The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council will not contribute to the cost of removing a tree and a fence. This is because there is insufficient evidence of fault by the Council.
The complaint
The complainant, whom I refer to as Mr X, complains the Council will not contribute to the cost of felling a tree or moving a fence.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Mr X and the Council. This includes photographs and the complaint correspondence. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.
My assessment
The Council, as the Highways Authority, has a duty to keep highways clear.
In 2021 the Council asked Mr X to re-position a fence that was obstructing a path (part of the highway). It asked him to move the fence panels and posts from the path.
There was a tree in Mr X’s garden, near the fence. Mr X sent an email suggesting he remove the tree as an alternative. The Council said it could not comment as the tree was not blocking the path. Mr X says the tree was causing the fence to obstruct the path.
Mr X re-positioned the fence and removed the tree. The tree was subsequently found to be rotten. Mr X asked the Council to contribute to the costs of removing the fence and the tree. The Council did not own the tree or the fence.
The Council said it did not ask him to remove the tree and did not require him to remove the tree, just the fence. It said the tree was not causing an obstruction so the Council had no power to ask for its removal or give consent for the removal. The Council explained it has the power to protect the rights of passage along the path but does not own the land. The Council declined to contribute to Mr X’s costs.
I will not start an investigation because there is insufficient evidence of fault by the Council. The Council has a duty to keep the path clear of obstructions. I have seen photographs which show the fence had obstructed the path by causing narrowing at one point. Mr X had erected the fence. The Council was not required to contribute to the cost of re-positioning the fence.
The Council asked Mr X to remove the fence from the highway. It did not ask him to fell the tree and did not require removal of the tree. There is no suggestion of fault in the Council’s decision not to contribute to the cost of felling. In addition, as the tree was rotten, it is likely Mr X would have had to remove the tree at some point, regardless of any issues with the fence.
Final decision
We will not investigate this complaint because there is insufficient evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman