Summary: Mrs X complained about the Council’s failure to take action over a tree which she says is causing root damage to her property and nuisance from overhanging branches. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns claims about liability for damage to property which is a private legal matter. Only insurers or the courts can determine legal claims.

The complaint

1. The complainant, whom I shall call Mrs X, complained about damage from roots form a neighbouring tree maintained by the Council. She says a root barrier failed to contain the problem and her car and driveway suffer from debris falling from overhanging branches. She wants the Council to inspect the root barrier and pay for damage to her property. If it cannot maintain the tree, she wants it to be removed.

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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)

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How I considered this complaint

3. I have considered all the information which Mrs X submitted with her complaint. I have also considered the Council’s response. Mrs X has been given an opportunity to comment on a draft copy of my decision.

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What I found

4. Mrs X says a large oak tree belonging to the Council is causing damage to her property from roots growing under her driveway and from overhanging branches which she says have scratched and dropped debris on her car. She says a root barrier was installed following her concerns in previous years, but this may have failed.
5. She asked the Council to inspect the tree and prune it properly. She also wants the Council to check the presence of roots under her drive and pay for any investigative work. The Council says a tree officer surveyed the tree in 2019 and decided that there is no obvious danger from branches touching her property and no additional work is required.
6. Mrs X submitted a claim against the Council for the damage, but its insurers denied liability in 2020.
7. The Ombudsman cannot resolve claims about damage to property caused by alleged negligence by councils. It was reasonable for Mrs X to consider making a claim in the courts if she believes the Council is liable for the damage to her property.

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Final decision

8. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it concerns claims about liability for damage to property which is a private legal matter. Only insurers or the courts can determine legal claims.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman