The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council making a Tree Preservation Order (TPO) on trees belonging to a third party, which later damaged the complainant’s property. This is because the actions of the Council did not cause an injustice to the complainant, and liability for the damage is a matter for the courts.
The complaint
The complainant, whom I refer to as Mr X, complains the Council was at fault in making a Tree Preservation Order (TPO) for trees on a third party’s land, meaning planned works could not be carried out. Two trees fell and one damaged his property.
He wants the TPO to be withdrawn and an apology. He also complains about how the Council dealt with his complaint.
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 or may decide not to continue with an investigation if we decide any fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6)) 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 Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
Mr X was given the opportunity to comment on my draft decision. I considered his comments before making a final decision.
My assessment
Mr X’s complaint relates to a number of trees near his property, which are on a third party’s land. Concerns were raised by Mr X and other residents about the safety of them and the third party agreed for works to be carried out.
Works were stopped on the day they started after a resident showed the third party the TPO for the trees. The third party had not been contacted by the Council about the TPO and was unaware it had been issued.
Mr X stated the Council is at fault for failing to comply with several processes detailed in Government guidance relating to making TPOs, therefore delaying the works needed to make the trees safe. Two trees ended up falling during a storm, with one causing damage to his property and others.
When making a TPO, councils must invite representations from people with an interest in the land - the owner/occupier of the land and anyone entitled to carry out works to the tree. They may decide to tell other people, and Mr X has demonstrated that the Council decided to tell him as owner of an adjacent property.
We will not investigate Mr X’s complaint. The fault he identifies in the TPO process did not cause him an injustice. The TPO did not prevent the third party from carrying out works. If the third party believed works were required, it could have applied to carry them out. If it believed the works were necessary on the grounds of safety it could have proceeded, the TPO notwithstanding. These are matters between the third party and the Council, and we will not consider them.
The key injustice Mr X claims is damage to his property by a tree owned by the third party. We cannot take a view on whether any party is responsible, as liability for damage to property arising from negligence by councils or third parties is something only the courts can decide. If Mr X wishes to pursue the matter, it would be reasonable for him to do so in court because the court can establish liability. The Ombudsman cannot.
Mr X also complained about how the Council dealt with his complaint by giving him inaccurate and contradictory statements. It is not a good use of public resources to look at the Council’s complaint handling if we are not going to look at the substantive issue complained about. We will not consider this part of the complaint further.
Final decision
We will not investigate this complaint. This is because the Council’s actions have not caused injustice to Mr X, and it would be reasonable for him to pursue the matter of damage to his property in court.
Investigator's decision on behalf of the Ombudsman