Summary: We will not exercise discretion to investigate this complaint about damage caused to the complainant’s garden by the Council planting invasive bamboo nearby. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council.

The complaint

1. Ms X complains about the Council planting an invasive bamboo plant next to her property. Ms X says the bamboo has encroached on to her garden and caused significant damage. She would like the Council to take remedial action urgently.

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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. 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. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. I will not exercise discretion to investigate because the matter of liability for damages is usually between the Council’s insurers and the courts. It is reasonable for Ms X to take her claim to court to protect her private property. The court can decide liability and if Ms X is entitled to damages.
6. There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.

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Investigator's decision on behalf of the Ombudsman