Summary: Mr B complained the Council did not take enforcement action against his neighbour whose overgrown garden and run-down building were adversely affecting his enjoyment of his home. The Council was at fault for its delay investigating Mr B’s concerns and updating him about the result. This fault caused Mr B frustration. The Council has agreed to take action to remedy the injustice its fault caused Mr B.

The complaint

1. Mr B complained the Council did not take enforcement action against his neighbour whose overgrown garden and run-down building were adversely affecting his enjoyment of his home. He said the boundary hedge blocked light to his home and garden.

Back to top

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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)

Back to top

How I considered this complaint

5. I considered:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Mr B and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and Guidance

7. Section 215 (s215) of the Town & Country Planning Act 1990 provides councils with the power, in certain circumstances, to issue a s215 notice requiring land to be cleaned up when its condition adversely affects the amenity of the area. The use of s215 notices by councils is discretionary and it is therefore up to the council to decide whether a notice would be appropriate in a particular case.
8. Part 8 of the Anti-social Behaviour Act 2003 allows councils to deal with complaints about high hedges. If a council decides the height of a hedge is having an adverse affect on a neighbour’s enjoyment of their home or garden, it can order the owner of the high hedge to take action. To use this legislation, the hedge must be formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees or shrubs and be more than 2 metres high. The legislation allows councils to set and charge fees for handling these complaints.

Council enforcement plan

9. I have set out below relevant points from the Council's plan.
10. If the person who notifies the Council of an alleged breach of planning identifies themselves by name and address and asks to be informed of the outcome, the Council will usually seek to advise that person of the result of any investigation and any actions taken by the Council.
11. Where appropriate, the Council will normally aim to provide a response to a written notification of alleged breach within 28 working days of being registered by the Council.

Council complaints procedure

12. The Council has a two-stage complaint procedure.
13. Stage one: Council will send an acknowledgement to the customer within 3 working days. The team manager will investigate the complaint. The Council aims to respond to all formal complaints within 20 working days of the submission date.
14. Stage two: The Council will decide if it can help further and whether the complaint warrants further investigation. The Council will let the complainant know the outcome within 20 working days.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. Mr B spoke to his Councillor about his neighbour’s garden. He said it had been left to go wild and the boundary hedge was 30 to 40 feet high in places. He explained the hedge blocked light, and this affected his enjoyment of his home and garden. He also complained about the condition of derelict buildings in his neighbour’s garden.
17. In May 2018, Mr B’s Councillor reported the matter to the Council. He sent photographs of Mr B’s neighbours’ garden and the boundary hedge.
18. The Council decided the matter should be considered by planning control and enforcement. In June 2018, it told Mr B’s Councillor Officer 1 would inspect Mr B’s neighbour’s garden.
19. Mr B met with his Councillor in August 2018 because he had not heard from the Council. Mr B’s Councillor emailed the Council for an update. The Council apologised for the delay and explained it was short staffed.
20. The Council inspected the garden in October 2018. It decided not to take any action against Mr B’s neighbours. Mr B believes the Council inspected the wrong area.
21. In December 2018, Mr B’s Councillor emailed the Council for an update. The Council said it had inspected Mr B’s neighbour’s garden and decided not to take any action.
22. Mr B wrote to the Council to expressed dissatisfaction with the time it took for the Council to inspect his neighbour’s garden and its decision not to take enforcement action. He provided a memory stick with photos he had taken of his neighbour’s garden. The Council opened a formal complaint.
23. The Council responded to Mr B’s letter in January 2019 at stage one of its complaint procedure. The Council said the delay was because of staff shortages. It explained it decided Mr B’s neighbour’s garden was not significantly harmful to warrant issuing a section 215 notice. The Council said if Mr B wanted the site to be inspected again, he could make a new complaint to the enforcement team. It gave him information about part 8 of the Anti-Social Behaviour Act 2003 and explained it charged a fee for handling these complaints.
24. Officer 2 wrote to Mr B. He confirmed that he had inspected his neighbour’s property and did not consider it in such a poor condition the Council should take enforcement action. Officer 2 told Mr B he had the right to trim any foliage that had overgrow the boundary. The Officer also emailed Mr B’s Councillor with this information.
25. Mr B queried whether the Officer, Officer 3, who responded to his complaint had seen the photographs of his neighbour’s garden he included with his letter. Officer 2 advised she had not seen the photographs. In response, the Council opened a new enforcement case and arranged another inspection of Mr B’s neighbour’s garden. It told Mr B it would tell him the result of its investigation.
26. Officer 2 inspected Mr B’s neighbour’s garden in February 2019. He decided the condition of the garden did not warrant action by the Council under section 215 of the Town & Country Planning Act 1990. The Officer updated Mr B and his Councillor.
27. In March 2019, Mr B emailed the Council to express his dissatisfaction with the Council’s investigation and asked Officer 4 to visit his property. The Council told Mr B it would consider his email at stage two of its complaint procedure. It arranged for Officer 2 to visit Mr B.
28. Officer 3 visited Mr B in March 2019 and explained the Council had decided not to take action against his neighbour. She said she did not think the roofing sheets on the run-down building was dangerous or the condition of the garden was a problem. She agreed to arrange another inspection. Officer 1 completed an inspection in April 2019 and officer 2 visited in June 2019. They found no breach of planning control.
29. Mr B chased the Council for the result of the inspection in September 2019. The Council replied in October 2019 and apologised for the delay. It explained the boundary hedge between his and his neighbour’s property did not constitute a high hedge for the purposes of the Anti-Social Behaviour Act 2003. It said the evergreen part of the hedge was mostly ivy and it did not form a continuous barrier to light. It reiterated that it would not pursue a section 215 notice.

Analysis

30. The Council investigated Mr B’s complaint about his neighbour’s garden and decided it was not reasonable or proportionate to take enforcement action under section 215 of the Town & Country Planning Act 1990. This was a decision the Council was entitled to make. I have not seen any evidence of fault in how the Council made its decision not to take enforcement action and so I cannot question its merits.
31. The Council’s enforcement plan says it aims to provide a response to a written notification of alleged breach within 28 working days of it being registered by the Council. There was considerable delay in the Council’s investigations. Mr B’s Councillor asked the Council to investigate his concerns in May 2018. The Council did not carry out a site visit until October 2018. It did not update Mr B until January 2019 after he had chased it for a response. It took the Council seven months to complete its investigation and update Mr B. In March 2019, the Council said it would inspect Mr B’s neighbour’s garden again. The site visit did not happen until April 2019 and the Council did not tell Mr B the result of its investigation until October 2019, after he had chased it for a response. It took the Council another seven months to complete this investigation and update Mr B.
32. The Council delayed investigating Mr B’s complaint about his neighbour’s garden and updating him of the outcome, this was fault. These faults caused Mr B frustration and put him to time and trouble having to chase the Council for updates.
33. The Council failed to respond to Mr B at stage two of its complaint procedure. Officer 3 visited Mr B to discuss his complaint, but the Council did not send a formal written response. The Council’s failure to follow its complaints procedure was fault and caused Mr B more frustration.

Agreed action

34. Within one month of the final decision, the Council will:
• Apologise to Mr B for the Council’s delay and failure to provide a stage two complaint response.
• Pay Mr B £200 for the time and trouble Mr B was put to and the frustration caused by the Council’s faults.
• Remind all planning enforcement staff of the timescale to investigate alleged breaches and update complainants.
35. The Council should provide the Ombudsman with evidence these actions have been completed.

Back to top

Final decision

36. I have completed my investigation and uphold Mr B’s complaint. Mr B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman