Summary: We will not investigate Mrs B’s complaint about the Council’s refusal to remove a tree next to her home. This is because it is reasonable for Mrs B to put in a claim on the Council’s insurance, and if needed, pursue this matter at court.

The complaint

1. Mrs B complains the Council has refused to remove a very large tree next to her home which is causing a nuisance. Mrs B says the tree blocks light to her home and garden. Mrs B also says the roots of this tree have: caused cracks in her garage wall, lifted up her paving slabs; and, prevented her plants from thriving.

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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 Mrs B and information on the Council’s website about how the Council investigates complaints about trees.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council’s policy is to not prune or remove healthy trees for amenity reasons, for example if a tree is blocking light. The Council has told Mrs B that this tree is in good health and does not appear to pose any safety risk to the surrounding area. So, the Council says this tree does not meet the Council’s criteria for pruning or removal.
7. The Council has also advised Mrs B to contact her home insurer to investigate her concern that the tree is causing damage to her garage and garden.
8. We will not investigate Mrs B’s complaint.
9. The information does not indicate the Council was at fault for refusing to prune or remove this tree in response to Mrs B’s concerns about the tree blocking light. This is because this is not one of the Council’s criteria for pruning or removing a healthy tree.
10. Mrs B is also concerned that the roots of the tree are damaging parts of her property.
11. We do not normally investigate complaints about damage to property. This is because such complaints are that an organisation has been negligent.
12. The role of the Ombudsman is to consider complaints of administrative fault. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
13. 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.
14. 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.
15. 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 Mrs B’s position to put in a claim on the Council’s insurance, and if needed, pursue the matter at court. Mrs B says her home insurer will only get involved if the roots are causing structural damage. But, Mrs B may put in a claim to the Council directly, without involving her insurer, if the claimed damage is not covered by her home insurance.
16. Because of the seriousness of the issue complained about, I find it is reasonable and proportionate to expect Mrs B to pursue this matter at court if needed.
17. So, we will not investigate this complaint.

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Final decision

18. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman