Summary: We will not investigate this complaint that the Council has unreasonably failed to take action to mitigate issues caused by a highway tree. There is insufficient evidence of fault on the Council’s part to warrant our intervention.

The complaint

1. The complaint, Mr X, complains that the Council has failed to take action to mitigate issues caused by a highway tree outside his property.

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The Ombudsman’s role and powers

2. 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)
3. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X’s complaint concerns a highway tree located outside his property. Mr X contends that it has not been properly maintained and is inappropriate for a residential street. He says it has caused significant problems which the Council has failed to mitigate.
7. Mr X says the tree overhangs his property and drops sap and debris. It also causes bird droppings and loss of light. He further contends that the tree roots are causing ongoing damage to his driveway, as well as the highway, and causes water to pool on his property. He wants the Council to remove the tree and accept responsibility for damage to his property.
8. The correspondence shows that Mr X has brought his concerns to the Council’s attention over the last few years, and that the Council has carried out inspections in response. It has agreed to install a root barrier but has explained that there are no grounds on which to carry out further works.
9. It is not for the Ombudsman to take a view on whether work or removal of the tree is required. That is a matter for the professional judgement of the Council’s officers. Mr X disagrees with the Council’s decision not to carry out work. But that does not mean it amounts to fault. The reasons the Council has given for its decision are properly set out and there is no indication of fault in the way the officer’s reached their view. That being the case the Ombudsman cannot criticise the decision, or intervene to substitute an alternative view.
10. Neither can we express a view on whether the tree has caused damage to property as a result of inaction on the Council’s part. Only a court can decide whether Mr X’s property has suffered such damage and if that damage results from negligence on the Council’s part. If Mr X wishes to establish this, he may choose to make a claim for damages against the Council. There is no role for the Ombudsman.

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Final decision

11. We will not investigate Mr X’s complaint because there is insufficient evidence of fault on the Council’s part.

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Investigator's decision on behalf of the Ombudsman