Summary: We will not investigate Ms X’s complaint about maintenance of a tree near her home. The Council has told Ms X it is not responsible for the tree, as it is not on Council-owned land. If Ms X disputes this, the courts are better placed to resolve this matter. If Ms X considers the Council liable for damage to her property, this is better considered by the Council’s insurers or the courts.

The complaint

1. Ms X complains the Council has failed to adequately maintain a tree it is responsible for on Council-owned land. She says the tree is causing damage to her property. She wants the Council to adequately maintain or remove the tree.

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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:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

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)

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How I considered this complaint

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

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My assessment

6. In its complaint response, the Council told Ms X the tree was not on Council-owned land, and so it was not responsible for managing the tree. We will not investigate this. We cannot resolve a dispute about land ownership, only a court can do this. If Ms X disputes the Council’s position, this matter is better considered by a court.
7. We will also not investigate Ms X’s complaint that the Council is responsible for damage to her property caused by the tree. We cannot decide whether a Council is liable for any damage and whether it should pay Ms X compensation. This is better considered by the Council’s insurers and if necessary, the courts. If Ms X considers the tree has caused damage to her property and the Council is liable, it is open to her to submit a claim to the Council’s insurers. If she is dissatisfied with the outcome, it is reasonable for her to take the matter to court.

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Final decision

8. We will not investigate Ms X’s complaint because the courts are better placed to resolve a dispute about land ownership and if Ms X considers the Council liable for damage to her property, she can claim through the Council’s insurers and if dissatisfied with the outcome, take the matter to court.

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Investigator's decision on behalf of the Ombudsman