Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of trees it owns next to his property and it deciding it will not allow him to pollard them. There is not enough evidence of fault, nor sufficient significant personal injustice caused to Mr X by the matters complained of, to warrant us investigating. We also cannot achieve the complaint outcome he seeks.

The complaint

1. Mr X lives in a property bordering Council-owned land to the rear which contains two tall trees. He has been in contact with the Council about the trees for about seven years. Mr X complains the Council:
1. has failed to maintain the trees;
2. has failed to notice one of the trees is diseased;
3. will not allow him to pay for the trees to be pollarded.
2. Mr X says the two trees tower over his and his neighbours’ gardens and are oppressive. He says the trees’ branches are almost overlapping because they are closer together than the recommended separation distance. Mr X says the leaf fall from the trees is ‘horrendous’ and there are too many for him to dispose of. He is concerned the trees’ roots might affect his and his neighbours’ properties. Mr X wants the trees reduced in size, preferably pollarded.

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The Ombudsman’s role and powers

3. 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)
4. 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 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))

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How I considered this complaint

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

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My assessment

6. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
7. In response to Mr X’s concerns, the Council’s officers visited the site. They noted the trees are not in the ideal location but considered the impacts they currently have on surrounding properties did not outweigh the benefits provided to all residents. Officers recognised the trees caused shadowing to Mr X’s property and drop many leaves. But they explained it was not the Council’s policy to remove or significantly reduce trees due to such natural impacts. Officers noted the disease to one of the trees but determined its condition did not warrant action. They explained to Mr X why they did not consider pollarding would be a suitable procedure for the trees. The Council decided the trees would continue to be inspected and officers would respond to any further reports received if the trees’ condition changed.
8. Officers gathered relevant information about the trees by visiting. They considered the information against the Council’s policy and applied their professional judgement to determine what works were required and rule out other works options for the trees. There is insufficient evidence of fault in the Council’s decision-making process here to warrant us investigating. 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.
9. Even if there had been fault by the Council here, we would not investigate. We recognise the trees’ presence causes Mr X inconveniences. But overshadowing from the trees when in leaf, and the leaf drop in autumn and winter cause insufficiently significant injustice to warrant us investigating. We note Mr X is concerned about damage by the trees’ roots in future. But this impact has not occurred. We cannot consider injustices from events which have not happened. In any event, if Mr X believes the Council’s trees have damaged his property, this would be a legal liability claim. We cannot decide claims of responsibility for property damage. Only an insurer or the courts can make legal liability decisions.
10. We note the complaint outcome Mr X wants is for the Council to agree to the trees being pollarded. We cannot order councils to do or agree to particular works to its trees. That we cannot achieve the outcome Mr X seeks is a further reason why we will not investigate.

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Final decision

11. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• there is insufficient significant personal injustice caused to Mr X by the matters complained of to justify an investigation; and
• we cannot achieve the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman