Summary: We will not investigate this complaint about the Council’s refusal to provide advice on how Ms X can deal with a Council owned tree which is growing on her boundary. She says the tree has damaged the existing fence and is preventing her from installing a new secure boundary fence. We have not seen enough evidence of fault in the Council’s actions. Also, we cannot require the Council to remove the tree or decide if the Council is liable for the damage to Ms X’s property and whether it is responsible for her being unable to secure her boundary.

The complaint

1. Ms X complains the Council refuses to respond to her request for help about a tree growing on the boundary of her mother-in-law’s garden. She says the tree has damaged her property and they cannot install a new fence to secure the boundary because of the tree.

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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 not enough evidence of fault to justify investigating. (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 Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X complained to the Council about a tree on council land growing through her mother-in-law’s boundary fence.
7. The Council advised Ms X could trim the tree back to the boundary line but this must not affect its stability.
8. Ms X says her tree surgeon says they cannot trim the tree back as 80% of the branches are over her land. She also says the tree has damaged the existing fence and is preventing her from erecting a new secure fence.
9. The Council confirmed it will not permit the tree to be felled. It has confirmed Ms X can trim back the branches to the boundary. It also suggested she could install an additional fence on her side of the boundary and this would not affect the legal property boundary. I have not seen enough evidence of fault in the Concil’s actions to justify an investigation into this point.
10. I understand Ms X wants to install a new fence but says she cannot do so because of the position of the tree growing on the Council’s land. However, the Council is the owner of the tree and we cannot require it to remove it.
11. In her correspondence with the Council Ms X suggested the tree has damaged the fence. Our role is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property, only the insurers or the courts can do this.
12. The Ombudsman cannot determine if the Council is liable for the damage to Mrs X’s property and whether it is responsible for her being unable to secure her boundary. It is therefore reasonable to expect her to claim on the Council’s insurance. If the insurers refuse her claim, she can take the matter to court.

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Final decision

13. We will not investigate Mrs X’s complaint because we cannot require the Council to remove the tree. Also we cannot determine whether the Council is liable for the damage to Mrs X’s property and her inability to secure her boundary. It is reasonable expect her to claim on the Council’s insurance. If that fails, she can take the matter to court.

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Investigator's decision on behalf of the Ombudsman