Summary: We will not investigate Mr B’s complaint that his property is being damaged by a Council-owned tree. This is because it is reasonable for Mr B to take the Council to court.

The complaint

1. Mr B says parts of his property have been damaged by a tree on an adjoining footpath. Mr B says the Council has wrongly said the footpath does not belong to the Council and it is not responsible for this tree. Mr B would like the Council to remove this tree and repair the damaged parts of his property.

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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 Act 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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Our role is to consider complaints of administrative fault. We do not normally investigate complaints about damage to property. This is because such complaints are about whether an organisation has been negligent. This is for an organisation’s insurers, and if needed, the courts to decide.
7. Mr B may put in a claim to the Council’s insurers for the damage to his property. If the Council maintains its position that it is not responsible for the damage, Mr B may pursue his claim by taking the Council to court.
8. I find it is reasonable for Mr B to do this. The initial fee is relatively modest and help with fees is available for people on a low income.
9. So, we will not investigate this complaint.

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Final decision

10. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman