Summary: We will not investigate this complaint about damage that may be caused to Mr X’s property from a Council street tree as this would be a matters for the courts.

The complaint

1. Mr X complains the Council has planted a tree near utility services to his property. Mr X says that a tree at the same location that was removed caused damage to his utility pipes. Mr X fears a recurrence.

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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 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. I recognise Mr X’s concerns. However, if damage is caused to his property and the Council does not provide a remedy, this would be a matter for the courts. Deciding about 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 would therefore usually expect someone in Mr X’s position to seek a remedy in the courts, directly or through their insurers.
7. For this reason, we will not investigate.

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Final decision

8. We will not investigate Mr X’s complaint because if damage is caused, ultimately only the courts can decide if the Council is legally responsible.

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Investigator's decision on behalf of the Ombudsman