Basildon Borough Council (19 005 443)

Category : Environment and regulation > Antisocial behaviour

Decision : Not upheld

Decision date : 20 Dec 2019

The Ombudsman's final decision:

Summary: Mrs J complains the Council failed to take enforcement action when she alerted it to a high hedge which causes her distress. We do not uphold the complaint. We find no or insufficient evidence of fault causing an injustice to Mrs J.

The complaint

  1. I have called the complainant ‘Mrs J’. She complains the Council failed to take enforcement action when she alerted it to a high hedge alongside her garden.
  2. Mrs J says because of this it was only when she threatened to confront the owner of the hedge directly that the neighbour cut the hedge back.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  1. 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)

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How I considered this complaint

  1. Before issuing this decision statement I considered:
  • Mrs J’s written complaint to the Ombudsman and supporting information. This included her letter of complaint to the Council and its reply.
  • Online mapping showing an aerial view of Mrs J’s property and rear garden.
  • Information provided by the Council in response to written enquiries.
  • Relevant law and guidance as referred to in the text below.
  1. I also sent both Mrs J and the Council a draft decision statement which set out my proposed findings. Neither Mrs J or the Council provided comments which led me to alter those proposed findings.

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What I found

Relevant law & guidance

  1. The Anti-social Behaviour Act 2003 (‘the Act’) gives local authorities powers to deal with high hedges considered anti-social. The Act allows someone to complain to their local council if they consider a neighbouring hedge, because of its height, adversely affects their “reasonable enjoyment” of their home.
  2. The law defines a ‘high hedge’ as one formed “wholly or predominately by two or more evergreens” and rising “to a height of more than two metres above ground level”.
  3. The Act gives local authorities the power to serve a ‘remedial notice’ requiring the owner of a hedge to cut it back. However, before the Council does this it must consider:
  • if the complaint is one it should accept; and
  • if the hedge complained about is one that “is adversely affecting the complainant’s reasonable enjoyment” of their home.
  1. On the first of these tests, the Council can reject a complaint if it finds the complainant has not “taken all reasonable steps to resolve the matters complained of” first. Or, if it considers the case vexatious.
  2. The guidance also says that when a council first receives a complaint about a high hedge it should consider taking informal action to resolve the problem first. The guidance says local authorities should use early contacts to advise if they do not consider a hedge will fall within the scope of the Act.
  3. When considering the second test, government guidance explains in detail how local authorities should assess the impact of high hedges. It advises they should not uphold a complaint because worrying about a hedge makes someone ill or especially affects an area of their garden that they value. Local authorities must also consider the needs of the hedge-owner and any the contribution the hedge makes to the wider amenity of an area.
  4. If the Council accepts a complaint, the complainant must pay a fee. In this case that is £500

Key facts in this case

  1. Ms J says that since 2015 she and her next door neighbour have met problems with a hedge, made up of evergreen leylandii, that runs along the bottom of their rear gardens. Ms J says that around autumn 2015 she contacted the Council and believes it contacted the hedge owner in turn, who I will call ‘Mr K’. He arranged to have the hedge cut back soon after.
  2. Some time in late 2016/early 2017 Mr K cut the hedge again. Mrs J says she also cut overhanging pieces on her side. Then during summer 2018 Mrs J describes contacting Mr K about the hedge, wanting it again cut back. Mrs J says Mr K became rude and abusive in response. This caused her to contact the Council again to ask it to intervene. I understand she did this via her local Councillor. I do not know when Mrs J first contacted the Council this way, but I find it was before October 2018. This is because an email the Councillor sent to the Council in early October 2018 referred to him asking the Council “some months ago” to check the hedge.
  3. In response to the Councillor’s email of early October 2018 an officer visited Mrs J’s home. She was not at home. The officer viewed the hedge from a gate to the side of her property. This is around 40 to 50 metres from the bottom of Mrs J’s garden where the hedge is located.
  4. The Council advised Mrs J’s Councillor that it would not uphold a complaint made under the Act. It did not consider the hedge one it could enforce against using the powers explained in paragraph 10 above.
  5. During November 2018, Mrs J then took the matter up with her local MP. The Council says it also explained its position to the MP. It also sent the MP a copy of an application form if Mrs J did not accept its advice and still wanted to pursue a complaint under the Act.
  6. Next, Mrs J contacted the Council direct in December 2018. In response it visited her when she was at home. It measured the hedge at 2.9metres. It provides a photograph from the visit. It maintained that a complaint under the Act would be unlikely to succeed. However, the Council agreed to contact Mr K and ask his intentions about the hedge.
  7. After two attempts by the Council Mr K responded to its contact in January 2019. He said he would cut the hedge back in March 2019. The Council relayed this message to Mrs J.
  8. In April 2019 Mrs J contacted the Council again as Mr K had not cut back the hedge. She told the Council officer if Mr K did not cut the hedge she would “hang a banner” from her back window asking him to cut his hedge. The Council said it would contact Mr K again to clarify his intentions. It spoke to Mr K who again said he would cut back the hedge
  9. In April 2019 the Council also wrote to Mrs J clarifying its position on the application of the Act to her circumstances. It said that officers did not consider the hedge met the standards set out in the Act which would require it to take enforcement against it. It said it did not want to prejudice the outcome of an application Mrs J might make but help her make an informed decision. It would not want her to make an “unnecessary financial commitment [..] unlikely to deliver the outcome sought”.
  10. Mr K went on to cut the hedge soon afterwards. This is something the Council confirmed when it visited Mrs J again in May 2019.
  11. Mrs J has sent us photographs of the hedge as it appears from her garden after the cutting back. She says Mr K left it “not in a very pleasing state”. Mrs J says the officer did not respond to further contact she had about this.

My findings

  1. I consider this complaint highlights some areas where the Council may not always have followed best practice.
  • First, there is no record of when the Council first received contact from Mrs J (or her Councillor) in 2018 asking for a service. So, potentially it could have visited to inspect the hedge before October 2018.
  • Second, I question if it was good practice to carry out a first visit from outside Mrs J’s garden when she was not at home. It would have been better had the Council arranged an inspection when Mrs J was at home to see the hedge close-up and explain its initial thinking.
  • Third, I consider the Council might have provided more in writing to explain why it thought it unlikely it could take enforcement action against the hedge under the Act. The Act is not straightforward. To someone unfamiliar with all its clauses and guidance they may think the Act requires the Council to enforce in response to any complaint made about a leylandii hedge more than two metres high.
  • Fourth, having agreed to take some informal action and established Mr K intended cutting back the hedge in Spring 2019 the Council could have clarified if it considered its involvement at an end. Or it could have said if it intended checking on this action after three to four months. Not clarifying its intention would more likely lead to Mrs J contacting it again about this matter should Mr K not keep his word.
  1. However, I do not consider any of these potential learning points significant enough that I could justify finding fault against the Council. In reaching this view I have taken account of the following.
  • First, I find there are sound reasons for the advice the Council has given Mrs J in this case. A high hedge does not become one the Council must act against on grounds of height alone. I find in this case it has advised the hedge is one it would be unlikely to enforce against as it is not having an adverse impact on Mrs J’s reasonable enjoyment of her home. The Council has not stated this plainly but implied this in its communications. I find the photographic record of the hedge in December 2018 compelling in understanding how the Council reached this view.
  • Second, even though the officer first viewed the hedge from a distance, this would be advice it could still give with confidence. Mrs J has a reasonably long back garden and I have confirmed this from looking at an aerial view of her property. The hedge runs along the bottom of the garden. The Council would take account of this in giving its advice. If Mrs J had been at home during its first visit, this would not have changed the Council’s advice.
  • Third, even though the Council considered it could not take enforcement under the Act it still took informal action to help secure the action Mrs J wanted. That was good practice in line with Government guidance. Its intervention has resulted in Mr K cutting back his hedge, which is the outcome Mrs J wanted.
  • Fourth, in giving advice and taking informal action the Council has saved Mrs J £500 on an application unlikely to succeed. But I am satisfied it did not prevent her pursuing a formal application under the Act if she wanted. It gave that advice to both her MP and Councillor in 2018 and confirmed the position in its letter of April 2019.
  • Fifth, I understand Mrs J will have experienced some frustration if the Council did not respond to initial contact in 2018 or contact her in Spring 2019 to see if Mr K had cut the hedge. But the evidence shows the Council reacted quickly both times in response. So, there was no prolonged period when it failed to contact Mrs J.
  1. It flows from the above that while I consider the Council may learn lessons from Mrs J’s complaint, it has not been at fault in giving advice the hedge was not one that met the criteria of the Act. This is advice it could reasonably reach on the facts in front of it. This may be a decision Mrs J disagrees with, but disagreement is not enough for us to find fault. For me to uphold a complaint there must be fault in how the Council reached its decision. I have not identified any such fault in my analysis above.
  2. I note that in some of her comments, Mrs J has suggested Mr K may not always have taken care in cutting back the hedge. She finds the finished appearance unpleasing and has mentioned previously Mr K not sweeping up clippings. I accept these are matters of annoyance. But they are not matters the Council can address either through the Act or other powers it has. They are solely matters between Mrs J and Mr K. Consequently, I cannot criticise the Council if it has decided not to further engage following the hedge being cut back.

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Final decision

  1. For the reasons set out above I have completed my investigation into this complaint. I find the Council has not acted with fault causing an injustice to the complainant.

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Investigator's decision on behalf of the Ombudsman

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