The Ombudsman's final decision
Summary: We will not investigate this complaint about damage to the complainant’s property from a council owned tree. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council for the claimed injustice.
The complaint
Mr X says root damage from a Council owned tree has resulted in damage to his car and property.
He would like the Council to remove the tree. He says he is not looking for compensation.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. I also considered the Ombudsman’s Assessment Code.
My assessment
I will not investigate because the matter of liability for damage is usually decided by the Council’s insurers and also the courts.
Mr X can make a claim on the Council’s insurance and then to court if the claim is turned down. It is reasonable to expect him to do this to protect his private property. The court can decide liability and if the Council should remove the tree.
There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.
Final decision
I will not investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability.
Investigator's decision on behalf of the Ombudsman