Summary: We will not investigate Mr X’s complaint about the Council’s refusal to remove a tree from its current location, and its handling of the matter. There is not enough evidence of fault to justify investigating.

The complaint

1. Mr X complains about the Council’s decision to replant a tree in the same spot where the previous tree had caused damage to his property. Mr X says it should have been planted elsewhere. He is unhappy his request for removal has been refused.
2. He also complains about the Council’s complaint handling.

Back to top

The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)

Back to top

How I considered this complaint

7. I considered information provided by Mr X and the Council.
8. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

9. The Council’s published policy outlines various factors it must consider when planting trees, namely impact on underground/overhead services and highway limits. It says trees are not removed unless dead or decayed. The policy also outlines the Council’s commitment in maintaining a healthy tree stock across the city.
10. In response to Mr X’s complaint, the Council said a surveyor inspected the location and confirmed the new tree planted is of a different species to the one which previously occupied the site. It said it had chosen to replant a different species to prevent future damage.
11. It also told Mr X that trees are not removed unless they show signs of disease or decay, and that any necessary works will be identified upon inspection every 5 years. This is in line with its published policy.
12. I will not investigate Mr X’s complaint because there is not enough evidence of fault in the Council’s decision-making. So I cannot question its decision not to remove the tree.
13. Further, it is reasonable to expect Mr X to pursue any liability claim through the Council’s insurers and then courts if he holds it responsible for any damage to his property. The Courts are better placed to make liability decisions.
14. It would not be a good use of public money to investigate the Council’s complaint handling in isolation.

Back to top

Final decision

15. We will not investigate Mr X’s complaint because there is not enough evidence of fault.

Back to top

Investigator's decision on behalf of the Ombudsman