The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint about the Council not removing a Tree Preservation Order from a neighbour’s tree, and not agreeing to fund work to that tree. There is not enough evidence of fault in the Council’s decision-making process here regarding the condition and ownership of the tree to warrant investigation. Even if we were to investigate, we could not find Ms X’s claimed injustices are caused by Council actions or inactions. Ms X’s concern about future damage to her property by the tree is speculative, and would be a private civil matter between her and its owner.
The complaint
Ms X moved into her house in March 2022. The housing had been designed to retain several large and old trees, protected by Tree Preservation Orders (TPO), one of which is in Ms X’s neighbour's garden. Ms X complains the Council has: refused to remove the TPO from the tree; refused to help finance work to the tree.
Ms X says she is a single mother whose child has sensory processing issues. She and her son have not been able to use the garden or open their windows in the hot weather because the tree is attracting wasps. Ms X says her son was stung by a wasp and had an allergic reaction, and she believes the wasps could kill them. Ms X says the tree is also dropping sap, and birds in the tree defecate from its branches on to her property. She says the situation is affecting their mental health and does not feel she and her son are safe in their own home. She is also concerned the tree’s roots may damage her garden and house. Ms X wants the Council to remove the TPO from the tree and cut it back.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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; or any fault has not caused injustice to the person who complained.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information from Ms X, and the Ombudsman’s Assessment Code.
My assessment
In response to Ms X’s concerns, the Council visited the site to gather relevant information about the location, health and condition of the tree. Officers noted it is on private property and after their assessment they had no concerns for its health.
As the Council does not own the tree, its role is in the preservation of its amenity value, as protected by its TPO. It has decided the concerns Ms X raises are not sufficient grounds to justify removing the TPO, or for removal of or significant works to the tree. That is a decision they were entitled to take once they had gathered information and assessed the matter. We can only criticise a council’s decision if there has been fault in its decision‑making process and, but for that fault, they would have made a different decision. There is not enough evidence of such Council fault in how they reached their decisions here to warrant an investigation. I realise Ms X may disagree with the decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
The Council decided the responsibility for any work to the tree, as it is privately owned, would fall to its owner, Ms X’s neighbour. But the Council does not consider work to the tree is required because officers did not find it to be unhealthy. As explained above, that is a decision they were entitled to take, and there is not enough evidence of fault in their decision-making to justify an investigation. If Ms X considers there are impacts to her family and property caused by the tree in its current state, that would be a matter between her and her neighbour.
Even if there were Council fault here, we will not investigate the complaint. Ms X has claimed injustices stemming from the presence and current size and condition of the tree. The tree was protected during the development works which created her house and garden. It would have been the same size as it is now when Ms X decided to move into the house, earlier in 2022. It is Ms X’s decision to move into her property which has brought her family into contact with the issues she now claims as their injustices. The injustices have not been brought about by Council actions or inactions. I realise Ms X did not know about her son’s allergy to wasp stings before she moved in. But that is not a fear for her which was brought about by anything done or not done by the Council, nor one that it could take away for her even if it agreed to remove the tree.
Ms X is concerned about future damage to her garden and house by the tree’s roots. But we cannot consider speculative injustices which have not happened. In any event, if Ms X believes the tree has damaged her property in future, that would be private civil matter between her and her neighbour as the tree’s owner. It would not be an issue between Ms X and the Council.
Final decision
We will not investigate Ms X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process here regarding the condition and ownership of the tree to warrant investigation; and even if we were to investigate, we could not find Ms X’s claimed injustices are caused by actions or inactions of the Council; and her concern about future damage to her property by the tree is not an injustice that has happened, and in any event would be a private civil matter between her and the tree’s owner.
Investigator's decision on behalf of the Ombudsman