Summary: We will not investigate this complaint about the Council’s failure to consider if a protected tree presents a statutory nuisance. There is insufficient evidence of fault which would warrant an investigation. It is reasonable for the complainant to apply to the Council to carry out work to the tree or to take legal action against her neighbour over any damage to her property.

The complaint

1. Mrs X complained about the Council’s failure to take action over a large tree in a neighbour’s garden which she claims is causing damage to her property and nuisance from leaf and debris deposits. She wants the Council to allow the neighbour to carry out work on the tree which is protected by a tree preservation order. The Council rejected the neighbour’s previous applications to reduce the tree’s size.

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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, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant and the Council’s responses.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs X says the Council failed to take action over nuisance and damage which she claims is being caused by a large tree in a neighbour’s garden. The neighbour applied to have the tree reduced to a shape and size which would manage its growth but the Council refused his application for work to a protected tree. We cannot consider this decision because it was reasonable for her neighbour to appeal the Council’s decision to the Secretary of State if they which to challenge it.
6. She says that the Council should serve an abatement notice under the provisions of the Environmental protection Act 1990 but it says that this is not a statutory nuisance matter and damage to property by trees is a common law matter between the tree owner and affected neighbours.
7. Because the tree has a tree preservation order (TPO) in place this is essentially a planning matter and the application to carry out works was the correct route to pursue. This is also open to Mrs X. Her neighbour could also seek an exemption from the TPO restriction by asking the Council for a declaration under s.198 of the Town and Country planning Act 1990. This legislation also carries a right of appeal to the Secretary of State if it is refused.
8. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether someone disagrees with the decision the organisation made.

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Final decision

9. We will not investigate this complaint about the Council’s failure to consider if a protected tree presents a statutory nuisance. There is insufficient evidence of fault which would warrant an investigation. It is reasonable for the complainant to apply to the Council to carry out work to the tree or to take legal action against her neighbour over any damage to her property.

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Investigator's decision on behalf of the Ombudsman