Summary: We will not investigate Mr X’s complaint about the Council’s involvement in works done by a neighbour during a development near his tree, and how it dealt with his complaint. There is not enough evidence of fault by the Council, nor sufficient significant personal injustice to Mr X caused by the Council, to warrant us investigating. We do not investigate councils’ complaint handling where we are not investigating the core issues giving rise to the complaint. We also cannot achieve the outcome Mr X seeks.

The complaint

1. Mr X lives next to a property whose owner received planning permission for development work. He complains the Council:
1. negligently instructed the neighbouring developer to do deep excavation within a metre of a tree on his property, not considering the safety and stability of the tree;
2. delayed in responding to his complaint then provided replies which did not address his concerns or give a resolution.
2. Mr X says he is worried that if the tree falls it could damage neighbouring properties, vehicles parked in a nearby area or injure people. He says he has spent time and been caused stress and frustration dealing with the Council.
3. Mr X wants the Council to:
• assess his tree or appoint suitably qualified people to confirm it is safe;
• accept responsibility or liability if the tree falls and damages property or people;
• inspect his tree annually if it has been destabilised, and pay for any remedial work to it;
• regularly trim his tree to ensure its stability.

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The Ombudsman’s role and powers

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; or
• any fault has not caused injustice to the person who complained; 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 and the Council, relevant online planning documents and maps, and the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says the Council’s Building Control officers gave the neighbouring developer two options for their construction’s foundations. He says the developer chose the option which involved deep digging close to his tree. Mr X considers this means the Council is responsible for any damage the developer’s excavations caused to his tree. On Mr X’s evidence, the Council did not instruct the developer to do deep excavations next to the tree. Nor did the Council do the digging. It was the developer’s decision to fulfil Building Control requirements by using that construction method. Any damage to Mr X’s tree would have been directly caused by the actions of the developer or contractor, not the Council’s officers. It was for the developer to decide how to implement their planning permission. Any claim of damage to Mr X’s tree would be a private civil matter between the developer and contractor and Mr X. We cannot make findings on legal liability for property damage. This would be a legal issue for the developer’s or contractor’s insurers to consider, or the courts as required. Mr X may wish to seek independent legal advice if he decides to pursue this claim.
7. Mr X also says in his complaint to us that he feels the Council’s actions were negligent. We cannot make findings of negligence. Negligence is a legal matter which only the courts can rule on. If Mr X wants a finding that the Council has acted in any way negligently here, he might pursue this claim at court.
8. In his complaint to the Council, Mr X claims Building Control officers should have told the developer that the works required them to apply the Party Wall etc. Act 1996. That is a further private civil matter between the developer and the Mr X. Even if Building Control officers had mentioned using the 1996 Act to the developer, they had no powers to enforce its use. Any claimed impact on Mr X of the developer not using the 1996 Act is due to that developer’s actions and inactions, not the Council.
9. Even if there was fault by the Council here we will not investigate. Mr X’s key claimed injustice is worry about what could happen to his tree, including that it might fail and damage people, property or both. No such event has occurred. We cannot take into account as injustices incidents which have not happened. We recognise Mr X has concerns about what might happen, but that worry does not amount to a sufficiently significant injustice to warrant us investigating. We also understand Mr X spent time and been caused some annoyance by during his complaint with the Council. But it was his decision to pursue the matter with the Council, rather than with the parties directly responsible for the works which he claims damaged his property. There is not enough significant injustice caused by the Council to Mr X here to justify us investigating.
10. Mr X complains about the Council’s complaints process. We do not investigate councils’ complaint handling in isolation where we are not investigating the core issues which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this complaint issue.
11. The complaint outcomes Mr X wants involve the Council assessing his tree for damage, doing and funding its future maintenance and taking responsibility for any damage his tree might cause. We cannot order a council to assess, maintain and accept liability for unknown impacts of a tree it does not own. That we cannot achieve the outcomes Mr X wants is a further reason why we will not investigate.

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Final decision

12. We will not investigate Mr X’s complaint because:
• there is not enough evidence of Council fault to warrant us investigating; and
• there is insufficient significant personal injustice to him to justify an investigation; and
• we cannot achieve the outcome he wants from his complaint.

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Investigator's decision on behalf of the Ombudsman