Summary: We will not investigate Mr X’s complaint about the Council deciding not to remove a tree it owns which is near his property. There is not enough evidence of fault in the Council’s decision-making process to warrant us investigating. Even if we did investigate, we could not achieve the outcome he seeks.

The complaint

1. Mr X lives in a property with a Council-owned tree nearby. He complains the Council has wrongly decided not to remove the tree, which he considers its tree policy would allow it to do.
2. Mr X says the tree’s roots have caused several blockages to his property’s sewer pipe, resulting in severe damage and raw sewage contamination, which is a serious health hazard. He wants the Council to remove the tree.

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The Ombudsman’s role and powers

3. 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
• we cannot achieve the outcome someone wants.

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

4. 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

5. I considered information from Mr X and the Council, relevant online maps and images, 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 if that fault had not happened 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 Mr X’s report about the tree, the Council inspected it. The officer determined the tree was healthy and under its policy would not be removed. The Council noted Mr X’s concerns about the tree causing damage to his sewer pipe. Officers advised Mr X that this amounted to a claim of property damage and that if he believed the Council’s tree was the cause of the damage, he should make a claim with its insurers. The insurer would then consider the claim and investigate whether any of the damage was caused by the Council’s tree and whether it would be liable for that damage.
8. We recognise Mr X believes it is the Council’s tree which has caused the sewer pipe issues. He provided evidence from repairs visits which refer to roots being removed from the affected pipe. But the Council has made its decision not to remove the tree on the basis of the evidence. There is currently no finding that roots from the tree caused the blockages and that is not a decision the Ombudsman can make. We cannot decide questions of legal liability for property damage. That is a matter only insurers or the courts can decide. The Council has given Mr X a route to investigate whether its tree has been the cause, by making an insurance claim. Officers have confirmed that if their insurer decides the Council’s tree was liable for any damage to Mr X’s property, they will consider this when deciding what should happen to their tree.
9. We note Mr X considers the damage to his pipe gives the Council reason under its tree management policy to remove the tree. The policy says: ‘Tree removal will only be considered when a tree is: … A major contributor to serious structural damage to main buildings or infrastructure’. But whether this part of the Council’s policy applies first requires a finding that the tree has caused the damage. As explained above, that finding has not yet been made, so the question of whether this part of the policy applies does not arise.
10. Officers gathered relevant information about the tree and applied the Council’s adopted approach when deciding not to remove it. 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 recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
11. If Mr X is dissatisfied with the outcome of any insurance claim for damage to his property and wishes to pursue it, we would not investigate. He would have to take that part of the matter to court. The court would then be the only body which could make a legal ruling on whether the Council is liable for any property damage. We would not investigate because unlike the courts we could not rule on the core legal liability issue and could only make recommendations, while the courts can make such rulings and also issue binding orders on the parties.
12. The outcome Mr X wants from his complaint is for us to order the Council to remove the tree. We cannot issue such an order to the Council to fell a tree. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• even if we did investigate, we could not achieve the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman