The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s maintenance of a tree near his property. There is not enough evidence of fault in the Council’s decision-making process to warrant an investigation. We will not investigate Mr X’s complaint about the Council’s internal complaint process in isolation, as we are not investigating the core issue which gave rise to the complaint.
The complaint
Mr X lives in a property next to Council-owned land. There is a tree on the land, some branches of which overhang his garden.
Mr X complains the Council has: failed to properly manage the size of the tree; not accepted the problems caused to him and his wife by the tree; failed to deal properly with his complaint; not given due consideration to the legal position regarding the tree.
Mr X says the tree affects light levels and water available to his garden plants. He says it sheds seeds, flowers and leaves on to the garden which are difficult to clear. He says leaves block his gutters, and pigeons sit in the branches and defecate, sometimes hitting people in the garden. He is worried about the tree falling in poor weather. Mr X wants the Council to agree the tree is too large for its location, and to completely remove it and kill off its roots. He also wants the Council to improve its complaint handling.
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 there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information from Mr X, and the Ombudsman’s Assessment Code.
My assessment
The Council’s policy says it will remove trees its officers consider pose a hazard, or to make safe trees which are imminently dangerous. Where officers inspect a tree and find no emergency, urgent or routine work is needed, they are placed on a three-year cycle for reassessment. Officers revisit trees if they receive a report of a problem before the next planned inspection.
We cannot go behind a council’s decision unless there is evidence of fault in the decision-making process which, but for that fault, there would have been a different outcome. To make its decision on Mr X’s concerns, officers noted the tree’s location and reviewed the inspections and works carried out on it, including pruning done in 2019 and 2020. They determined no work was currently required under the Council’s policy.
The Council recognised the problems Mr X raised about leaf, other debris and bird droppings falling from the tree into his garden. They explained these were part of the natural and seasonal environment created by trees, and were not reasons under their policy to remove a tree. Officers also noted the reduction in light caused to the garden, particularly when the tree is in leaf. They stated their policy was to consider pruning a tree where it is causing severe and unreasonable shading to habitable rooms in a residence. They took the view that the shading to Mr X’s garden did not justify works to the tree under that policy.
For the Ombudsman to criticise a council’s professional judgement decision, there has to be evidence of fault in the process officers followed which, but for that fault, a different outcome would have been reached. In making its decision here, the Council considered Mr X’s request and his reasons for wanting works on the tree, considered its information on previous inspections and prunings, and applied its policy. There is not enough evidence of fault in the process the Council followed here to make its decision about the tree for us to criticise the Council or to warrant us investigating. I realise Mr X disagrees with it, but it is not fault for a council to properly make a decision with which someone disagrees.
Mr X has also complained about the Council’s delays and other problems when it was dealing with his complaint. But we do not investigate councils’ complaint processes and responses in isolation where we are not investigating the core issue which gave rise to the complaint. We do not consider it a good use of public resources to do so. That limitation applies here so will not investigate this part of the complaint.
Mr X says the Council has not given due consideration to the legal position regarding the overhanging tree. Mr X’s complaints and responses to the Council indicate he is aware of his rights under Common Law to remove tree branches overhanging his property. He should offer any cuttings to their owner and if they are declined, it would be for him to dispose of them. If Mr X wants to remove any of the Council’s overhanging tree branches, he may wish to seek professional arboriculture advice before doing that work so as not to damage the tree.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process to justify us investigating; we do not investigate councils’ complaint processes in isolation, where we are not investigating the core issue which gave rise to the complaint.
Investigator's decision on behalf of the Ombudsman