Summary: We will not investigate Mrs X’s complaint about the Council’s tree and bushes damaging her property and not being maintained. Mrs X’s complaint amounts to a claim that the Council is liable for her property damage. It would be reasonable for her to pursue such a claim with the Council’s insurer, then to the courts if required, to seek the legal liability finding which we cannot make. There is no further worthwhile outcome an investigation would achieve regarding the ongoing tree and bush maintenance.

The complaint

1. Mrs X lives in a property with an end garden boundary next to Council-owned trees and bushes. She complains the Council has failed to maintain the trees and bushes for several years.
2. Mrs X says the tree’s roots are on her property and are damaging her fence, patio, shed and lawn. She is also concerned the roots will damage the foundations of her house in future. Mrs X says the matter is causing her great worry and distress and this has affected her health. She says the Council has made her feel worthless and powerless to protect her property and investment. Mrs X wants the Council to carry out its contractual responsibility.

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The Ombudsman’s role and powers

3. 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)
4. We investigate 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 continue an investigation if we decide there is no worthwhile outcome achievable by us investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information from Mrs X, relevant online maps, and the Ombudsman’s Assessment Code.

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My assessment

6. The core issue in Mrs X’s complaint amounts to a claim that the Council’s actions or inactions in the maintenance and management of its tree and bushes have directly caused damage to her property. This is a claim by Mrs X of liability for property damage against the Council. To get a finding on this issue, she would need to lodge an insurance claim with the Council’s insurers.
7. The insurance route is the appropriate one for Mrs X’s claim of liability for damage to her property, rather than an investigation by us. This is because for us to form a view on this complaint, we would need to be able to decide whether the Council is liable for Mrs X’s claimed property damage. This is a legal liability question we cannot answer. We cannot make findings on issues of liability for damages to someone’s property. Only insurers or the courts can make those decisions.
8. If the final outcome of an insurance claim does not resolve the matter to Mrs X’s satisfaction, then it would be for the courts to determine her liability claim. We recognise Mrs X may not wish to make a legal claim. But it would be reasonable for her to pursue this route if required because it is the one she would need to use to get the required finding of legal liability against the Council which is the core of her complaint. It would also be reasonable for Mrs X to take the matter to court because the courts can issue legally binding orders on the parties involved, whereas we can only make remedy recommendations to councils.
9. We note Mrs X is concerned about future damage to her house from the tree’s roots. We do not investigate speculative injustices which have not happened. In any event, should there be such harm in future, this would be a further property damage issue which could only be determined through insurers or the courts if required and we would not investigate.
10. We note Mrs X wants the Council to do work to the trees and bushes. In respect of their ongoing maintenance, the Council has said it will revisit the location and assess whether it needs to do work to stop damage to nearby structures. Officers say that if work is required, it would be done before the end of the financial year, which would be by the end of March 2024. This is the kind of outcome we are likely to have sought from an investigation had we done so. An investigation would achieve no further worthwhile outcome here in relation to the Council’s ongoing grounds maintenance, so we will not investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because:
• it would be reasonable for her to pursue a claim with the Council’s insurer, then to the courts if required, to pursue the required legal liability finding; and
• there is no further worthwhile outcome an investigation would achieve regarding the tree and bush maintenance.

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Investigator's decision on behalf of the Ombudsman