The Ombudsman's final decision:
Summary: Mrs Y asked the Council to maintain trees which ran along her property border. The Council agreed to do so. It later withdrew the agreement saying that the trees were not its responsibility. Mrs Y had the trees felled and sent the Council the bill. The trees formed a border feature running along the edge of her property and were only the Council’s responsibility as highways authority. However, a Council officer told her it would prune the trees. She should not have had them felled but the Council should fund a percentage of the cost.
- The Complainant, who I shall call Mrs Y, complains that the Council agreed to prune trees running along the border of her land and later withdrew their agreement.
The Ombudsman’s role and powers
- 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)
- 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
How I considered this complaint
- I corresponded with Mrs Y and made enquiries of the Council. I examined plans and maps and considered the relevant law. I have asked Mrs Y to mark her property and the site of the trees on a map.
- I sent a copy of my draft decisions to Mrs Y and the Council for their comments.
What I found
- The Council has a duty to carry out felling and maintenance of trees on Council land but not those on private land unless it has a good reason to do so; for example, if a tree is causing a nuisance, a danger or an obstruction to a public highway.
- By virtue of Part IV of the Highways Act 1980, the Council has a duty to maintain highways in its area as the highway authority. The highway includes verges.
- S.38(3) of the Act says that if land is adopted by the Highway Authority, it becomes part of the highway, maintainable at public expense by the highway authority.
- The Council does not own the land that it adopts as part of the highway. The subsoil belongs to the previous owner.
- In the mid 1980s, the area in question was developed. A developer gained planning permission for a development of fewer than ten substantial residences with gardens. These were to be accessed from a new access road, Road N.
- Road N ran parallel with Road A (a major road) but was accessed from Road B, a small side road which led off Road A at 90°.
- Mrs Y’s residence comprises two cottages which existed before the development was built and which, after the development was complete, stood close to the access road, Road B, between Road C, the development, and Road A (the main road). Its garden is surrounded by a fence.
- The developers carried out works around Mrs Y’s property. The s.38 plans show Mrs Y’s property surrounded by land marked in pink which was offered for adoption by the Council in its role as highway authority.
- The plans show that ‘the existing fence and hedge [along the edge of Mrs Y’s property and beyond was] to be improved’ and that ‘work [was] to be carried out to this area (the area where the trees stood) to achieve sight line to satisfaction of highway authority. Area then to be offered for adoption’.
- Records show the area, shaded in pink on the s.38 plan, was adopted in 1988.
The current dispute
- In mid 2016, Mrs Y contacted the Council and complained that the trees near her garden wall had grown out-of-control and needed pruning. She said that her garden was becoming overshadowed. Mrs Y says that the Council had carried out maintenance on the trees since 1986.
- A Council officer visited her at her home. The Council states that the officer in attendance agreed that the trees needed to be reduced in height by 20%.
- Mrs Y received a letter from the Council’s Streetscene Services dated 15 June 2016 which stated ‘The trees have been inspected and works are considered to be necessary. These works will be scheduled in, with the necessary works required, into our arboriculture works programme’.
- However, the works were not done. After four months, having heard nothing, Mrs Y complained to the Ombudsman.
- In early November 2016, both the Ombudsman and Mrs Y pressed the Council to make a decision. Mrs Y obtained a quote from a tree surgeon for the removal of the trees (£2200) and wrote to the Council asking them again to maintain the trees.
- Shortly thereafter, Officer C of the Council wrote to Mrs Y saying that the highway authority (which was the Council) had adopted the land up to the edge of the ‘border feature’ – that is, up to the edge of the trees and was not, therefore, responsible for the trees or the land on which they stood.
- Later in November, Mrs Y had the trees cut down and sent a bill for £2200 to the Council.
- In late November 2016, Officer D of the Council carried out a site visit. After measurements, he repeated the Council’s position that the Council was responsible for the grassy verges of the road and not for the trees.
- In mid December 2016, Officers C and D visited Mrs Y’s house. They took measurements. Mrs Y says that they accepted that the trees were growing on land adopted by the Council.
- On the same day Officer D wrote to Mrs Y saying again that he considered that the trees formed part of a private boundary feature and was not the Council’s responsibility.
- The next day, Mrs Y wrote back to the Council stating that ‘the conifers were planted outside of my property boundary line and have been maintained by [the Council] in the past’.
- Mrs Y has since written to the Ombudsman stating that she has now erected a fence to surround her property and that the roots of the trees have damaged her garage. Remedial work is required. She intends to charge the Council for these.
- Mrs Y argues that the trees are not on her land as they lie beyond her garden boundary in land adopted by the Council. She argues that the Council has maintained them for the last 30 years and has therefore assumed a responsibility to continue to do so. She also says that the Council agreed to carry out the works in June 2016.
- The Council now states that it is not responsible for the trees because they formed part of a border feature. It says it has maintained the area, in its role as highway authority, only to the extent that it has prevented them from interfering with the highway. It says it did not prevent the trees from encroaching on or overshadowing Mrs Y’s garden because it had no duty to do so.
- It is stated on the s.38 plan that the developers would improve the existing fence and hedge. It is also stated that the Council would offer the area beyond to the Council for adoption after carrying out improvements.
- On looking at the site on Google Maps, one can see that the trees complained of, shown in 2012, stretch in a straight line and form a border feature. Beyond them is a well-tended verge. The trees are coniferous. It seems that the lower branches have been pruned to prevent them spreading on either side where accessible from the road. They seem also to have been ‘topped’ apart from adjacent to Mrs Y’s property where they are tallest and bushiest.
- I find, on the balance of probabilities, that the trees are part of the improved border feature mentioned in the s.38 adoption plan. As such, they are not part of the land that was adopted by the Council but form the border between that land and Mrs Y’s garden.
- The Council has stated that it would not have planted such trees as they are fast growing.
- The border hedge appears to comprise fast growing conifers such as Leylandii. The grass verge is maintained to allow a line of sight for cars coming in and out of Road B onto the main road, Road A. For this reason, the Council appears to have pruned the trees to prevent the branches spreading over the verge.
Ownership of land/responsibility for damage caused by trees
- The Council is also correct in its assertion that, even if the trees are on the adopted land, and, therefore, to some extent the responsibility of the Council, it does not follow that it owns either the land or the trees or has assumed the duty of care that an owner would owe to Mrs Y.
- The Council maintains that, by adopting the land as part of the highway, it does not assume ownership but only a duty to maintain the highway. It states that the subsoil continues to belong to whoever owned it before the Council adopted it. This position accords with the position set out by the Land Registry.
- Further, even if the Council has a duty to maintain the trees to ensure the safety of the highway, it does not follow that it owns the trees or that it has assumed any duty to prevent the trees’ roots from damaging neighbouring properties.
- Mrs Y states that the trees’ roots have damaged her garage. I have seen no evidence that this is the case. But, even if I had, it would not be a matter for the Ombudsman but for the courts.
- Mrs Y argues that, in tending the trees for the previous 30 years, the Council had assumed a duty to continue to do so. I do not accept this. The Council had no duty to prune the trees and the evidence seems to be that it did so only to maintain the sightlines on the highway.
- However, the Council agreed to carry out work to the trees in June 2016, and then failed to do so. Mrs Y had a legitimate expectation that it would carry out the work.
- Both Mrs Y and the Council agree that a Council officer visited her house in June to inspect the trees. The Officer sent Mrs Y a letter in June 2016 stating that the necessary works would be completed.
- Mrs Y states that, during the meeting, the officer agreed that it would be necessary to remove the trees. The Council states that, in fact, he only agreed that it would be necessary to reduce the height of the trees by 20%.
- Mrs Y has provided no evidence of what the officer said at the meeting and so I do not accept her version of events. The officer did, however, agree to reduce the height of the trees so I have recommended that it should pay her 20% of her costs.
- The Council has agreed to pay Mrs Y £440.
- Having agreed to undertake works on trees around Mrs Y’s garden, the Council was at fault for its failure to do so but there is conflicting evidence as to what works the Council actually agreed to do. The Council has agreed to pay her a sum in recognition of its fault and I have therefore decided to close my investigation.
Investigator's decision on behalf of the Ombudsman