Summary: Mr C complains about the way the Council responded to his reports of nuisance from rabbits entering his garden which have caused damage. The Ombudsman has found fault by the Council in the delay in advising Mr C it did not own the land the rabbits were entering his property from and in providing the landowner’s details. However, the Ombudsman considers the agreed action of an apology is enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council failed to respond properly and take appropriate action in response to his reports of nuisance from rabbits entering his garden. Mr C says because of the Council’s fault, the rabbits have caused subsidence at his property boundary leading to a replacement fence being needed and damaged the grass and plants in his garden. Mr C also says he has had to spend unnecessary time and trouble in pursuing the matter.

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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 read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and provided an opportunity for comment.

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What I found

5. England (excluding the City of London and Isles of Scilly) was declared a rabbit clearance area under the Pests Act 1954. Section 1 the Pests Act 1954 places a continuing obligation on occupiers of land within this area to control rabbit numbers on their land unless they can show it is not reasonably practicable to do so. If it is not possible to control the number of rabbits, landowners must stop them causing damage elsewhere for example by putting up rabbit proof fencing.
6. A person suffering ‘significant crop damage’ caused by rabbits from neighbouring land can complain to Natural England. Significant crop damage is described as agriculture, horticulture or forestry. Natural England says it will remind occupiers that do not deal with a rabbit infestation on their land which causes serious damage to neighbouring land of their obligations and allow a reasonable time for them to address the issue. If such a warning is ignored, the Secretary of State for the Environment has discretionary powers under section 98 of the Agriculture Act 1947 to serve a notice requiring the occupier to take specified action against the rabbits. If an occupier does not take the required action they are liable for prosecution. The Secretary of State can also arrange for a third party to carry out the necessary control work on the land and recover the costs of this work from the occupier.

Key events

7. Mr C reported problems from rabbits entering his garden in July 2018 to the Council. The Council visited Mr C’s property in August. The Council says it was not clear from this visit that the damage to Mr C’s land was from rabbits entering his garden. This is because at the time there was significant damage being caused to the neighbouring land and boundaries from trespassing.
8. Mr C contacted the Council during September and early October about the continuing problems. Mr C made a formal complaint about the Council’s response in October.
9. The Council visited Mr C’s property again in October and confirmed there was evidence of rabbits entering his garden from the neighbouring land. The Council advised the landowner of the neighbouring land about the issue in November. The Council also confirmed to Mr C that it did not own the land and so it was not covered by its own insurance policy. This meant any claim about the damage to his fencing would need to be made to the landowner and the Council provided the necessary details. The land is owned by a charitable company which is a separate legal entity to the Council. The Council has confirmed it has no interest in or management responsibility for the land.
10. The Council also arranged a site visit with a pest controller to assess the treatment options in November. The treatment required some vegetation being cut back and risk assessments for the use of gas. The pest control measures were completed in December. The Council also provided a response to Mr C’s October complaint and says the delay was to provide an update on the above actions.
11. Mr C made a claim to the landowner about his fence in December. The landowner accepted liability for the damaged fencing in the sum of £1,820 in December. The Council understands this payment was made to Mr C by the landowner in February 2019.
12. The Council visited the site with Mr C in January 2019 and found the treatment had been successful on the land but that rabbits also appeared to be coming onto the land from two other areas of land owned by two different third parties. The Council helped arrange quotes for rabbit proof fencing between Mr C’s land and the adjoining land. The quotes were received in February. The Council liaised with the landowner and obtained confirmation for the works to proceed in March. The fencing was completed in May and the Council has provided details from the contractor. The Council has accepted there was some delay here due to a purchase order issue and contractor illness.
13. Mr C contacted the Council following the completion of the works as rabbits were still entering his property. The Council visited the site with the pest contractor in June to assess whether any further works were needed to the rabbit proof fencing. Following this visit, the Council liaised with the landowner about additional works to extend the fencing which would require some tree removal works. This additional work was completed in July.

My consideration

14. The Council should have advised Mr C at its August visit that it did not own the neighbouring land and made clear he would need to make any reports or claim for damage to the landowner directly. Although the Council did not at that stage consider there was evidence the damage to Mr C’s property was being caused by rabbits this would have allowed Mr C to make his own claim to the landowner concerned earlier than December 2018. It would also have made clear that the occupier of the neighbouring land was responsible for controlling the rabbits.
15. However, it is not clear if an earlier claim to the landowner would have been successful without the supporting evidence from the Council’s subsequent visit to Mr C’s property in October and site visit in November. I note Mr C subsequently made a successful claim for the cost of replacement fencing. In the circumstances, I do not consider the delay and any lack of clarity about responsibility here caused Mr C a significant injustice that cannot be remedied by the Council providing an apology.
16. The responsibility for subsequent pest control measures rested with the landowner and the Council has provided evidence it has used its best efforts to achieve a satisfactory resolution to the issue. This has included working with the landowner and pest contractor in relation to pest control measures and the provision of rabbit proof fencing and further works when it was identified the rabbit proof fencing required extension. I see no fault in the Council’s approach here.

Agreed action

17. The Council will write to Mr C within one month of my final decision to apologise for the delay between the end of August and November in confirming it did not own the neighbouring land and so was not responsible for controlling the rabbit numbers or any damage and providing the landowner’s details for Mr C to make a claim for damage.

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Final decision

18. I have completed my investigation as I have found fault by the Council but consider the agreed action above is enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman