Summary: We will not investigate Ms X’s complaint about damage caused to her property by a council-owned tree. Only the courts can determine liability for the damage, so it is reasonable for Ms X to take the matter to court.

The complaint

1. Ms X complained a council-owned tree caused damage to her property.
2. Ms X said this caused distress and created a hazard on her property.
3. Ms X wants the Council to repair the damage caused to her property by the tree.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)

Back to top

How I considered this complaint

6. I considered information provided by Ms X.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. The Council has told Ms X it does not accept liability for the damage caused to her property.
9. We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
10. We cannot determine liability for the damage to Ms X’s property, only a court can. Additionally, we cannot instruct the Council to carry out repairs to Ms X’s property.
11. We will not investigate this complaint. The courts are better placed to consider these matters and provide a suitable remedy.

Back to top

Final decision

12. We will not investigate Ms X’s complaint because there is an alternative remedy available through the courts that it is reasonable to expect her to pursue.

Back to top

Investigator's decision on behalf of the Ombudsman