Summary: We will not investigate this complaint about the Council’s refusal to pay legal costs for a dispute over the removal of a protected tree and re-siting of a boundary wall on private property. It is reasonable for Mr X to seek a remedy in the courts which are better placed to decide legal disputes.

The complaint

1. Mr X complained about the Council requiring him to rebuild a wall further away from a protected tree on its own land in order to preserve the tree. He says it had no authority to make him do this and he incurred legal costs of over £4,000 over the period when he had to prove liability for the work. He wants the Council to re-imburse him for the legal costs.

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The Ombudsman’s role and powers

2. 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 another body better placed to consider this complaint.

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

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 the complainant and the Council’s response.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says he was left with over £4,000 legal costs when he was told by the Council that he needed to rebuild his wall on its own highway land because it was being affected by a protected tree. He disputed the Council’s authority to require this and eventually the tree was allowed to be removed and the wall rebuilt in situ. He says he had to seek legal advice because of the threatening approach of the Council’s legal team.
7. He asked the Council to re-imburse the costs but it only agreed to make a £500 gesture for his inconvenience and refused to accept legal liability for the costs he incurred.
8. We cannot determine legal disputes about private matters. The Council has refused to accept liability for the costs and only the courts could decide which party is responsible.

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Final decision

9. We will not investigate this complaint about the Council’s refusal to pay legal costs for a dispute over the removal of a protected tree and re-siting of a boundary wall on private property. It is reasonable for Mr X to seek a remedy in the courts which are better placed to decide legal disputes.

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Investigator's decision on behalf of the Ombudsman