Summary: We will not investigate this complaint about damage caused by Council trees as it is reasonable to expect Mr X to seek a remedy in court.

The complaint

1. Mr X complains Council owned trees are causing damage to his fence. Mr X says the trees are not being maintained. Mr X wants the Council to rectify the situation.

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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 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)
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 there is not enough evidence of fault to justify investigating (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 provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council has told Mr X that it monitors the trees in respect of health and safety concerns, but that intervention is generally reserved for trees that are dead, dying or diseased. It said in the absence of a structural report evidencing damage caused by its trees, it did not accept liability.
8. The Council is entitled to formulate a policy in respect of tree maintenance and that it intervenes only in certain circumstances is not an indication of Council fault.
9. I recognise Mr X is unhappy as he says his property is being damaged, but in the absence of corroborating evidence of this, the Council has declined to accept liability. We cannot determine if the Council is legally liable for the damage or if it should compensate him for this as these matters can only be determined by a court. There is a relatively simple, low-cost procedure open to anyone to make a money claim in court so Mr X could take his own action or ask his home insurer for help. The first step would be for Mr X to submit a claim to the Council’s insurers, if he has not already done so.
10. As we cannot determine damage claims and there is a process open to Mr X to make such a claim, it is reasonable to expect him to use it, to resort to court action, and we will not therefore investigate.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable to expect him to seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman