Summary: Mr B complains about works by the Council to a hedge and its response to his subsequent complaint. Mr B says the hedge was left unsightly with large gaps and possible damage which reduced the privacy to the property and left it exposed to traffic noise, pollution and light nuisance. Mr B says this caused his family unnecessary costs, distress and time and trouble. The Ombudsman has found fault by the Council but considers the agreed actions of an apology, payment and service improvements in addition to the already offered further works are enough to provide a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains on behalf of his daughter and son-in-law (Mr and Mrs D) that the Council wrongly completed works to an established beech hedge at their property. Mr B also complains about the Council’s response to his subsequent complaint which he says included unfounded allegations about his conduct. Mr B further complains about additional works to the hedge following a partial collapse resulting from the first works and the Council’s response to his report about this.
2. Mr B says because of the Council’s fault, the remaining hedge was unsightly with large gaps and possibly damaged in places. Mr B says this meant the property was exposed to traffic noise, pollution and light nuisance and suffered from a significant reduction in its privacy. The hedge was also top heavy in places and represented a continuing safety hazard which required further works. Mr B says he and his family have been caused unnecessary costs, distress and time and trouble.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I read the papers provided by Mr B and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr B. I have explained my draft decision to Mr B and the Council and considered the comments received before reaching my final decision.

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What I found

8. The Highways Act 1980 section 41 sets out the Council’s duty to maintain and repair all its highways that are maintainable at public expense. There are no statutes regulations prescribing the standards to which highways authorities should maintain highways. In the case of Rider v Rider 91973) in the Court of Appeal, Lord Justice Sachs said the highways authority’s duty “… is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them.”
9. The Highways Act 1980 section 154 provides the Council with the power to give 14 days notice to a landowner or occupier to cut or fell overhanging vegetation which is obstructing the passage or view of highway users. The Council may carry out the work required by the notice and recover costs reasonably incurred if there is a failure to comply with the notice.

Key facts

10. The Council received telephone reports of obstruction to traffic lights at a junction near Mr and Mrs D’s property during July and of weeds and branches overhanging the pavement in August 2018.
11. The Council wrote to Mr and Mrs D on 5 September to say overgrown vegetation at their property was causing an obstruction to pedestrians on the publicly maintainable footway. Although this letter was correctly addressed to Mr and Mrs D the salutation referred to a different surname. The Council acknowledged this administrative error in its complaint correspondence with Mr and Mrs D and apologised. The Council referred to section 154 of the Highways Act 1980 and asked for any hedge, trees or shrubs along the border of the property to the highway boundary to be cut back. The letter asked for the works to be completed within 14 days or the Council may serve a notice requiring compliance. The Council sent a similar letter to Mr and Mrs D on 17 September. This made no reference to the previous letter or deadline.
12. Mrs D says she telephoned the Council on 19 September after receiving the second letter as she had ensured works had been completed as requested. She says the Council confirmed it had inspected the hedge which was acceptable, and she should ignore the second letter. The Council explained the hedge requiring work was further down the road as that hedge was obstructing the view of the traffic lights.
13. The Council has not been able to provide a record of this call or the inspection. The Council accepts it did speak to Mrs C in September and confirmed the completed hedge works were adequate. There is also a record dated 11 October to say the site had been inspected and the vegetation had been cut back apart from at the traffic lights which belonged to a different property.
14. The Council received a further report on 20 October about vegetation obstructing the traffic lights. The Council’s records show it subsequently visited the site and required work and issued a s154 notice on the property owner. The works at this location were inspected in March 2019 and confirmed as being adequate.
15. The Council has provided a copy of a works order to its contractor for works at Mr and Mrs D’s property. This is dated 10 September 2018 and required vegetation clearance of 5.5 metres above the footway and cut back 300mm from the rear of the footway where possible. This states the works should give as much clearance as possible around and in front of the traffic light. This follows an email from the Council to its contractor seeking a quote for the works at two locations with an accompanying plan which is dated 29 August. The plan included both Mr and Mrs D’s property frontage and the one next to the traffic lights.
16. The Council’s contractor completed some of the work on 13 November but did not start work at Mr and Mrs D’s property until 17 December. Mrs D says she asked the contractors on the day to stop work until she had spoken to the Council but they refused. Mrs D says she telephoned the Council while the contractors were at the property and was told the contractors had not been given authority to complete works to her hedge but to her neighbour’s. However, by this time the contractors had substantially completed the work. The Council’s record of this call confirms the relevant officer advised the works were for the property on the junction with the traffic lights. The Council noted the landscape map for the works provided to the contractor included Mr and Mrs D’s property but the owner had already cut this section back.
17. The contractor confirmed to the Council that Mrs D had spoken to its operators on site and that they apologised for cutting the hedge back hard along with the rest of the works but they were working to the plan provided to them by the Council and had no knowledge of the works she had already carried out to the hedge.
18. Mr B complained on behalf of Mr and Mrs D on 18 December. The Council spoke with Mr B to confirm receipt of his complaint on 21 December and that due to the Christmas break the Council would be in touch in the New Year. The Council telephoned Mr B on 3 January to confirm it would be visiting the site. The Council sought a site meeting on 23 January.
19. Mr B refers to a subsequent telephone call on 25 January in which he says the Council accused him of being abusive, threatening and secretly recording the call. The Council has not provided a contemporaneous record of the call but has provided the officer’s recollection which confirms this was a difficult call and explains the misunderstanding about recording the call. Beyond the failure to keep a proper record of the call I see no obvious fault in what was purported to be said here and consider there is no benefit to further investigation by the Ombudsman on this point.
20. The Council provided a reply at Stage 1 of its complaint procedure on 31 January and apologised it had not met the timescales set out in its complaint procedure. I consider the Council’s apology is a sufficient remedy and note it had been in contact with Mr B by telephone. The Council explained there had been two teams involved with the stretch of road involved responding to different enquiries and they had not been aware of the other’s action. The Council apologised for this duplication creating a muddled situation and affecting the quality of information provided to Mrs D. The Council did not consider compensation was appropriate and noted the hedge should recover well during the next growing season.
21. Mr B says part of the hedge collapsed during the night of 3 February 2019 due to being left in a top-heavy state by the Council’s contractors. There had been snow fall. This blocked the access to Mrs D’s property which proved particularly stressful as she and her new-born child had to be taken to hospital by ambulance and had to use an alternative and unsuitable access point which delayed what was an emergency situation. Mr B says the Council’s out of hours number was used to report the matter but they were wrongly referred to the District Council and when he tried various numbers for the Council to report the obstruction to the highway and sent follow up emails he received no response.
22. The Council has provided a voicemail recording left at 7.09am on Sunday 3 February from Mr B to one of its officers about the section of hedge which had fallen into the road. The officer was not at work and his phone messages were not being monitored. The Council says Mrs D also telephoned to report her hedge had fallen into the road that morning and the matter was dealt with by its duty officer who arranged for its contractor to remove the fallen vegetation from the pavement and road the same day. This order was marked as an out of standard working hours emergency response. It is difficult to reach a view on what response Mr B received overnight without details of the numbers used, time of the calls or name of the person spoken with. I note the obstruction was removed on 3 February. In the circumstances, I do not consider further investigation on this point is merited.
23. The Council met with Mr D on site on 8 February and has provided a note of the visit and copy of the photographs taken. Mr B emailed the Council on 17 February to say he had received a quote for £230 for cutting the hedge and he wanted to get this done before the bird nesting season starting in March. The Council responded on 18 February to confirm any works were at Mr B’s own risk as it had not completed its Stage 2 complaint investigation.
24. The Council subsequently wrote to Mr B at Stage 2 of its complaint procedure on 7 March and offered some further hedge trimming works to the crown of the hedge to improve its appearance and encourage an even regrowth. Mr B responded to seek the cost of the previous hedge tidying quote above and £500 for the time, trouble and distress caused. The Council rejected this request and referred Mr B to the Ombudsman.

My consideration

25. Mr and Mrs D responded to the Council’s first letter in September 2018 seeking works to their hedge and were told the works they had arranged were adequate. It was reasonable for Mr and Mrs D to rely on this advice from the Council. However, Mrs D faced an unexpected visit by the Council’s contractors in December who completed a much harder cut back of her hedge. It is clear the contractors were working to a plan provided by the Council.
26. The above timeline makes clear that the 29 August plan should have been amended to remove Mr and Mrs D’s section of hedge from the works following their own works in September which the Council had advised were acceptable. The Council has acknowledged there was a lack of communication between the relevant officers about the issue. There was also a failure to keep a proper record of substantive telephone calls and inspections. I consider both the communication failure and lack of adequate record keeping constitutes fault.
27. There is no doubt the Council is entitled to complete works to ensure the highway is kept clear although I would expect an opportunity for the homeowner to complete the works to be provided first and proper notice if the homeowner does not comply other than in emergency situations. This did not happen here.
28. I am satisfied, based on a balance of probabilities, that without the fault identified above the works to Mr and Mrs D’s hedge by the Council’s contractor would not have happened. This may also have avoided the subsequent partial collapse. The works caused unnecessary distress and time and trouble to Mr and Mrs D at a sensitive time for their family and a temporary loss of amenity until the hedge recovers. Mr B was also put to unnecessary time and trouble in trying to resolve the issue. I consider this injustice requires a remedy in addition to the apology already provided and the offer of some further hedge trimming works to the crown of the hedge to improve its appearance and encourage an even regrowth.

Agreed action

29. In addition to the Council’s offer of further hedge trimming works as set out above it will:
1. write to Mr and Mrs D to apologise for the fault identified above within one month of my final decision;
2. pay Mr and Mrs D £200 for their distress, time and trouble and temporary loss of amenity within one month of my final decision;
3. pay Mr B £50 for his time and trouble within one month of my final decision;
4. review its system to ensure information is properly shared and recorded between relevant officers and teams to avoid a recurrence of the fault identified and provide evidence of this review to the Ombudsman within three months of my final decision; and
5. remind relevant officers of the need to ensure there is a proper record of substantive telephone calls and inspections and provide evidence of this action to the Ombudsman within one month of my final decision.

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Final decision

30. I have completed my investigation as there was fault by the Council. However, I am satisfied the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman