Summary: Mr X complained the Council would not take action about a tree owned by a third party causing damage on his property. Mr X also complained the Council would not comment on a planning matter. We will not exercise discretion to investigate this complaint because Mr X can take the matter to court.

The complaint

1. Mr X complained the Council would not act about a tree growing on land belonging to a social housing landlord but causing damage on his property. Mr X also complained the Council would not provide comment on a planning application that has not been presented to it. Mr X stated this had caused him inconvenience by preventing him from making repairs on his property.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I read Mr X’s complaint and the documents he provided. I also read the documents provided by the Council. Mr X had an opportunity to comment on my draft decision. I considered his comments before making a final decision.

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What I found

5. Mr X first complained to the Council about the tree on an adjoining property in 2017. He complained to us in 2018 about the tree with other matters. In 2018 the Council was consulting with specialists on how to deal with the tree.
6. Mr X contacted the Council again in 2019 asking them to remove the tree. Mr X also asked the Council to confirm any plans for the buildings on the neighbouring land.
7. The council responded in November 2019 and told Mr X the Council’s consent was not needed to work on or remove the tree. The Council stated the land was owned by a social housing landlord. It confirmed that planning permission had been granted for the land in 1993 and it was not aware of any current plans to sell or redevelop the land. The Council recommended that Mr X confirmed this at his meeting with the landlord.
8. Mr X had a meeting on site with the social housing landlord after he had received the Council’s letter. The Council was not part of this meeting or the discussions held there.
9. In April 2020 Mr X again contacted the Council. He wanted the social housing landlord to agree to, and part fund, the rebuild of a damaged boundary wall at his property. Mr X asked the Council for confirmation of potential redevelopment of the land he had discussed with the landlord during the meeting in November 2019. Mr X also asked again for the Council to remove the tree as it had become dangerous.
10. The Council did not reply to Mr X’s questions and he sent them again in June, July, August, September, October and complained to us in November 2020.
11. The Council provided a final response in February 2021 and apologised for the delay in replying to Mr X. It stated the land was owned by a social housing landlord and Mr X must make any enquiries with the owner about the repair of the wall and managing the tree.

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Analysis

12. The restriction outlined in paragraph 2 applies because Mr X could have made a claim against the Council when he became aware of the tree causing damage on his property in 2017. The Council told Mr X the social housing landlord was the owner in 2019. Mr X can make a claim against the social housing landlord. If the landlord’s insurers reject the claim Mr X can take the matter to court because this is a private legal matter. We have discretion to disapply this rule where we decide it would be unreasonable to expect Mr X to appeal. In this case I have decided not to exercise discretion because it is reasonable that Mr X should go to court.
13. The restriction outlined in paragraph 3 applies as we cannot make the Council provide an answer on a planning permission that has not been submitted. Mr X had a conversation with a third party about potential redevelopment. The Council was not involved in that conversation and cannot provide comment on it.

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Final decision

14. We will not investigate this complaint. This is because Mr X is able to take the matter to court and it is reasonable that he should do that.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman