The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to prevent tree roots from affecting Mrs X’s property. It is reasonable for Mrs X to seek a remedy by way of a claim against the Council and in the courts if liability is not accepted.
The complaint
Mrs X complained about the roots from a Council owned tree growing under her driveway. She is concerned that they will cause damage to the surface which was recently replaced. She wants the Council to remove any roots and to remove the tree if it cannot be pollarded.
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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X says a large tree in the footway near her home has spread is root structure under her driveway. She has been concerned about this since her neighbour had their driveway excavated in 2019 and roots leading from her property were found beneath it. In 2021 she had her own driveway replaced and roots were removed by contractors.
She contacted the Council because there may be further toots and new ones could spread. She asked for the tree to be pollarded and preferably removed altogether. The Council told her that there is no existing evidence of damage to her driveway and it will not carry out additional works unless there is evidence of damage due to its tree. It says the tree has been previously pollarded and cannot be subject to the same procedure. The tree is on a maintenance programme and will be inspected for any pruning requirements in future.
The Council later advised Mrs X to submit an insurance claim if she believes there is evidence that the tree has damaged her property.
The legislation from which the Ombudsman takes his powers also places some restrictions on what we can investigate. One of these restrictions concerns complaints about matters which have a remedy by way of an insurance claim or the courts.
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 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.
It is reasonable for Mrs X to submit a claim against the Council if she believes the tree is causing damage to her driveway.
Final decision
We will not investigate this complaint about the Council’s failure to prevent tree roots from affecting Mrs X’s property. It is reasonable for Mrs X to seek a remedy by way of a claim against the Council and in the courts if liability is not accepted.
Investigator's decision on behalf of the Ombudsman