Summary: We will not investigate Mr X’s complaint about the Council’s assessment of risks and damage caused by nearby highway trees it owns, and its decision not to remove them. There is not enough evidence of Council fault to warrant us investigating. There is insufficient significant personal injustice to Mr X by the matters complained of to justify investigation. It would be reasonable for him to take any legal claim for property damage to the Council’s insurer and to court if required, and any claim of illegality by the Council to court. We also cannot achieve the key outcome Mr X wants.

The complaint

1. Mr X lives in a property on a road with large Council-owned trees. He complains the Council:
1. has not taken into account the damage caused by the trees’ roots to the road surface, the risk they pose to infrastructure and the impacts on residents;
2. has refused to remove the trees, which are not suitable for their roadside location;
3. agreed to fell the trees but then wrongly changed that decision;
4. is not complying with national laws.
2. Mr X says he is concerned about damage to the highway and underground infrastructure by the tree roots and from branches falling on to his property. He says he has had to replace his boundary wall because of root damage and considers his garage and house are at risk. Mr X says the trees are dirty and drop enormous quantities of leaves on his property.
3. Mr X wants the Council to remove the trees as soon as possible and accept the residents’ offer to pay for that work. He wants the Council to prioritise the concerns of residents affected by the trees, not those of objectors to the trees’ felling who live elsewhere.

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The Ombudsman’s role and powers

4. 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)
5. 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
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

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

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 from Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.

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My assessment

8. The Council initially agreed to remove the trees and the works were scheduled for spring 2024. Officers advised the contractor a few days before the works were due to happen that the matter would need to go through a recently adopted public consultation process, in line with new national government legislation. The outcome of the decision-making process in summer 2024 was that officers decided they should retain the trees, reinspecting them in line with their usual inspection scheme.
9. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation has followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, even if someone disagrees with it.
10. He believes the Council did not take into account its own tree officer’s view that the trees should be removed, nor his and other residents’ support for their removal. The Council says removal would have been an option, but that this would have been pre‑emptive removal because their surveyor determined the trees had not outgrown their location. There is some damage to the roadway near the trees. But officers say they have not received reports of problems caused by the tree to highways or other services from the bodies responsible for underground infrastructure. Once they considered the information about the trees and the responses during the consultation, they decided to retain them.
11. Mr X considers there was fault in the Council’s application and adoption of the new consultation procedure regarding removal of the trees. Recent national government legislation requires councils to consult the public on proposed works to a street tree, a requirement now within the Environment Act 2021 and the Highways Act 1980. We note Mr X considers the Council believes officers could have used the exception provided by the legislation where a street tree is dangerous or causing damage so as not to consult. But the Council did not determine the trees to be so hazardous or causing such damage as to qualify them for exemption from consultation. It based this on information gathered from its assessments of the trees and their impacts, which would be the relevant information.
12. There is not enough evidence of fault in the Council’s decision-making here to warrant us investigating. The Council considered appropriate evidence to reach their view that they should consult the public on the matter, and to then retain the trees. The assessment included consideration of the damage caused by the trees and the potential for future damage. After following these processes, officers concluded the trees should be retained and managed under its inspection procedures. 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.
13. Even if there had been Council fault here which led to the trees’ retention, we would not investigate. We realise Mr X is concerned about what future damage tree roots may cause to the highway and underground infrastructure, and damage from falling branches. But the road remains passable by road users and there is no indication roots have disrupted other services such as drainage, water, gas or electricity. Mr X does not report incidents of damage to his property from fallen branches. We cannot consider speculative injustices from events which have not happened. We recognise Mr X had raised expectations by the Council indicating it would fell the trees then changing its view. But that disappointment did not stem from a process involving Council fault and, in any event, would not have amounted to such a significant injustice to him to justify us investigating. Mr X mentions the trees drop many leaves on his property. Leaf clearance would cause Mr X some inconvenience but this, and the totality of the claimed injustices here, would not have caused such significant personal injustice to warrant investigation.
14. Mr X says tree roots have damaged his wall and he had to replace it. He also reports root damage to his driveway. These issues amount to claims of property damage caused by the trees. It is a claim of legal liability for that damage against the Council as the trees’ owner. We cannot decide such claims. Only an insurer or a court can determine liability for property damage. Mr X may make a claim against the Council’s insurer for his reported damage. If the insurer rejects his claim, the Council’s liability or otherwise for the claimed damage would then be a matter only a court could decide. It would be reasonable for Mr X to pursue that route if required because it would put his claim before the bodies which have the standing and remit to consider the legal liability claim made.
15. Mr X considers the Council may have breached the Occupiers’ Liability Act 1957 and the Highways Act 1980 when dealing with this matter. As explained above, we cannot make legal rulings. Only a court can do this. If Mr X wants a ruling on whether the Council has broken these or any other laws, he would need to take this claim to court. It would be reasonable for him to do so because it is only the court which has the powers to determine such a claim.
16. The core outcome Mr X wants from his complaint is for the Council to fell the trees as soon as possible. We cannot order councils to agree to the removal of their trees. That we cannot achieve this key remedy for Mr X is a further reason why we will not investigate.

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Final decision

17. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process regarding the trees to warrant us investigating; and
• there is insufficient significant personal injustice caused to him by the matters complained of to justify an investigation; and
• it would be reasonable for Mr X to take any legal claim for property damage to the Council’s insurer and the courts if required, and any claim of illegality by the Council to the courts; and
• we cannot achieve the key outcome Mr X wants from his complaint.

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Investigator's decision on behalf of the Ombudsman