Summary: We do not find fault in the Council’s decision to close an investigation into Japanese Knotweed invading Mrs W’s land. Nor do we find it at fault for alerting her to an allegation made she had unlawfully disposed of garden waste on neighbouring land.

The complaint

1. Mrs W’s complaint concerned Japanese Knotweed growing on neighbouring land. She complained the Council should not have closed an investigation into the actions of the neighbouring landowner, Mr X. This was because of the continued presence of Japanese Knotweed on his land, which has grown on to her land previously and requires treating. Also, because of his actions towards her, which she said included being rude and aggressive. Mrs W was also unhappy the Council put to her an allegation she had deposited garden waste on Mr X’s land.
2. Mrs W said because of the above she had experienced avoidable distress.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. Before issuing this decision statement I considered:

• Mrs W’s complaint to the Ombudsman and any supporting information provided;
• correspondence between Mrs W and the Council about the matters covered by her complaint, which pre-dated our investigation;
• information provided by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council policy or procedure referred to below;
• any relevant guidance published by this office.

8. I gave Mrs W and the Council a chance to comment on a draft version of this decision statement. I considered any comments they made, or further evidence they provided, before issuing this final version.

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What I found

The law and Government guidance

9. Councils have a general duty to tackle anti-social behaviour (ASB). ASB can take many different forms; and when someone reports a problem, councils should decide which of their powers is most suitable. This can include using powers under the Anti-social Behaviour, Crime and Policing Act 2014.
10. Of most relevance to this complaint, the 2014 Act gave councils the power to issue a community protection notice (CPN). These notices aim to prevent anti-social behaviour which is unreasonable and having a negative effect on the community's quality of life. A CPN requires the behaviour to stop and, where appropriate, requires the recipient to take reasonable steps to stop it happening again. Not complying is an offence and may result in a fine or a fixed penalty notice. Service of a notice can only follow once the council has given a written warning to the recipient.
11. In 2014 the Home Office issued guidance that allowing invasive species to spread, such as Japanese Knotweed, could be a form of anti-social behaviour. In 2017 the Chartered Institute for Environmental Health (CIEH) highlighted this in guidance given to its members. In 2022 the Royal Institute of Chartered Surveyors (RICS) published advice aimed at those selling or buying land with Japanese Knotweed. This too referred to the 2014 Home Office guidance.
12. More recently, in March 2023, the Government issued revised guidance for Councils on use of the 2014 Act. This contains no specific reference to invasive plant species such as Japanese Knotweed. Instead, it encourages councils to take a proportionate response to any specific behaviour causing harm or nuisance.

Council policy

13. The Council has a corporate enforcement policy, which covers several service areas where it has powers to act in response to offences. The policy says the Council will take ‘formal action’ for ‘serious breaches’ of law. It says formal action encompasses giving advice, issuing warnings and so on, as well as action through the Courts.
14. The enforcement policy says the Council will follow five key principles when considering enforcement, including that of proportionality. This means acting in a way “proportionate to the breach and the risk to people, property, the community or the environment”.
15. When we began investigating this complaint, the Council published on its website a list of behaviours that it would not investigate as anti-social behaviour. This included complaints about invasive plant species. However, during our investigation the Council changed this page. It now says such complaints “may fall” outside its ASB powers but that it may decide to investigate individual cases.

Chronology of key events

16. What follows is a brief summary of Mrs W’s contacts with the Council and its responses. It is not exhaustive.
17. In 2018 Mrs W discovered the presence of Japanese Knotweed in her garden. This had invaded her property from neighbouring land, owned by Mr X. Mrs W reported the matter to the Council.
18. The Council contacted Mr X and he cleared the plant from his land. But it grew back in 2019 and in due course, the Council decided to take enforcement action. In 2020 it prepared court proceedings to obtain a CPN against Mr X. But it dropped this action because Mr X had begun clearing the land again and because its proposed notice was defective.
19. During 2020, Mrs W reported Mr X spraying healthy plants on her land with product used to kill the Japanese Knotweed, causing those plants to die. She also reported this to the police, who resolved to take no action considering the damage accidental. The Council spoke to the local police force at the time and agreed with its analysis.
20. In 2021, while reporting a regrowth of Japanese Knotweed Mrs W reported Mr X having previously been aggressive and nasty towards her. She did not say what he did, or when this took place. Mrs W later reported Mr X making an abusive comment towards her and said he had twice sprayed plants in her garden with chemicals. The Council has said the lack of detail and corroboration surrounding these reports, meant it could take no further action.
21. In June 2021 the Council agreed an approach to visit the site yearly, and that it would contact Mr X if it found the plant not under control. Visits during 2021 and 2022 found no, or limited, evidence of growth.
22. Between 2018 and 2021 the Council investigated several reports made by Mrs W expressing concern at how Mr X disposed of any Japanese Knotweed pulled from his land. After enquiring it considered the waste suitably disposed of.
23. Consequently, in October 2022 the Council took the decision to close the case. At a final visit to the site, its case officer noted garden waste deposited on Mr X’s land. They were told Mrs W deposited the waste. When the Council wrote to Mrs W to close the case it mentioned this report saying: “this is an allegation only, there is no evidence to suggest that this was the case”. But they advised if the allegation were true, then depositing waste in this way could be an offence.

Mrs W’s complaint

24. In May 2023 Mrs W complained about the Council closing her case. She also complained at the Council referring to the allegation she deposited garden waste on Mr X’s land in its October 2022 letter. The Council replied to that complaint in July 2023, defending its decision.
25. In doing so, the Council referred to the RICS guidance issued in January 2022. It explained that this set out criteria for surveyors to decide how much impact Japanese Knotweed had on neighbouring properties. That in Mrs W’s case the impact would be ‘negligible’, the lowest on the scale. It said this advice helped inform its decision to close the case. It also made another site visit in Spring 2023 and remained satisfied the Japanese Knotweed was under control.
26. Mrs W remained dissatisfied and escalated her complaint to stage two of the Council complaint procedure. The Council again defended its actions and explained its view that Mr X now kept the Japanese Knotweed under control.
27. Mrs W remained unhappy and so complained to us. In doing so she asked us to also consider concerns:

• that Mr X illegally disposed of the Japanese Knotweed;
• the Council had inappropriately shared information with Mr X about how she treats Japanese Knotweed on her land;
• that it had not properly communicated with her during its consideration of her case.

My findings

Scope of my investigation

28. Mrs W’s complaint referred to events that took place more than 12 months before she made her complaint to the Ombudsman. So, I had to first consider, to what extent Mrs W’s complaint was a late complaint.
29. I decided I could investigate Mrs W’s complaint about the Council closing her case in October 2022. Mrs W complained to the Council about its decision within 12 months. She then came to this office to complain about its response within another 12 months. As Mrs W did not therefore let the matter drop, I decided there were special reasons that justified investigating the Council’s decision. This also meant I could investigate her complaint that it wrongly put an allegation to her about her disposing of garden waste.
30. As part of her objection to the Council closing her complaint, Mrs W also raised a series of events that took place in the period 2019-21. In particular, when she raised concerns about Mr X’s disposal of Japanese Knotweed; when she referred to his attitude or statements made towards her; and the suggestion he (or his contractor) deliberately damaged plants in her garden.
31. I exercised discretion to also look at these matters in the context of the Council’s decision to close its case. This was because I considered the Council’s decision to close its case would need to take account of any potential anti-social behaviour by Mr X.

Findings on the decision to close the investigation into Japanese Knotweed

32. If someone allows an invasive species to run unchecked on to neighbouring land, the Council can consider if this is anti-social behaviour. While recent Government guidance does not refer to invasive species specifically, it has never withdrawn earlier guidance saying this could be so. While advice published by relevant professional bodies, such as the CIEH and RICS refers to that guidance.
33. However, that does mean the presence of Japanese Knotweed (or any other invasive species) is by itself evidence of anti-social behaviour. It is not illegal for it to grow on land. Landowners do not have to notify its presence to anyone. And they are under no legal requirement to treat it.
34. So, the Council has a limited role when it receives reports of Japanese Knotweed. It cannot make someone remove it from their land, nor insist they treat it a certain way. But it can:

• consider any report Japanese Knotweed has spread to adjacent land without steps to prevent it;
• investigate any reports of unlawful disposal of Japanese Knotweed waste.

35. I consider the current advice the Council has on its website strikes the right balance. It cautions that it may not always investigate when it receives a report of Japanese Knotweed. But that it may do so.
36. When it decided to close Mrs W’s case, I considered the primary factor that led it to this decision was that it considered the Japanese Knotweed was now under control. The evidence for this found in its 2021 and 2022 inspections.
37. In addition, the Council gave some weight to RICS guidance issued in January 2022. I considered it could do this. Because while the RICS guidance is not aimed directly at local authorities, the document provides helpful guidance on the extent of damage Japanese Knotweed can cause to property and how to categorise this. The Council referred to it in this context. This was appropriate, as it informed its judgement about the extent of harm the Japanese Knotweed caused Mrs W. And therefore, the extent to which it could justify keeping her case open.
38. I did not consider the Council needed to give any additional weight to the reports Mrs W made between 2019 and 2021 around Mr X’s behaviour towards her or her property; or her concerns for how he disposed of the waste. I would have preferred to see more in the way of contemporaneous evidence for how the Council considered the reports of Mr X verbally abusing Mrs W. But it has now set out why it did not take further action against him when it received those reports. I agreed that Mrs W’s reports lacked specificity and corroboration. So, by October 2022, were of limited relevance.
39. I also found the Council had looked at all allegations Mrs W made about how Mr X disposed of Japanese Knotweed pulled from the land. Its enquiries satisfied it there was nothing illegal in its disposal. While I cannot disclose details of this decision making to Mrs W (as the allegation concerns Mr X) I am satisfied those enquiries were robust and we could not find fault with them.
40. In summary then, the Council’s decision to close the case was not one taken with fault. It relied only on relevant considerations and did not take anything irrelevant into account. It followed the approach set out in both Government guidance and its enforcement policy on the need for proportionality when investigating anti-social behaviour. With no evidence of any ongoing nuisance to Mrs W it could not keep the case open indefinitely.
41. I also found no new evidence presented since October 2022, that led me to think the Council should have re-opened the case.
42. So, while I recognised that Mrs W wanted the Council to keep her case open so long as Japanese Knotweed remained on Mr X’s land, I had no reason to recommend this.

Mrs W’s complaint about the content of the October 2022 letter

43. Mrs W experienced distress when the Council put to her an allegation she may have deposited garden waste on Mr X’s land. But I found no fault in it telling her. The Council cannot ignore reports where it receives complaints someone may have committed an offence, for which it has powers to enforce against. It is common practice for councils to write to alleged perpetrators in such cases and warn of potential sanctions, should an allegation be proven.
44. In this case the Council’s letter clearly set out the Council had received an allegation only. It provided advice that depositing of waste in the way alleged, was a potential offence. But did not say Mrs W had committed such an offence nor imply that she was under any investigation for potentially committing such an offence. It was therefore factual and proportionate in its content. So, the Council was not at fault for the content of its letter. Any distress caused to Mrs W arose from the allegation, not the Council's actions.
45. Finally, I found no evidence in the Council records of its contacts with Mr X that it had ever forewarned him of an intent to visit Mrs W. Nor that it had ever shared Mrs W’s personal information with him, including her plan for treating Japanese Knotweed on her land.

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Final decision

46. For the reasons set out above I did not uphold Mrs W’s complaint. Consequently, I completed my investigation satisfied with the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman