Summary: We will not investigate Mr X’s complaint about damage to his property caused by Council-owned trees and shrubbery. This is because it is reasonable for Mr X to submit a claim to the Council’s insurers, and if needed take the matter to court.

The complaint

1. Mr X complained about damage to his fence caused by Council-owned trees and shrubbery.
2. Mr X says he wants the Council to pay for replacement fencing and posts.

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The Ombudsman’s role and powers

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

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

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My assessment

7. Mr X complained that Council-owned trees and shrubbery were not properly maintained and had damaged his fence and fence posts due to their growth.
8. The Council said that it had inspected the site and the damage to the fence was caused by the posts rotting and not trees or shrubbery from Council land.
9. If he disagrees, Mr X could submit a claim to the Council’s insurers. If the claim is rejected, Mr X could take the matter to court. It is reasonable to expect Mr X to do this.
10. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. We have no powers to compel the Council to pay for the repairs and only the courts can do this.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable for him to take the matters complained about to court.

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Investigator's decision on behalf of the Ombudsman