Summary: Two years after making an application under the High Hedge Legislation no action has been taken due to delays and faults by the Council. A lack of training, knowledge, expert advice and unresolved issues between departments were the cause of the faults. A remedy to resolve the injustice caused to Mr X is proposed.

The complaint

1. Over two years, delays and errors in respect of a high hedge notice issued by the Council resulted in it being rescinded twice and no action taken in respect of the trees causing a nuisance.
2. Mr X says the saga has been frustrating and time consuming and affects the enjoyment of his flat and balcony due to the encroachment of the tree branches.

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The Ombudsman’s role and powers

3. 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)
4. If we are satisfied with an organisation’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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

6. In September 2020, an agent acting for Mr X contacted the Council about trees encroaching his property. The Council contacted the neighbour, Mr Y, explaining it had received a complaint about the hedge on his property. An officer visited the property to inspect the hedge.
7. In November the Council told Mr X it was waiting for advice from its Aboricultural Team. However, at the end of November a decision was made to engage an external tree specialist firm as the Council’s aboricultural team was unable to assist. The Council says it asked the firm to provide an assessment to determine if the hedge fell within the legal definition of a High Hedge and to determine the works necessary to lower the height to abate any nuisance.
8. The external tree firm visited the site in December 2020 following which they wrote to the Council with an invoice outlining what was required to improve the light deprivation. It did not provide a technical assessment as requested. The Council says as a result it did not pay the company any fee.
9. The Council served the remedial notice on Mr Y on 2 February. Mr Y appealed the notice on 1 March. Nothing further was heard until November 2021 when the Planning Inspectorate informed the Council the notice was fatally flawed and recommended it be withdrawn and correctly issued.
10. The officer dealing with the notice requested advice from the Council’s Aboricultural Team and also contacted the Planning Inspectorate seeking advice. The Planning Inspectorate sent a sample copy of the format for a notice.
11. On 14 January 2022 the officer visited the site and took measurements of the hedge. The officer passed the measurements to the Council’s Aboricultural Team who agreed with the measurements. On 4 February 2022 a second remedial notice was issued to Mr Y.
12. It appears there was then some confusion about whether Mr Y had submitted an appeal against the second notice. Mr Y had appealed and the Planning Inspectorate visited the site in July 2022. In October 2022, the Planning Inspector advised the second notice should be withdrawn. His decision stated that the vegetation did not constitute a high hedge and he took the view this was the case when the Council served the remedial notice.
13. Mr X made a formal complaint to the Council in October 2022. He complained that 18 months after he started the process he was no further forward and had incurred considerable expenses and been put to a lot of time and trouble.
14. The Council’s response dated 2 November accepted there was a lack of technical skills amongst its officers along with an absence of technical support from the in-house Aboriculturalists. It accepted it had delayed in responding to Mr X’s requests and in carrying out site investigations. It said the requirement for internal liaison between various departments to clarify roles and responsibilities also caused delays. It said it would refund the fee paid by Mr X as well as exploring the possibility of paying some financial compensation with its insurance team though it noted the Ombudsman was able to recommend financial awards. Mr X chose to make a complaint to the Ombudsman and so the Council did not pursue the issue with its insurer.
15. Mr X took further advice from a tree specialist and in February 2023 made an application to prune trees that are covered by an Area Tree Preservation Order. The application is not yet determined though I note the Council has consulted with Mr Y and he has raised no objections to the work.

Analysis

16. This complaint concerns the Council’s actions in respect of an application under the High Hedge legislation. This legislation, which is part of the Anti-Social Behaviour Act 2003, allows a council to take action if it determines the height of the hedge is having an adverse effect on the neighbour's enjoyment of their home and/or garden. The council can order the owner of a high hedge to take action to resolve the problem and stop it from happening again. Determining whether the hedge meets the requirements of the legislation is a matter of judgement in respect of the type of trees and shrubs, position, height and size of any gaps.
17. The officer allocated the application had no training or technical knowledge in respect of the high hedge legislation. Due to issues within the Council, which I will explain in more detail below, there was no expert advice available to this officer. As a result, the first remedial notice was considered by the Planning Inspectorate to be fatally flawed. This is fault.
18. It was the same untrained officer that was tasked with completing the second remedial notice. Again the officer was required to do this without any expert support. Mr Y’s appeal against the second notice was fully considered by the Planning Inspectorate and included a site visit. The Planning Inspector found that the hedge did not meet the requirements of the legislation to be considered a high hedge. While I appreciate this is a matter of professional judgement, I consider the fact the remedial notice was completed by an officer without expertise amounts to fault. The Planning Inspector noted there were gaps in the hedge and that it consisted of many deciduous trees and shrubs. I consider, on balance, these issues would have been noticed by someone with knowledge and expertise.
19. As a result of the above identified faults, and other delays accepted by the Council over two years, no action was actually taken to reduce the trees causing Mr X a nuisance. This caused frustration, raised his expectations and put Mr X to considerable time and trouble. He has now submitted an application to carry out works to the trees which are covered by an area Tree Protection Order. This application was submitted in February 2023 and so has not yet been determined. I would hope the Council would complete the determination of this application without any delay.
20. In response to my enquiries, the Council acknowledges internal issues which have contributed to the fault in this case. It says that when this council was formed in 2019 as a result of Local Government Reorganisation, it failed to specify which service area would be responsible for High Hedge legislation. It says that this area of expertise was not fully considered and some legacy arrangements caused confusion and have remained ever since.
21. The Council says that conversations between team managers commenced in October 2022 regarding the transfer of responsibility and while some progress has been made there are still issues with recruitment and capacity in the Arboricultural Team. The Council has procured a contract with a local tree specialist who will act in respect of any High Hedge complaints.
22. The Council accepts there was an unclear process at the time of Mr X’s original complaint, a lack of training, technical knowledge and availability of expert advice which led to delays and errors. While the process was clarified for the second application the continuing lack of knowledge and expert advice meant an incorrect definition of the High Hedge Legislation as determined by the Planning Inspectorate.

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Agreed action

23. To remedy the injustice caused to Mr X as a result of the faults identified in this case the Council will, within one month of my final decision, take the following action:
• Apologise to Mr X;
• As already offered, refund the fee Mr X paid for the high hedge application;
• Make a symbolic payment of £300 to recognise Mr X’s uncertainty and raised expectations; and
• Pay Mr X £250 to recognise his time and trouble in pursuing this matter.
24. Within three months of my final decision the Council should also take the following action:
• At a senior level, the Council should draw together the learning from the faults identified in this case and produce an action plan to ensure that proper resources and expertise are in place to ensure similar issues do not arise in the future.
25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman