outcome Miss X seeks from her complaint is for the Council to remove the tree. We cannot order councils to remove trees. That we cannot achieve the outcome Miss X wants is a further reason why we will not investigate here.

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Final decision

10. 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 an investigation; and
• we cannot achieve the outcome she wants from her complaint.

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Investigator's decision on behalf of the Ombudsman