Summary: We will not investigate this complaint about a claim for damage to the complainant’s driveway. This is because the complainant has an alternative legal remedy, to pursue a claim of negligence through the courts. Only the courts can decide whether the Council was negligent. It is therefore reasonable to expect them to use their legal remedy.   

The complaint

1. X complains that the Council is responsible for damage to their driveway due to roots growing from a Council owned tree. X wants the Council to compensate them for the damage.

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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)
3. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.

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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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Final decision

6. We will not investigate X’s complaint because they have an alternative legal remedy through the courts. Only the courts can achieve the outcome they are looking for, so it is reasonable to expect them to use this remedy.  

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Investigator's decision on behalf of the Ombudsman