Summary: We will not investigate Mr X’s complaint about damage to his property he says is due to a council owned tree. This is because there is not enough evidence of fault by the Council and claims for damage are best resolved by insurers and the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains a council owned tree has damaged his own property. Mr X wants the Council to remove the tree.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
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 Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

5. Mr X contacted the Council because he is concerned a tree on council land is causing cracks to his own property. Mr X is worried the cracks will become worse. He is also concerned the tree could cause severe damage if it were to fall over. Mr X wants the Council to remove the tree.
6. In its response to Mr X the Council has said it has inspected the tree twice and has no “health and safety concerns”. It arranged for remedial work to be carried out to a nearby garage block which neighbours Mr X’s property, and which is also subject to cracking. The Council has said that if Mr X feels the tree has damaged his property, he should contact his insurers and the Council will respond to his claim.
7. The role of the Ombudsman is to look for administrative fault. We cannot question decisions without evidence of fault in how they were reached. The Council has considered Mr X’s concerns and has visited the site. It has decided the tree does not pose a risk and so it will not remove it. This is a decision the Council is entitled to reach and is in line with its published policy. It is not therefore one the Ombudsman will question.
8. Now the Council has responded to Mr X it is open to him to make a claim for damages. Such matters are for insurers, and ultimately, the courts. If the Council rejects a claim for damages from Mr X or his insurers, it is reasonable for him to take the matter to court. The court can decide if the Council has been negligent and has caused damage to Mr X’s property. It can decide if damages should be paid and what actions, if any, the Council should take. These are not decisions the Ombudsman can take, and so we will not investigate.

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Final decision

9. We will not investigate Mr X’s complaint. This is because there is not enough evidence of fault by the Council and claims for damage are best resolved by insurers and the courts.

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Investigator's decision on behalf of the Ombudsman