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 complains a council-owned tree caused damage to her property, and the Council has refused to accept liability for the damage.
2. Ms X says this has caused distress.
3. Ms X wants the Council to remove the tree and reimburse her for the cost of repairing the damage to her property.

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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)

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How I considered this complaint

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

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My assessment

8. 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.
9. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
10. We will not investigate this complaint. We cannot decide liability, order the Council to remove the tree, nor direct it to reimburse Ms X for the cost of repair to her property, so it is reasonable for her to take the matter to court.

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Final decision

11. We will not investigate Ms X’s complaint because it is reasonable for her to take the matter to court.

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Investigator's decision on behalf of the Ombudsman