Summary: We will not investigate this complaint about the Council’s decision not to remove a tree or to pay for damage to the complainant’s property. We have not seen sufficient evidence of fault in the Council’s decision not to remove the tree. And it is reasonable to expect the complainant to claim on the Council’s insurance if she believes it is liable for damage to her property. If this is refused, she can make a claim in court.

The complaint

1. Mrs X complains the Council refuses to remove a tree on the road outside her home. She also complains it refuses to pay for damage caused by another tree which it has since removed.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 information provided by Mrs X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mrs X complained to the Council that two highway trees close to her home were damaging her property. The Council inspected the trees. It removed one tree and cut back the other.
7. However, Mrs X believes the Council should pay for the damage to her property caused by the first tree.
8. We cannot determine if the Council is legally liable for any damage caused to Mrs X’s property. This is a matter for insurers or the courts. Mrs X can make a claim for the damage on the Council’s insurer. If this is refused she can ask the court to consider the matter. There is a procedure open to anyone to make such a claim in court. I consider therefore that it is reasonable to expect Mrs X to resort to such action, and as per paragraph three, we will not investigate.
9. Mrs X also complains the Council has not removed the second tree. She is worried it will grow back, and the roots will damage her fence.
10. The Ombudsman will not investigate Mrs X’s complaint because there is no evidence of fault on the Council’s part. Mrs X and the Council disagree on whether the second tree should be removed. It is not for us to take a view. Rather, it is to consider whether there is evidence of fault in the way the Council made its decision.
11. The Council inspected the trees and carried out the work it considers necessary. Its conclusion that it does not need to remove the second tree is a matter for the professional judgement of the officers concerned. Without evidence of fault in the way the decision was made the Ombudsman cannot intervene to criticise it, or to substitute an alternative view.

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Final decision

12. We will not investigate Mrs X’s complaint because we have not seen any evidence in the way the Council decided not to remove the second tree. Also because it is reasonable to expect her to make an insurance claim for the damage to her property. If this fails she can ask the court to consider the matter.

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Investigator's decision on behalf of the Ombudsman