Summary: Mrs X complains the Council failed to enforce a remedial notice it served on her neighbour requiring him to reduce the height of hedges at his property. We found fault because the Council wrongly identified the type of hedge to be cut and the timescales involved. But this fault did not cause Mrs X an injustice and so we are completing our investigation.

The complaint

1. The complainant whom I shall refer to as Mrs X complains the Council failed to enforce a remedial notice it served on her neighbour Mr Y to reduce the height of the hedges at his property. Mrs X says the Council failed to follow the requirements of the High Hedges regulations and allowed Mr Y extra time to carry out the works.
2. Mrs X seeks compensation for the stress and anxiety caused by the lack of action by the Council and repayment of her £300 fee.

Back to top

What I have investigated

3. I have investigated Mrs X’s complaint about the Council’s actions in ensuring compliance of the remedial notice issued in November 2018. The final part of this statement contains my reason for not investigating Mrs X’s complaints before the appeal to the Planning Inspectorate in December 2017.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

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

5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended). The Planning Inspector acts on behalf of the responsible Government minister.
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. I have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Mrs X and the Council and considered the comments received.

Back to top

What I found

8. Part 8 of the Anti-Social Behaviour Act 2013 allows councils to consider complaints about high hedges. When a council decides a complaint, it must first decide whether the height of the high hedge is having an adverse effect on a neighbour’s enjoyment of their home and its garden or yard. If it is the Council can order the owner of the high hedge to take action to correct the problem and stop it from happening again.
9. The legislation allows councils to set and charge fees for handling a high hedges complaint. The Council charges £300. The complainant submits a High Hedges application for the Council to consider.
10. The Council follows the procedure set out in the Government’s guidance document- High Hedges Complaints: Prevention and cure. The Council says it follows the guidance which is to take the course of action likely to resolve the case. This is usually by making efforts to ensure compliance even if it takes the case over the deadline. The Council may take direct action if there is evidence of no intent to comply after warnings. Although the Council may consider court action as part of the response, it says it does not normally take that route as experience has shown it is not an effective way of securing compliance. Nor is it an effective use of officer time.
11. Both the applicant and person receiving a remedial notice have the right of appeal to the Planning Inspectorate against the Council’s decision.

Key events leading to the complaint

12. Mrs X submitted a High Hedges application to the Council in April 2017 about the hedges at Mr Y’s property. Mrs X said they were causing a nuisance by blocking daylight to her house. The Council could not validate the application until September 2017 due to issues with Mrs X’s payment of the application fee.
13. A tree officer visited the site to view the hedge in October 2017. The officer considered the application and decided the hedge was adversely affecting Mrs X’s reasonable enjoyment of her property. The Council issued a remedial notice to Mr Y in November 2017. This required Mr Y to reduce the hedge to a height of 2.45 m. But to prevent the cut destroying the hedge and allowing it to regenerate the Council needed the work to be done with a first cut of one third of the hedge height (1.45m). And the remaining 0.5m removed after two years. The notice required Mr Y to keep the 2.45m hedge height with an annual cut in the autumn/ winter period.
14. The Council required Mr Y to comply with the notice by the end of December 2017. The Council told Mrs X and Mr Y of its decision. Both Mrs X and Mr Y appealed against the Council’s decision to the Planning Inspector in October 2017. Mrs X considered the works required by the Council in the remedial notice did not go far enough.
15. The Planning Inspectorate considered the appeals in September 2018 and upheld the Council’s decision. The Inspectorate set a new compliance date of 4 October 2018 for Mr Y to carry out the work. The Council’s tree officer left the Council in September 2019 and there was no officer in post until May 2019.
16. Mrs X wrote to the Council in October 2018 saying Mr Y had not carried out any work to the hedge. An officer contacted Mr Y about the need to cut the hedge and arranged an enforcement visit for 23 October 2018. Mr Y asked for an extension of time to carry out the works. The officer agreed until 5 November 2018 and postponed the planned visit.
17. Mrs X complained to the Council about the way the case was being dealt with. Mrs X said the Council was not enforcing the remedial notice and allowing Mr Y more time to cut the hedge. Mrs X asked for compensation for her stress, anxiety and refund of her application fee.
18. Two officers visited Mr Y’s property on 6 November 2018 and found Mr Y had not complied with the remedial notice. The Council wrote to Mr Y requiring a further cut. The Council updated Mrs X. Two officers visited the site on 27 November 2018 and found Mr Y had largely complied with the remedial notice although not completely.
19. The Council responded to Mrs X’s complaint. It said Mr Y had complied in part to the practical guidance in the remedial notice about a first stage cut in height to 2.95m. The Council said its measurements showed most of the hedge reduced to that level although it was higher in the centre. The Council said it did not propose to take any further enforcement action. But intended to revise the practical guidance in the notice as it had incorrectly identified the type of species of the hedge. The Council said it had included a relaxed programme for staged cutting in the notice. But this was not needed for the type of hedge at Mr Y’s property and it could be cut at any time without causing harm. So did not need an annual cut in autumn/winter.
20. The Council revised its practical guidance in this case. It told Mr Y the hedge should be cut yearly with the first cut removing one-third of the hedge height and the further 0.5m removed after three months. The Council said the first cut had taken place, so Mr Y needed to complete the second cut by the end of February 2019. The Council apologised to Mrs X the practical guidance section being incorrect but the central requirement of the notice (to reduce the height of the hedge) remained the same.
21. Mrs X complained to the Council in March 2019 Mr Y had not complied with the remedial notice. The Council contacted Mr Y who provided evidence of a hedge cut. Mrs X complained again in April 2019 saying Mr Y had not complied with the remedial notice. An officer visited the site in May 2019 and confirmed Mr Y had cut the hedge to the required height.

My assessment

22. The Council’s documents show it responded to Mrs X’s complaints about Mr Y’s non-compliance with the remedial notice. The Council contacted Mr Y to ensure the work was carried out. I accept that this may not have been done as quickly as Mrs X hoped or according to the dates given in the remedial notice. But it has been carried out according to the Council’s practice of ensuring compliance even if it takes the case over the deadline. So, I do not consider there has been any fault by the Council in pursuing enforcement of the notice.
23. However, the Council has accepted it made an error in the original notice over the type of hedge meaning it could require Mr Y to cut the hedge again sooner than the two years it specified. I consider this was fault by the Council as it wrongly identified the type of hedge, but this did not cause any injustice to Mrs X. This is because the Council revised the notice to include the correct type of hedge and required Mr Y to cut do the second cut sooner than originally specified. The revised timescale given by the Council was the same as it would have given if it had correctly identified the type of hedge in the original notice in November 2018. So, the error has not resulted in the Council taking any longer to achieve compliance.

Back to top

Final decision

24. I am completing my investigation. The Council was at fault as it incorrectly identified the type of hedge in a remedial notice. But this fault did not cause Mrs X a significant injustice.

Back to top

Parts of the complaint that I did not investigate

25. I have not investigated Mrs X’s concerns about matters before the Council issued its decision on Mrs X’s application. This is because Mrs X exercised her right of appeal to the Planning Inspectorate about the Council’s decision and her view the notice did not require enough work to the hedge. As paragraph five explains we cannot investigate a complaint if a person has exercised their right of appeal to a government minister. Mrs X has challenged the Council’s remedial notice, so I am unable to consider her concerns about whether the notice requires enough of the hedge to be removed and any matters before Mrs X appealed the notice.

Back to top

Investigator's decision on behalf of the Ombudsman