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

The complaint

1. Dr X complains the Council resurfaced the pavement outside his property, but it failed to remove a tree root under his wall. Instead, he complains the Council removed all other tree roots of a similar size from the pavement and dug a pit round the tree. Dr X says the Council has failed to evidence why it thinks removing the root would damage the tree.
2. Dr X wants the Council to remove the tree root to stop further damage to his property. He says the situation has cost implications for him.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Highways Act 1980 requires councils to maintain public highways for which they are responsible. This duty extends to pavements as well as roads used for vehicular traffic and is to ensure the safety of all road users.
8. The Council resurfaced the pavement by Dr X’s house. In its complaint response, the Council confirmed the repairs carried out by its resurfacing team were in line with the agreed brief. While Mr X believes the Council should have removed the tree root and carried out the work differently, it is for the Council to decide how to meet its obligations under the Highways Act 1980.
9. In any event, Dr X’s concerns centre on damage to his property, which he says was caused by the tree root. He wants the Council to remove the tree root to prevent further damage. In effect, Dr X’s complaint is that the Council has been negligent.
10. 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. 
11. We cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, it is reasonable to expect Dr X to seek a remedy by putting in a compensation claim to the Council, and if needed, taking the Council to court. The courts are in the best position to decide whether the Council should pay for any repairs to Dr X’s wall and to assess the works done by the Council in response to Dr X’s concerns. We will not investigate this complaint.
12. It is not a proportionate use of our limited resources to investigate the adequacy of the Council’s complaint response when we are not considering the core issues. Any separable injustice is not significant enough to justify our involvement. So, we will not investigate this matter as a standalone issue.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman