Summary: Mr X complained about the Council’s decision not to take enforcement action for an overgrown hedge and delays in complaint handling. We find fault which caused Mr X avoidable uncertainty and frustration. The Council should review its decision, apologise to Mr X and make a symbolic payment for injustice caused to him.

The complaint

1. Mr X complains the Council:
1. Did not take enforcement action for an overgrown hedge next to his property.
2. Delayed responding to his complaints.
2. Mr X says the overgrown hedge affected his residential amenity and he was inconvenienced trying to resolve the complaint.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I have considered information provided by Mr X and discussed the complaint with him. I also made enquiries with the Council and considered its response and evidence provided.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

High hedge complaints

9. The law giving local councils with powers to deal with complaints about high hedges is contained in Part 8 of the Anti-Social Behaviour Act 2003 (“the 2003 Act”). This makes provision for local councils to determine complaints by the owners/occupiers of domestic property adversely affected by evergreen hedges.
10. The Act says a person can ask a council to issue a remedial notice requiring a hedge owner to cut and maintain a hedge below a maximum height if the hedge consists or is mostly of evergreen or semi-evergreen species, is over 2 metres in height; and as a result of its height is acting as a barrier to light such that a person's reasonable enjoyment of their property is being adversely affected;
11. If a remedial notice is issued and the hedge owner fails to reduce the hedge to or below the maximum permitted height, the council can informally ask the hedge owner to act or take enforcement action, including prosecution in the Magistrates Court. The council can also consider carrying out remedial work itself and charging the landowner for this.
12. The decision whether to take enforcement action is discretionary. There is non-statutory guidance (High Hedges Complaints: Prevention and Cure, 2005) for Councils to help them decide whether formal action is appropriate. The guidance suggests Councils develop a set of priorities to help them determine which cases to enforce. It therefore recommends Councils:
• Acknowledge the alleged failure to comply with a remedial notice and then investigate the current facts, case history, and prepare a report outlining the recommended enforcement action.
• Record and implement the decision and report the outcome to the person who bought the matter to the Council’s attention and review the need for possible further enforcement action where necessary.

The Council’s complaints policy

13. The Council has a two stage complaints process:
• Stage one- The Council aims to investigate and respond to complaints within 10 working days. It may sometimes take longer subject to the complaint issue and the deadline may be extended.
• Stage two- The Council’s review process will be completed within 25 working days. If it requires longer, it will extend the response time and advise the complaint in writing.
14. The LGSCO’s Principles of Good Administrative Practice says we expect councils to be open and accountable. This includes:
• Making timely decisions and providing suitable updates where there is delay.
• Clearly explaining the rationale for decisions and recording them accurately.

What happened

15. Mr X previously complained to the Council about overgrown hedges in a neighbouring garden. Mr X explained the hedges are more problematic during winter months as they block sunlight, which prevents ice, sleet and snow from melting leaving him vulnerable to falls.
16. The available records say:
• The Council previously issued a remedial notice and took enforcement action against the neighbour to lower the hedge height.
• Mr X appealed the remedial notice to the Planning Inspectorate (PINS) as he believed the hedge should be trimmed further.
• In mid- 2022, the PINS varied the remedial notice to a lower hedge height with a nine-month compliance period.
• The PINs decision also described the hedges as overbearing, a solid barrier to sunlight into Mr X’s garden and concluded it was having an adverse effect on Mr X’s enjoyment of his property.
17. Mr X said the Council did not take further action after the PINS decision. He decided to wait as he believed it was due to the bird nesting season between March and September, when hedges are generally not disturbed.

Mr X’s enquiries with the Council

18. The records show Mr X emailed the Council in mid-November. He explained the hedges had grown further and enquired about the Council’s intentions. The records do not show the Council responding to Mr X’s email.
19. At the beginning of January 2023, Mr X wrote to the Council again. He said it had failed to enforce the PINS decision and the hedge had continued to grow. He reminded the Council the bird nesting season was again imminent and if it did not enforce, he would consider legal action.
20. In mid-January, Mr X received a service response from the Council’s allocated environmental health officer (EHO), who:
• Apologised for the delay in replying to Mr X’s previous communications due to being engaged in other duties.
• Explained that works in default or prosecution for non-compliance was not a statutory duty for the Council and it was unable to help.
• Confirmed the Council would review the position again in September.

Mr X’s complaint

21. Mr X then complained to the Council in mid-February 2023 about its continued failure to take enforcement action against his neighbour.
22. The records show:
• In mid- March, the Council acknowledged Mr X’s complaint and advised it needed to discuss the case with the EHO who was on leave until mid-April. It apologised for the delay and said it would update Mr X in due course.
• In late April, the Council provided Mr X a further update. It said it was still unable to discuss Mr X’s case with the EHO. It apologised for the further delay and said it would write to Mr X again as soon as possible.

The Council’s complaint responses

23. In its late May, stage one response the Council said:
• The EHO had recently returned to work, and it had now discussed the case. Mr X’s neighbour would first be given the opportunity to reduce the hedge. However, if no progress was made by December 2023, further works in default would be carried out and the neighbour would be charged for the costs.
• It accepted it had taken a significant time to reach a point (late 2023/early 2024) when the hedges could be lawfully reduced, but it did not propose any compensation for the delay.
24. At the beginning of July, Mr X requested a complaint review. He said he did not receive a response and had to contact the Council’s senior management team to investigate further.
25. In its mid-September stage two response, the Council:
• Confirmed Mr X’s complaint review request was received but quarantined by the Council’s IT department. This had caused a delay in providing its stage two response.
• Confirmed it would carry out an inspection to measure the neighbour’s hedge and decide on enforcement steps. This would be subject to access and staff availability. It could not guarantee that any works would be carried out.
• Explained it was ultimately Mr X’s neighbour’s responsibility to comply with the remedial notice. While the Council had a power to enforce, there was no absolute requirement for it to do so.

The Council’s response to our enquiries

26. The Council told us:
• It does not have a specific enforcement policy in relation to overgrown hedges.
• It decided not to take enforcement action in Mr X’s case due to higher priority statutory duties during a period of limited staff resources.
• It had never prosecuted for an overgrown hedge and was not planning to take any enforcement action in Mr X’s case.
27. Mr X has sent us more recent photographs of the hedges. These indicate the hedges have now grown to the height of neighbouring roofs and clearly blocking light into his garden.

Was there fault and did it cause injustice?

i) Mr X says the Council failed to take enforcement action for an overgrown hedge next to his property since May 2022.

28. The Ombudsman is not an appeal body. It is not our role to decide whether the Council should take enforcement action, that is the Council’s job. Our role is to review the process by which decisions are made. If we consider there was no fault in the decision-making process, we cannot question the merits of the Council’s decision.
29. I have considered the steps the Council took when deciding it would not be taking further enforcement action in Mr X’s case. In my view, the Council has not provided evidence to show it properly considered all the information in reaching its decision. The Council also confirmed it does not have an applicable enforcement policy for overgrown hedges. It is therefore unclear what steps it follows to ensure its enforcement approach is consistent and in line with the law and guidance as set out at paragraphs 11 and 12 (above). This explains the enforcement options open to Councils and recommends they develop a set of priorities to help them determine which cases to enforce. It also advises Councils investigate case facts, record decisions, and consider further reviews where necessary. The Council’s records do not show it properly considered these issues. Had it done so, I would expect it to have set this out clearly in its response to my enquiries. The evidence provided does not indicate that it did. This is also inconsistent with our Principles of Good Administrative practice, which expect a clear contemporaneous record of the rationale for decisions (Paragraph 15). This is fault which has caused Mr X avoidable uncertainty and frustration about how the Council reached its decision not to take enforcement action.
30. I note the Council also provided different explanations to Mr X about its enforcement plans which caused him confusion. In its initial service response (Paragraph 21) it explained it was not under a statutory duty to enforce and was unable to help. In its stage one response (Paragraph 23), it said it would enforce by December 2023 if Mr X’s neighbour did not comply. In its stage two response (Paragraph 25) it told Mr X it would inspect the hedges again before deciding if would take further enforcement steps but could not guarantee further action. The available records do not show if the Council completed its further inspection and sent Mr X a final decision. This was poor communication which caused Mr X avoidable uncertainty and frustration about the likely outcome in his case. He therefore lost confidence in the Council’s processes and felt the need to complain to the Ombudsman.

ii) Mr X says the Council delayed responding to his complaint in a timely fashion.

31. The available evidence shows the Council did not provide Mr X with a stage one complaint response within 10 working days as set out in its policy (Paragraph 13). However, I note it sent Mr X updates in Mid-March and late April 2023 (Paragraph 22) to apologise and explain this was due to officer leave. The Council’s policy does say it may extend the deadline for the response if necessary and it was diligent in keeping Mr X informed. I do not find the Council at fault in relation to this aspect of Mr X’s complaint.
32. The records show the Council’s stage two response was also delayed beyond its 25 working days deadline (Paragraph 13). Mr X therefore had to send further emails to the Council to find out what had happened. The Council later explained this was caused by an IT issue, and Mr X’s review request had been quarantined and deleted. However, it could not say why this had occurred. I appreciate the Council’s explanation and but its failure to respond was not in line with its complaint policy and was service failure as explained at paragraph 3 (above). Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. This meant Mr X experienced uncertainty about whether his complaint was being properly managed.

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Agreed action

33. The aim of our remedies is to try and put the person back into the position they would have been in ‘but for’ the fault. The Council should, within one month of my final decision:
1. Reconsider its decision not to take further enforcement action in relation to the overgrown hedges in line with the applicable law and guidance. The Council should also provide us with a written record of the fresh decision and set out its reasons.
2. Write to Mr X and apologise for the delay in responding to his stage two complaint any avoidable uncertainty and frustration caused to him.
3. Make a symbolic payment to Mr X of £100 for his time and trouble in pursuing his complaint.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I find the Council at fault which caused Mr X injustice. I have made recommendations to address the injustice which the Council has agreed. This is an appropriate remedy.
36. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman