Summary: Ms B complains about the Council’s handling of her and her neighbour’s concerns about a high hedge in a neighbouring property. The Ombudsman is satisfied the Council did not prevent Ms B from making her own high hedge complaint when her neighbours did. The Council’s delay in formally notifying Ms B’s neighbours of the outcome of their complaint does not cause significant injustice to Ms B to warrant personal remedy. Ms B did not lose the opportunity to complain in her own right and has since done so successfully.

The complaint

1. The complainant, whom I have called Ms B, complains about the Council’s handling of her and her neighbour’s concerns about a high hedge in a neighbouring property. Ms B is unhappy the Council initially told her she did not have standing to make her own complaint about the high hedge. Ms B says this incorrect advice meant she was prevented from making a complaint in her own right and has incurred costs twice for the same issue. Ms B is also unhappy about the Council’s delay in notifying her of the outcome of her neighbour’s high hedge complaint. Ms B feels the Council has acted dishonestly and that it should not have charged her when she made her own high hedge complaint. Ms B also feels the Council’s handling has delayed her ability to appeal or challenge the Council’s decision.

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The Ombudsman’s role and powers

2. 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)

3. 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)
4. 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)
5. 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

6. I have considered the information Ms B has provided in support of her complaint.
7. I have considered the information the Council has provided in response to my enquiries.
8. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

9. Councils have powers to deal with complaints about high hedges under part 8 of the Anti-social Behaviour Act 2003 and the High Hedges (Appeals) (England) Regulations 2005.
10. This makes provision for councils to determine complaints by the owners/ occupiers of domestic property adversely affected by evergreen hedges over two metres high. Councils can charge a fee for this service, to be paid by the complainant. Councils can reject complaints if they consider insufficient effort has been made to resolve the matter amicably, or the complaint is frivolous or vexatious.
11. Councils can issue a remedial notice requiring the owner/occupier of the land where the hedge is situated to take action to remedy the problem and to prevent it from recurring. Councils can enforce remedial notices through criminal prosecution and/or by entering the land and carrying out the necessary work if the owner/occupier fails to do so. The law does not require all hedges to be reduced to, or maintained at, a height of two metres.
12. The role of the council is to act as an independent and impartial third party. Councils should not negotiate or mediate between individuals but will adjudicate on whether the hedge is adversely affecting the reasonable enjoyment of the complainant’s property. Councils will take account of all views and relevant factors, including the hedge owner’s amenity and that of the wider neighbourhood. Each case will be assessed on its own merits.
13. It is for each council to decide whether to provide refunds of complaint fees. In certain circumstances, councils might wish to return any fee paid, for example if the matter is settled without the council’s intervention. There is no requirement to offer refunds and complainants should not expect councils to return money where the complaint has been formally determined. Councils should not become involved in any attempts by a complainant to seek reimbursement of their fees from the hedge owner.
14. Complaints may not always involve one complainant, one hedge and one hedge owner. Where there are multiple complainants, one hedge and one owner, councils should consider the impact of the hedge on each property affected separately and individually. Separate complaints should be submitted by each owner/occupier of each of the affected properties, together with the requisite fee. Councils should link such complaints as they are processed so that the relationship between them and the practical implications for the hedge owner can be considered.

Interested parties

15. Most cases are unlikely to raise wider neighbourhood issues so councils should not normally publicise high hedge complaints. Councils might seek views from occupiers of properties, other than the complainant, that might be affected by the hedge and by any decision the council makes on the complaint. Representations from people not directly involved in the dispute (e.g. petitions or other expressions of support from neighbouring properties) are unlikely to be material to a council’s considerations of the complaint. A copy of the Council’s decision letter should however be sent to any interested parties who have been involved in the case. Interested parties do not have the right of appeal that the complainant and the owner/occupier of the hedge have against the Council’s decision.

What happened

16. This chronology includes key events and does not cover everything that happened.
17. The Council was first alerted to Ms B’s concerns about her neighbour’s high hedge by a local councillor in June 2016. A Council officer met with Ms B at her home on 21 July 2016. The officer recalls advising Ms B to try and resolve the matter amicably with the hedge owner, Mrs X, before submitting a complaint to the Council. The same officer met with Ms B’s other neighbours, Mr and Mrs C, who also wished to raise concerns about Mrs X’s high hedge.
18. The same council officer met with Mrs X in September 2016 to invite her to consider resolving the issue with her neighbours amicably. Mr and Mrs C submitted a formal high hedge complaint to the Council on 29 September 2016. The complaint included submissions from Ms B and several other residents whose properties either neighbour or are situated close to Mr and Mrs C’s property and Mrs X’s property. The submissions supported Mr and Mrs C’s concerns about the height of Mrs X’s hedge and the impact this was having on neighbouring properties. Mr and Mrs C paid the fee of £385.00 for their high hedge complaint to the Council by telephone on 3 October 2016.
19. The Council undertook an assessment of Mrs X’s hedge and spoke to her about the impact of the hedge on her neighbours. The Council concluded the hedge, which at the time measured a height of 17 metres, should be reduced to an overall height not exceeding 9.43 metres above ground level. On 27 January 2017, the Council issued a remedial notice to Mrs X to reduce the height of the hedge, which took effect from 21 February 2017 and had to be complied with by 21 March 2017 (subject to any appeal).
20. The Council provided Ms B with an update on its progress with the matter on 16 February 2017, when it confirmed that Mrs X intended to comply with the remedial notice. Ms B emailed the Council on 13 March 2017 to say some work had started on reducing the height of Mrs X’s hedge.
21. Ms B contacted the Council again in May 2019 about Mrs X’s hedge. She believed only part of the hedge had been reduced in line with the height stated in the 2017 remedial notice. Ms B explained she had instigated the complaint Mr and Mrs C had made to the Council about Mrs X’s hedge in 2016. Ms B said she had paid a proportion of the complaint fee for Mr and Mrs C and therefore expected Mrs X to comply with the remedial notice. Ms B asked the Council to visit her property so it could see the height of Mrs X's hedge was not compliant with the reduced height stipulated in the remedial notice.
22. Ms B contacted the Council again in June 2019 to request a copy of the remedial notice issued to Mrs X following Mr and Mrs C’s complaint. The Council provided a copy of the notice to Ms B on 19 June 2019 and confirmed it would be attending her property to measure the height of the hedge. The Council attended Ms B’s home on 25 June 2019 and found that Mrs X’s hedge measured 7.1 metres, which was below the 9.43 metres specified in the remedial notice served upon Mrs X in January 2017.
23. Ms B contacted the Council to complain about its delay in providing a copy of the 2017 remedial notice to her, and Mr and Mrs C. Ms B complained the Council’s delay prevented her from exercising her right of appeal against the remedial notice.
24. The Council responded to Ms B’s complaint on 4 July 2019. It apologised for the delay in sending Ms B, and Mr and Mrs C a copy of the remedial notice. The Council explained this was an administrative oversight. The Council also explained that Ms B did not have any right of appeal against the remedial notice as she was neither the complainant nor the hedge owner. The Council explained the Planning Inspectorate had indicated it would allow a late appeal from Mr and Mrs C if they wished to appeal the notice.
25. Ms B escalated her complaint as she remained dissatisfied with the Council’s response. Ms B told the Council she had submitted her own high hedge complaint and fee since she had no rights in Mr and Mrs C’s complaint. Ms B expressed concern that she had been incorrectly advised by the Council in 2016 to submit a complaint with Mr and Mrs C as there was more chance of their complaint being successful. Ms B complained she had been misled into believing her contribution to Mr and Mrs C’s complaint would give her the same appeal rights as them. Ms B also complained that she had paid a proportion of Mr and Mrs C’s complaint fee but had been denied the same rights.
26. The Council responded to Ms B’s escalated complaint on 12 August 2019. The Council explained Mr and Mrs C’s high hedge complaint form in 2017 did not indicate that Ms B was a co-complainant in the matter. There was also nothing to suggest to the Council that Ms B had paid a proportion of Mr and Mrs C’s complaint fee. The Council explained that it would investigate the concerns Ms B had raised about a specific council officer’s conduct but was unable to inform Ms B of the outcome of a personnel investigation. The Council apologised again for the delay in providing Ms B, and Mr and Mrs C with a copy of the 2017 remedial notice. The Council noted Ms B had now made her own high hedge complaint and the relevant team was in the process of considering this.
27. The Council completed its assessment of Ms B’s high hedge complaint and served a second remedial notice to Mrs X on 13 September 2019 to reduce the overall height of her hedge to 6.34 metres. The Council sent Ms B a copy of the notice, which includes rights of appeal for her and Mrs X.
28. Ms B brought her complaint to the Ombudsman as she remained unhappy with the Council’s responses. Ms B feels she should not have had to pay for two high hedge complaints and considers the Council’s initial advice to her was misleading and dishonest.

Analysis

29. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
30. Ms B says the Council officer she initially spoke to in 2016 told her she had no standing to make her own high hedge complaint about Mrs X’s hedge. The Council officer’s recollection of their interaction with Ms B differs from her account. There is no independent evidence to confirm what was said at the time. In the absence of this, I am unable to reach a view on the precise advice Ms B received. The Council’s website at the time signposted people to the relevant Government guidance described in paragraphs eight to 14 above. Given this guidance explains that each person affected would need to make a high hedge complaint in their own right, it seems unlikely Ms B would have been given the opposite advice. On balance, I do not consider there is evidence of fault by the Council.
31. Ms B complains about the delay in the Council providing her with a copy of the first remedial notice issued in 2017. The email correspondence during 2017 does however indicate Ms B was aware of the content of the notice to the extent that she knew the height by which Mrs X had to reduce the hedge and by when. Ms B never had a right of appeal against the first remedial notice and as such I do not agree she has suffered significant injustice because of the Council’s delay.
32. Ms B also complains that she had to pay twice for the same high hedge complaint. I have examined a copy of the high hedge complaint form submitted in 2017. This does not indicate Ms B was a co-complainant with Mr and Mrs C nor does it show Ms B paid a proportion of the complaint fee. Ms B’s submissions about Mrs X’s high hedge are included with the representations made by other residents in the area who provide details of how they are personally affected by Mrs X’s high hedge. There is no evidence of fault in the Council’s handling of the 2017 high hedge complaint. Any issues concerning the payment of the fee are matters for Ms B and Mr and Mrs C to resolve.
33. I also do not consider Ms B has suffered significant injustice in any event. The 2017 complaint resulted in a successful outcome for the complainants as it led to a reduction in the height of Mrs X’s hedge. Ms B’s subsequent high hedge complaint in 2019 also led to a favourable outcome for her in that the Council has ordered Mrs X to reduce the height of the hedge further. Ms B also has the right to appeal the outcome and it is not within the Ombudsman’s jurisdiction to consider any issues that may be the subject of such an appeal.

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Final decision

34. I have completed my investigation with a finding of no fault causing significant injustice to Ms B.

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Investigator's decision on behalf of the Ombudsman