Summary: Mr B complains the Council has refused to take legal ownership of trees which are causing a nuisance to his garden. The Ombudsman will not investigate the complaint because the courts are best placed to determine the matter.

The complaint

1. The complainant, who I refer to as Mr B, says the Council has refused to take ownership of trees on land previously owned by a council to which the Council is a successor. He says the Council should accept legal ownership of the trees which are causing him a loss of light and a nuisance to his garden.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

6. In considering the complaint I reviewed the information provided by Mr B and the Council. I gave Mr B the opportunity to comment on my draft decision and considered what he said.

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What I found

7. Mr B’s property is affected by trees on land adjacent to his boundary which block out light and cause nuisance with leaf fall and over hanging branches.
8. There is a dispute as to whether the land on which the trees are sited formed part of a land transfer a number of years ago between the then existing council and a housing association. The Council is successor to the earlier council.
9. In 2018 Mr B complained to the Council about the trees and while it undertook to cut back some of the over hanging branches to avoid safety issues, it explained to Mr B that the trees are rooted in land outside the Council’s ownership. It told him that because of this, and because the trees were not causing a danger to the public highway, the Council did not have responsibility for undertaking works.
10. When Mr B raised the matter again with the Council 18 months later it told him that having consulted with its Legal Team its position remained the same and advised him to seek his own independent legal advice.

Assessment

11. Mr B says the land on which the trees are sited belongs either to the Council as successor to the previous council or to the housing association. He has asked the Ombudsman to end the dispute and come to a judgement on who owns the land. However, such a decision is a legal matter for the courts and not the Ombudsman to decide and for this reason we will not investigate the complaint.
12. Moreover, Mr B has known about this issue for a number of years and so the restriction highlighted at paragraph 3 also applies to the complaint and I see no grounds which warrant exercising discretion to investigate it now.
13. In responding to my draft decision Mr B says he continued to pursue the matter within the 18 months between his two complaints and so the time restriction should not apply. However, the complaint will not be investigated by the Ombudsman because land ownership is a matter for the courts to determine.
14. Mr B says he wants the Council to make available to him all the documents it holds about the land transfer which he assumes will record the information used by its Legal Team in coming to its view. It is open to Mr B to make an FOI request to the Council for this and if he remains dissatisfied with what the Council provides then he can contact the Information Commissioner and submit an appeal.  

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Final decision

15. The Ombudsman will not investigate this complaint. This is because the courts are best placed to determine the matter.

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Investigator's decision on behalf of the Ombudsman