Summary: We will not investigate this complaint about how the Council responded to reports of property damage from a tree. This is because it would be reasonable for Mr X to make a claim to the Council’s insurer, then at court if required to pursue the legal liability finding of property damage and redress.

The complaint

1. Mr X complained the Council did not assist him to remove part of a tree which had fallen onto his property. He said the Council should have assessed the tree and identified land ownership. Mr X said this has had a financial impact on him to have the tree removed. He would like the Council to have assisted with the cost to remove the tree.

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The Ombudsman’s role and powers

2. 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)
3. 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 further investigation would not lead to a different outcome, or

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

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The core issue is whether the Council owns the land where a fallen part of a tree damaged Mr X’s property. The Council’s final position is that it does not own the land the tree is on, and it is not responsible for the tree or associated damage. Mr X disagrees and considers the Council bears responsibility for the tree and the damage caused.
7. We cannot determine land ownership and so cannot say whether the Council is responsible for the tree in question. This is a matter only a court or insurer could determine. This means we cannot say it is fault for the Council not to assist with the removal of the tree part on Mr X’s property. Investigation of this issue would not lead to a different outcome because we cannot resolve the core disagreement on whether the Council is responsible for the tree.
8. Even if the Council is responsible for the tree, Mr X’s main complaint is one of liability for the damage caused to his property. Liability for property damage is a legal issue which only insurers or courts can determine, not the ombudsman. Mr X may make a claim against the Council’s insurers.
9. Should an insurance claim not resolve the issue of ownership of the land, or his claim for damages, these would be matters Mr X may take to court. It would be reasonable for Mr X to take this legal liability issue to court if required because it would then be a matter only a court could determine.

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Final decision

10. We will not investigate Mr X’s complaint because it would be reasonable for him to make a claim to the Council’s insurer, then to the courts if required to pursue the required legal liability finding of property damage and redress.

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Investigator's decision on behalf of the Ombudsman