Summary: Mrs P has complained about the Council failing to provide her the opportunity to make comments before it issued a remedial notice against her. However, there is a right of appeal against a remedial notice to the Planning Inspectorate. Mrs P used her right of appeal and so the Ombudsman has no jurisdiction to investigate. The Ombudsman therefore has discontinued his investigation.

The complaint

1. The complainant, who I refer to as Mrs P, is making a complaint about a remedial notice served on her by the Council in respect of her garden hedge. She says the Council did not tell her of the complaint before it issued a remedial notice. Mrs P feels she was therefore denied the chance to make representations against the notice and to make her case against the notice.
2. In addition, Mrs P complains about delays in the Council’s complaints process and it not responding to her emails, or only providing partial responses.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has appealed to a government minister. The Planning Inspector acts on behalf of a government minister. (Local Government Act 1974, section 26(6)(b), as amended).
5. The courts have said that where someone has used their right of appeal the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).

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How I considered this complaint

7. I have reviewed Mrs P’s complaint to the Ombudsman and Council, including her supporting documents. I have also had regard to the responses of the Council, applicable policy and legislation. Both Mrs P and the Council made comments on a draft of my decision before reaching a final view.

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What I found

Background and relevant law

8. Section 66 of the Anti-Social Behaviour Act (the Act) 2003 defines a high hedge as a line of two or more evergreen or semi-evergreen trees or shrubs higher than two metres above ground level that form a complete barrier to light or access. The government has issued non-statutory guidance regarding how councils should approach high hedge complaints. This is called ‘High Hedges Complaints: Prevention and Cure’ (2005).
9. The Act also gives provision for local councils to determine complaints by the owners of domestic property adversely effected by evergreen edges over two meters high. Councils are able to charge a fee for this service, to be paid by the complainant. They may also reject the complaint if they feel insufficient effort has been made to resolve the matter informally.
10. Councils may, if they feel the circumstances justify it, issue a notice to the owner of the land where the high hedge is situated to take action to remedy the problem or prevent it from reoccurring. This is known as a ‘remedial notice’. Any remedial notice may be enforced through criminal prosecutions and/or by councils entering the land and carrying out the necessary work if the owner fails to do so. The recipient of a remedial notice served in connection with Section 66 of the Act can appeal to the Planning Inspectorate for a final decision.
11. The role of councils is to act an independent and impartial third party. They do not negotiate or mediate between the parties to the dispute. However, they will adjudicate on whether the hedge is adversely affecting the reasonable enjoyment of the complainant’s land and whether therefore it falls within the meaning of Section 66 of the Act. In doing so, councils should take account of all views and factors, including the hedge owners own amenity and that of the wider neighbourhood. They will assess each case on its individual merits.

What happened

12. In August 2019, the Council served a remedial notice on Mrs P for a high hedge it considered fell within the meaning of Section 66 of the Act.
13. In October 2019, the Council withdrew its remedial notice to gain further information about the matter. However, in the same month the Council served a further remedial notice on Mrs P.
14. In December 2019, Mrs P raised a complaint with the Council concerning it not affording her the opportunity to comment or make representations before the issuing of a remedial notice.
15. In June 2020, the Planning Inspectorate made a decision on Mrs P’s appeal against the remedial notice. In reaching decision, the Planning Inspectorate had regard to the work carried out on Mrs P’s hedge since the Council investigated and issued a second remedial notice. Its decision was the hedge did not constitute a high hedge within the meaning of Section 66 of the Act.
16. Between August and September 2020, the Council responded under its complaint procedure. It advised the Council felt on the basis of the evidence submitted by her neighbour alone, that Mrs P’s hedge fell within the meaning of Section 66 of the Act. It said it did not therefore feel it necessary to enter into dialogue with Mrs P. However, the Council acknowledged that it should have given notice to Mrs P before it served a remedial notice. The Council said it had reviewed and amended its procedures so to notify all parties to a complaint of its intentions in the future.

My findings

17. It is evident the Council neither provided notice to Mrs P of its intention to serve a remedial notice or offered her the chance to make representations before doing so. In my view, the non-statutory guidance is clear that councils should take account of all views during the process of determining a high hedge within the meaning of Section 66 of the Act. Moreover, the guidance unambiguously states the hedge owners’ views and representations should be considered. On this basis, the Council was at fault for not affording Mrs P the opportunity to make representations before it issued a remedial notice. I am however satisfied the Council has implemented changes to its procedures in this respect.
18. In each complaint, I must have regard to whether any fault has caused the complainant a personal and significant injustice. This means I must determine whether the fault identified has caused Mrs P serious loss, harm or distress. In my view, the primary consequential injustice to Mrs P was not being afforded the opportunity to make representations. However, the Council’s decision to issue a remedial notice carries a right of appeal to the Planning Inspectorate. This right of appeal provides the person making the appeal the opportunity to make comments against the remedial notice. Mrs P exercised her right of appeal so the Ombudsman has no jurisdiction to consider any consequences of the issue of the remedial notice.
19. I recognise Mrs P also makes complaints concerning the Council’s conduct during the course of its own complaint procedure. However, I do not consider it to be a good use of public resources to investigate complaints about complaint procedures where I have determined I cannot deal with the substantive element of the complaint. For all these reasons, I have discontinued my investigation.

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Final decision

20. The Council was at fault for failing to give Mrs P the opportunity to make representations before it issued a remedial notice. However, Mrs P used her right of appeal against the notice and so the Ombudsman cannot investigate the reasons for the issue of the notice. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman