The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused to the complainant’s fence by a tree on the public highway. This is because we cannot compel the Council to remove the tree or decide what the Council should pay towards the repairs as the courts are best placed to determine liability and calculate claims for damages.
It is therefore reasonable to expect the complainant to go to court to resolve his claim .
The complaint
In summary, Mr X is unhappy with the Council failure to remove a tree that is damaging his fence. He would like the Council to remove the tree.
The Ombudsman’s role and powers
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)
How I considered this complaint
I considered information provided by the complainant. I also considered the Ombudsman’s Assessment Code.
My assessment
We will not investigate as it is reasonable to expect Mr X to take his dispute with the Council to court as a claim for damages. There is a simple procedure in the county court for dealing with small claims.
We have no powers to compel the Council to remove the tree complained of.
Final decision
We will not investigate Mr X’s complaint because it is reasonable to expect him to go to court.
Investigator's decision on behalf of the Ombudsman