Summary: We will not investigate this complaint about the Council not taking enough action to control the growth of highway trees and their alleged effect on the complainant’s home and a nearby footway. We have no power to investigate a decision when there is not enough evidence it was affected by procedural fault, and we could not achieve more than the Council has already done or offered. It would also be reasonable for the complainant to take any unresolved dispute about the Council’s common law duties or evidence about the effect of the trees to court as they are not matters of administration for the Ombudsman to consider.

The complaint

1. Mr B says the Council has failed to address or take enough action on his reports and complaints about the harm caused to his home and a footway, from uncontrolled growth of nearby highway trees. This includes:
• root disruption to:
1. the footway surface causing a significant hazard for pedestrian road users and anxiety from the risk of injury; and
• Mr B’s garden land and ground conditions, with a risk of harm or damage to the garden and nearby buildings causing Mr B and his wife serious anxiety and distress;
• excessive leaf fall on Mr B and his wife’s land causing a hazard and the need for excessive degrees of maintenance; and
• actual or suspected damage to the structure of their home from avoidable subsidence or ground movement.
2. He also says the Council has also caused him avoidable time, trouble and frustration in pursuing these matters from:
• failing to respond promptly to his contacts and complaints;
• wrong references to its statutory duties; and
• failing to recognise common law duties between adjoining land owners and in tort.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

5. 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)
6. 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

7. I considered information provided by the complainant and the Council’s responses to his complaints.
8. I have also considered images Mr B supplied and street view images available online.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

10. Mr B complained to the Council about the growth of roots and branches of highway trees near his boundary, which he says are having the effects set out in the summary of his complaint above. The Council initially failed to identify the trees as being in part of the highway, but corrected its mistake, inspected and proposed some work under its policy for maintaining trees. The work does not go as far as Mr B would like so he complained to us.
11. After the initial delay the Council reached a decision under its policy about what work to carry out. I recognise Mr B might disagree with the Council’s decision and have his reasons it should have reached a different one. But this amounts to a dispute about the decision rather than a complaint about the procedure by which the Council made it. Without evidence of fault in the process which could have affected the decision there is no basis for the Ombudsman to investigate.
12. Mr B has referred in his complaint to any common law duties the Council may have towards him and others. The Ombudsman cannot base decisions on the common law, which is the for the courts to consider when there are disputes, as there is here.
13. The Council accepted four months ago it would consider the effect of its duties under the Highways Act 1980 to maintain the footway and decide what action to take. As the injustice Mr B claimed in this part of his complaint is about the risk of harm or injury which has not happened, there is nothing more the Ombudsman could achieve on the point by investigating. If Mr B or someone else suffered harm or injury from the condition of the highway, the law provides a route to resolve a dispute claim for liability through the courts it would be reasonable to use, so we would not be likely to investigate anyway.
14. This also applies to the claimed effects of the trees on Mr B’s home, whether past, present or future. The Council says it will consider any evidence Mr B wishes to put forward which links the Council’s trees to a demonstrable effect on his home. The surrounding area is home to many trees and shrubs which have been there for many years, including before Mr B moved there. Without more evidence, neither the Council nor the courts (nor the Ombudsman) could show, even on balance of probability, it is the Council’s trees, rather than others, which are the cause of actual or potential damage, or the creation of significant annual hazards from leaf fall and debris. We would not therefore expect the Council to do more than this, so we could not achieve more by investigating.
15. It is also the case this is not a matter of administration for the Ombudsman to consider further. It is one of disputed responsibility it would properly be for a court to decide. It would therefore be reasonable for Mr B to provide the Council with evidence to consider, and take any unresolved dispute to court.

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Final decision

16. We will not investigate Mr B’s complaint because:
• we have no power to question a decision the Council has reached without evidence of fault in its process affecting the decision;
• the Council has accepted it is responsible for the condition of the footway and will decide what action to take, and we cannot achieve more than that;
• it would be reasonable for Mr B to pursue in court any unresolved dispute about;
1. the Council’s common law duties towards him or others; or
2. works required to the footway alongside the highway; or
3. loss, damage; injury or other effects allegedly resulting from the condition of the Council’s trees; and
• we will not investigate the Council’s handling of complaints and correspondence about a matter if we are not investigating the subject of the complaint.

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Investigator's decision on behalf of the Ombudsman