Summary: We will not investigate this complaint about the Council’s decision not to take enforcement action against third parties for allegedly allowing the spread of Japanese Knotweed to Mr X’s property. The Council has no statutory duty to act, and further investigation will not lead to a different outcome. Also, we cannot achieve the outcome Mr X is seeking. Finally, we consider the Council’s apology and offer of £100 as a suitable remedy for the delay in responding to Mr X’s complaint.

The complaint

1. Mr X complains the Council has failed to act under the Anti-social Behaviour Crime and Police Act 2014 against others who have allowed Japanese Knotweed to spread to his property.
2. He wants the Council to:
• Immediately eradicate the knotweed from his property and provide a certificate of permanent eradication.
• Immediately eradicate the knotweed from housing association properties that surround his property.
• Take legal action against a third party to remove knotweed from their land which is the root cause the problem.
• Recover costs from the third parties; and
• Pay compensation to Mr X for the stress caused by the prolonged time taken to deal with this matter.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), section 34(B))

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. 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 (‘the 2014 Act’).
8. Of most relevance to this complaint, the 2014 Act gave councils the power to issue a community protection notice (CPN).
9. 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.
10. 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.
11. 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.
12. Mr X says he reported the present of Japanese Knotweed on his property to the Council in 2022. He says it has spread from land owned by third parties.
13. The Council says it has investigated Mr X’s reports and considered issuing a Community Protection Notice (CPN) against the landowners. However, it says it must consider whether the landowners have acted unreasonably when dealing with the matter. And whether enforcement action would be a proportionate and necessary response. Having sought information from the third parties and legal advice, it has decided not to issue a CPN. It considers liability for damage to Mr X’s property because of the Knotweed is a civil matter for Mr X to resolve between himself and the third parties.
14. I understand Mr X disagrees with the Council. However, although the Council has the power to issue a CPN, it has no duty to do so. It is for the Council to decide whether to take legal action against the third parties.
15. Also, Mr X wants the Council to eradicate the Japanese Knotweed on his property and the property belong to the third parties. Once the work is complete, he wants the Council to recover the cost from the third parties. This is not something we can require the Council to do.
16. Mr X also complains the Council has delayed in responding to his complaint. The Council has apologised for this delay and offered a payment of £100 for this failure as a gesture of goodwill. We consider this is a suitable remedy to this part of his complaint.

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Final decision

17. We will not investigate Mr X’s complaint as we consider further investigation will not lead to a different outcome. This is because:
• The Council has sought information and legal advice before deciding not to issue a CPN. This is a decision it is entitled to make.
• The Council has no statutory obligation to issue a CPN.
• Decisions for liability for property damage are matters for the courts.
• The Council has apologised for the delay in responding to his complaint and offered a payment of £100 as a gesture of goodwill. We consider this is an acceptable remedy to this part of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman