The Ombudsman's final decision
Summary: We will not investigate this complaint about damage to Ms X’s car caused by a tree in the public highway which she wants the Council to remove. It is reasonable for Ms X to make a claim against the Council’s insurers or seek a remedy in the courts if no liability is accepted.
The complaint
Ms X complained about the Council’s failure to remove a tree which is growing in the highway verge next to her home. She says a falling branch scratched her car in 2019 and branches have fallen since then. She says the leaves also fall into her garden requiring her to remove them. She wants the Council to cut back any branches over her property or 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 considered the Ombudsman’s Assessment Code.
My assessment
Ms X says a tree in the verge near her home has dropped branches in the past, one of which damaged her car. She wants the Council to remove the tree or at least branches overhanging her property.
The Council gave an unsatisfactory response to her complaint in 2019 and have refused to remove the tree.
The Ombudsman will not normally investigate complaints about damage to property arising from trees which are on council-owned land. This is because these complaints are really about whether the council has been negligent by not maintaining them or planting them too close. Negligence claims, and interpreting the law around tree maintenance, are generally best decided by insurers or, where liability is not accepted, a court.
Only a small part of the canopy overhangs Ms X’s garden, and she is entitled to remove any branches over her land under civil law provided the tree is not protected by an order. Leaves and other natural debris are not examples of negligence and become the responsibility of the landowner on whose land they fall. They are free to dispose of them how they choose.
It was reasonable for Ms X to submit an insurance claim against the Council for any damage which her car suffered. If it denied liability, then she could seek a remedy in the small claims court.
Final decision
We will not investigate this complaint about damage to Ms X’s car caused by a tree in the public highway which she wants the Council to remove. It is reasonable for Ms X to make a claim against the Council’s insurers or seek a remedy in the courts if no liability is accepted.
Investigator's decision on behalf of the Ombudsman