The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council not removing trees close to the complainant’s property. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The alleged injustice to the complainant is not enough to warrant an investigation. Also, we cannot establish liability in cases involving damage to property.
The complaint
The complainant, whom I shall refer to as Mrs X, says she has asked the Council to remove trees on its land which neighbours her property. Mrs X says the trees block light to her property, the leaf fall causes a nuisance, and the roots of the trees are causing damage.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
In response to the Ombudsman’s enquiries the Council said it had been busy dealing with other problems affecting trees in its area. It had therefore been slow to respond to Mrs X. It would therefore write to her with details of the work to be carried out.
I understand Mrs X is frustrated the Council has not previously responded. But we will not start an investigation into Mrs X’s complaint. We do not investigate all the complaints we receive and only look at the most serious. The issues Mrs X complains about are not significant enough to warrant us investigating.
Also, we will not normally investigate complaints about damage to property arising from trees which are on council-owned land. This is because these complaints are 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.
It is reasonable for Mrs X to submit a claim against the Council if she believes the tree is causing damage to her property. If the Council rejected her claim she could pursue the matter in court – potentially with the help of her home insurance. The Court could then decide if the Council was liable for the damage. That is not a decision we could take. It is therefore reasonable for Mrs X to pursue any claim for damages through insurers and the courts.
Final decision
We will not investigate Mrs X’s complaint. This is because the injustice is not significant enough and we cannot establish liability in cases involving damage to property.
Investigator's decision on behalf of the Ombudsman