The Ombudsman's final decision
Summary: We will not investigate Ms X’s complaint the Council has refused to remove or prune a tree which is harming the amenity of her home. Investigation is not likely to lead to the outcome Ms X wants. It is reasonable for Ms X to use her legal rights and remedies.
The complaint
Ms X complains the Council has refused to remove or prune its tree located close to her home. Ms X says the large tree harms her amenity. She says tree roots have damaged her patio and the public path. She says tree branches overhang her property and neighbours are also affected. There is significant leaf fall which affects parking at the property and its sale. Ms X says the Council should remove or prune the tree. It should pay for repairing the patio and for causing her time and trouble.
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: investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6)) 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 and the Council. The information includes correspondence with the member of parliament in April and July 2021. I have considered a 2022 internet street scene photograph of the location. I have considered the Council's tree management policy (October 2016).
My assessment
I will not investigate Ms X’s complaint for the following reasons: There is insufficient evidence of fault and investigation is not likely to achieve the outcome Ms X wants. The Council has visited the site, assessed the position, and explained why it will not remove the tree. It has decided the tree is not dangerous and does not meet the criteria for removal. Damage to the path is minimal and will be monitored.
The recent photograph shows part of the large tree overhangs Ms X’s property. The Council says Ms X has a common law right to prune tree branches which cross the boundary of her property. It says it will not prune trees because of the impact on light. It also says it may need to remove the tree before its full term given the size of this type of species. It inspects the tree every three years. Ms X can use her common law right without investigation by the Ombudsman.
Ms X has a legal remedy at court if she wishes to claim damage to her property which places that part of her complaint outside the Ombudsman’s jurisdiction (see paragraphs 3 and 4 above). The Council says Ms X has not shown its tree is causing damage to her property. I consider it reasonable for Ms X to use her legal remedy because a court has the power to decide any dispute and award damages.
Final decision
The Ombudsman will not investigate will not investigate Ms X’s complaint the Council has refused to remove or prune a tree which is harming the amenity of her home. Investigation is not likely to lead to the outcome Ms X wants. It is reasonable for Ms X to use her legal rights and remedies.
Investigator's decision on behalf of the Ombudsman