Summary: We will not investigate Mr B’s complaint that his property has been damaged by a Council-owned tree. This is because it is reasonable for Mr B to put in a compensation claim, and if needed, take the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains the Council wrongly planted an unsuitable tree with an invasive root system on the highway next to his property. Mr B complains the Council has failed to maintain the tree which has damaged his boundary wall. Mr B also says the Council took too long to remove the tree and has not taken sufficient action to prevent further damage to his property and the highway. Mr B would like the Council to pay for the repairs to his boundary wall and kill and remove all remaining tree roots. Mr B would also like the Council to repair the highway which has also been damaged.

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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 Act 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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. In response to Mr B’s complaint, the Council said:
• It accepts the tree needed to be felled and that the roots have grown additional trees.
• It recently removed the vegetation and trees along the wall, put in eco plugs and sprayed the area.
• It accepts the work which had taken place in October 2022 was not completed until June 2023.
• At the moment, there is no evidence the sprouting trees have caused additional damage to Mr B’s boundary wall.
• There is no further action the Council can reasonably take at the moment.
• If Mr B wishes to make a claim for repairs to his wall, he would need to make a claim via his own building insurance.
7. Mr B complains the Council took too long to remove the tree. But, in any case, Mr B says the work recently done by the Council is not sufficient to prevent further damage. Mr B says new growth has started to cover his front and rear lawns. Mr B would like the Council to completely kill and remove all remaining tree roots.
8. Mr B also says his building insurance cover does not include his boundary wall, so he cannot claim on his insurance for the damage. Mr B is concerned there is likely to be further damage to his property in future.
9. We will not investigate Mr B’s complaint.
10. Mr B complains that his property is being damaged due to the Council’s decision to plant an unsuitable tree next to his home. In addition, Mr B complains the Council has failed to maintain the tree.
11. In effect, Mr B’s complaint is that the Council has been negligent.
12. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
13. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy by putting in a compensation claim to the Council, and if needed, taking the Council to court.
14. Mr B says his building insurance does not include his boundary wall. But, Mr B may put in such a claim without involving his building insurer.
15. The courts are in the best position to decide whether the Council should pay for the repairs to Mr B’s wall and to assess the works done by the Council in response to Mr B’s concerns.
16. Given the seriousness of the issue complained about, I find it is reasonable for Mr B to take the Council to court if the Council refuses his compensation claim. Mr B will have to pay some costs in pursuing such a claim. But, these costs are likely to be proportionate to the seriousness of the issue he complains about. Also, Mr B can apply for a costs award against the Council if his claim is successful.

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Final decision

17. We will not investigate Mr B’s complaint because it is reasonable for Mr B to pursue this matter by taking the Council to court.

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Investigator's decision on behalf of the Ombudsman