Summary: The Council failed to issue a decision notice to Mr B about his High Hedge complaint and tell him of his right to appeal its decision. This was not in accordance with the Anti-social Behaviour Act 2003. Mr B was unhappy with the outcome and lost his right to appeal the Council’s decision. Mr B had the time and trouble pursuing a complaint, which could have been avoided. The Council will refund the High Hedge fee, pay Mr B £100, and provide relevant officers with training and/or guidance to prevent future mistakes.

The complaint

1. The complainant, who I will call Mr B, says the Council did not properly process his high hedge complaint and did not give him a right of appeal to its decision. Mr B wants the Council to issue a remedial notice containing a height restriction order. Mr B says without this every time the hedge goes above an acceptable height he will have to complain again to the Council and pay the application fees. This is a lot of time and effort.

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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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered:
• Information from Mr B and the Council
• The Anti-social Behaviour Act 2003
• Guidance issued by the Office of the Deputy Prime Minister called ‘High Hedges Complaints: Prevention and Cure.’
5. Mr 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

6. People do not normally need permission to plant a hedge in their garden, and there are no general restrictions on how high you can grow a hedge. If a hedge is causing you a problem, and you cannot reach an agreement with its owner, you can ask your local council to consider the complaint.
7. Mr B’s neighbour has a high hedge, which affects the light into Mr B’s garden. Mr B could not reach an amicable resolution with his neighbour so completed an application and paid a fee to the Council to adjudicate.
8. The Council is an independent and impartial third party, it does not negotiate or mediate between individuals but will adjudicate on whether the hedge is adversely affecting the reasonable enjoyment of the complainant’s property. The Council will take account of all views and relevant factors and assess each case on its own merits. The Council may order the hedge owner to remedy the problem by, for example, reducing the height of the hedge and maintaining it at the lower level.
9. The Council agreed this was a high hedge in accordance with the Anti-social Behaviour Act 2003 (the Act), and adversely affects Mr B’s enjoyment of his property.
10. The Act requires the Council to tell Mr B and the owner and occupier of the land where the hedge is situated of its decision, and the reasons for it. The Council should also explain the rights of appeal against its decision and enclose the explanatory leaflet ‘High hedges: appealing against the Council’s decision’ and provide the contact details of the Planning Inspectorate.
11. The Council may issue a remedial notice with its decision. Remedial notices define how the hedge should be managed to give effect to the Council’s decision and restore a suitable balance between the amenity enjoyed by the complainant and the hedge owner. The remedial notice is relevant to the land in question rather than to an individual, so remains in force even if the land is sold. The remedial notice will explain the action needed and any further action to prevent the problem recurring.
12. Where the Council decide not to issue a remedial notice because any action to remedy the adverse effect would be minimal, it should consider providing practical advice on how the hedge might be maintained so that it does not cause problems in the future.
13. The Council decided not to issue a remedial notice in this case. The Council said it considered all relevant factors in accordance with the law and guidance, one of those factors was the delayed timescales the Planning Inspectorate was experiencing in dealing with High Hedge appeals. The Council says the other factor was the Action Hedge Height it calculated, and which would be in the remedial notice, was lower than Mr B wanted. The Council considered it was counter-intuitive to issue a notice which would have worsened the situation for Mr B and created new and potentially more significant harm to the enjoyment of his property.
14. The Council discussed a hedge height of four metres with the hedge owner, which was the height Mr B wanted. The hedge owner agreed and cut the hedge to this height. The hedge owner said they would complete an annual cut back to this level. The Council communicated with Mr B over e-mail, but never issued a formal decision setting out the reasons for its decision and Mr B’s right of appeal against it. This is not in accordance with the law and guidance, the formal decision cannot be delivered by e-mail it must be delivered by hand or by post.
15. Mr B had a right of appeal that the Council decided not to require remedial action even though the height of the hedge is causing problems. The Council failed to give Mr B his right of appeal. The Council says the information is on its website and literature, but that is not sufficient, it should be contained in a decision letter.
16. Mr B is unhappy with the outcome as there is no formal requirement for the hedge owner to keep the hedge at four metres, and no official undertaking to do so. Therefore, when the hedge gets too high, if his neighbour will not agree to cut it back, Mr B will have to complain again and pay the application fee which is currently over £600.00.
17. I cannot say the Council’s decision not to issue a remedial notice was wrong. The Council should have explained its decision to Mr B and if he disagreed, he could have appealed to the Planning Inspectorate who would have decided whether the Council was correct or whether a remedial notice was required.
18. Although the Council was trying to help Mr B get an agreed outcome quicker than the formal process, this was not the service he paid for. The Council failed to act in accordance with law and guidance. Because of this Mr B did not receive a formal decision and was not told of his legal right to appeal the Council’s decision. Mr B has had the time and trouble pursuing a complaint, which might have been avoided if the Council’s decision was properly explained to him and had he known of his appeal rights.

Agreed action

19. To acknowledge the impact on Mr B, and prevent future problems, the Council will:
1. Refund the remainder of the High Hedge application fee Mr B paid (the Council had already part refunded this).
2. Pay Mr B £100 to acknowledge his time, trouble and frustration.
3. Provide relevant officers with training and/or guidance to ensure they know the requirements of the Anti-social Behaviour Act 2003 and associated guidance, and act in accordance with it.
20. The Council will complete actions a & b within one month of the Ombudsman’s final decision, and action c within three months of the final decision. The Council will evidence its compliance to the Ombudsman.

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Final decision

21. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B, put him in the position he would be in but for the fault, and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman