Summary: We will not investigate Mrs B’s complaint that Council-owned trees are damaging her property. This is because it is reasonable for Mrs B to take the Council to court.

The complaint

1. Mrs B complains Council-owned trees are causing damage to her property. Mrs B would like the Council to remove these trees.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act 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)

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How I considered this complaint

4. I considered information provided by Mrs B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We do not normally investigate complaints about damage to property. This is because in effect such complaints are that an organisation has been negligent. This is for the courts to decide.
7. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. Also, unlike the courts, we have no powers to enforce an award of damages.
8. So, I would usually expect someone in Mrs B’s position to put in a claim to the Council’s insurers, and if needed, take the Council to court. Because of the seriousness of the issue complained about, I consider it is reasonable for Mrs B to do this.
9. So, we will not investigate this complaint.

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Final decision

10. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman