Summary: There is no fault in the way the Council decided a high hedge application.

The complaint

1. The complainant, who I will call Mr B, says the Council incorrectly applied Section 66 of the Anti-social Behaviour Act 2003, and associated guidance, when deciding not to proceed with his high hedge complaint. The Council’s complaint response did not address his concerns.
2. Mr B says the Council should not have considered any impact of the hedge at the early stage and should have accepted the high hedge complaint so it could be fully considered. Mr B owns a block of flats behind the hedge and says it makes it difficult to readily find tenants because the hedge affects their enjoyment of the property. If the Council had accepted the high hedge complaint, Mr B would then have a right of appeal about the decision.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered:
• Information provided by Mr B and the Council.
• The Anti-social Behaviour Act 2003
• Guidance produced by the Ministry of Housing, Communities & Local Government called ‘High hedges: complaining to the council’
• Guidance produced by the Office of the Deputy Prime Minister called ‘High Hedges Complaints: Prevention and Cure.’

6. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should happen

7. The Anti-social Behaviour Act 2003 (‘the Act’) gives local authorities powers to deal with high hedges considered anti-social.
8. 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.
9. 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”.
10. 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.

11. When considering whether a particular hedge can be the subject of a complaint under the Act, people should ask themselves:
1. Is the hedge – or the portion that is causing problems – made up of a line of two or more trees or shrubs;
2. Is it mostly evergreen or semi-evergreen;
3. Is it more than two metres above ground level;
4. Even though there are gaps in the foliage or between the trees, is the hedge still capable of obstructing light or views.
12. If the answer to all the above is yes, then it is likely to be a high hedge for the purposes of the Act.
13. If the Council decides it is an invalid complaint it should tell the complainant as soon as possible that it cannot deal with the complaint and return any fee. There is no specific right of appeal against a council’s decision that a complaint is invalid.

What did happen

14. Mr B is the owner of a building situated behind a row of high trees. Mr B put in a high hedge complaint to the Council for consideration. The Council decided the complaint was not valid so did not take it forward for full consideration. The Council says the hedge fails on ground (d) listed above; Mr B disagrees. The Council visited the site and could clearly see Mr B’s building through gaps in the hedge, it did not consider the hedge obstructed light or views to the property as you can see through parts of it.
15. Government guidance says when considering whether the hedge is a barrier to light or access, the Council can only consider the part of the hedge that is above two meters high. Whether the hedge meets this criterion is a matter of judgement, depending on its composition, form, growth habit and past management. The key question is whether – even though there might be gaps in the foliage or between the trees or shrubs – the hedge is capable of obstructing light or views. If individual trees or shrubs are so widely spaced, or the gaps in the foliage are so extensive, that it is possible to see what lies behind them, then the hedge might fall outside the Act.
16. The Council considered this guidance and decided it is possible to see what lies behind the foliage and so the hedge falls outside of the Act and it cannot pursue Mr B’s high hedge complaint. The Council visited the site and looked at the trees to make its decision, though did not visit Mr B’s property.
17. Mr B argues the Council should give the benefit of the doubt, because the guidance states the first step is to look at the potential to obstruct light or access and not whether it actually does.
18. Mr B complained that the officer has made little or no effort to answer the key question of whether the hedge in question is capable of obstructing light or views. The Council does not specifically answer the point, but explains the officer felt the evidence did not demonstrate light loss or any negative effect on the reasonable enjoyment of the property. The officer determined the gaps in the foliage were too substantial to be determined a high hedge. The officer determined that a reasonable amount of light would pass through the hedge, so it was not a light barrier.
19. Even if the Council agreed with Mr B that the hedge is capable of obstructing light or views, then it would consider the grounds of the complaint and whether it should be pursued. The Council would consider the reasonable enjoyment of the property taking account of all relevant factors, including the views of the hedge owner and the contribution the hedge makes to the wider amenity of the area. The Council’s view was that Mr B’s high hedge complaint also fell on these grounds and did not meet the requirements of the Act.
20. The Council gave a detailed decision to Mr B about why it considered his complaint did not meet the requirements of the Act. The Council gave detailed responses to Mr B’s complaint at stages one and two of its complaints procedure.

Back to top

Final decision

21. As there are substantial gaps in the foliage and the building is visible through the hedge, the Council rejected the application. This is a decision the Council is entitled to take, having applied the relevant law and guidance. I appreciate Mr B disagrees with the Council’s decision, but there is no fault in the process the Council followed to reach its view. The officer made a professional judgement having been out to look at the trees, considering the law and guidance, and seeking opinion from a colleague.
22. I have completed my investigation on the basis there is no fault by the Council.

Back to top

Investigator's decision on behalf of the Ombudsman