Bath and North East Somerset Council (16 001 215)

Category : Environment and regulation > Trees

Decision : Not upheld

Decision date : 11 Oct 2016

The Ombudsman's final decision:

Summary: The Council was not at fault for how it decided to deal with a remedial notice relating to a high hedge.

The complaint

  1. The complainant, whom I shall refer to as Mrs C, complained the Council failed to take enforcement action against her neighbour when he failed to comply with the terms of a remedial notice.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by fault. She can consider the way an authority makes its decisions, but it is not her role to comment on them unless they have been taken with fault. (Local Government Act 1974, section 34(3)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mrs C's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered sections 65, 70 and 75 of the Antisocial Behaviour Act 2003;
    • considered Mrs C’s comments on my draft decision; and
    • gave the Council an opportunity to comment on my draft decision.

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What I found

  1. The Council served a remedial notice on Mrs C’s neighbour requiring works to a hedge. The remedial notice said the neighbour should trim the height of the hedge to keep it at its current height, remove dead stubs to live points or cut back to a main live stem and trim back foliage extending over Mrs C’s garden.
  2. Mrs C’s neighbour told the Council in November 2014 he had completed works to the hedge. An officer visited the site and took photographs. The officer was satisfied Mrs C’s neighbour had undertaken sufficient work to comply with the remedial notice. Mrs C disagreed because she says the neighbour had not removed the dead stubs. The Council decided it was not expedient to take action as it considered the main part of the notice had been complied with. The Council considered Mrs C’s neighbour would therefore have a reasonable defence against any legal action. The Council also took the view the dead stubs do not significantly impact on light to Mrs C’s property given they do not exceed the approved height of the hedge. The Council has, however, asked Mrs C’s neighbour to consider including the removal of dead stubs as part of the planned works for this year.

Analysis

  1. I understand Mrs C’s concern the Council has not required her neighbour to remove dead stubs, despite that being included in the remedial notice issued by the Council. However, section 70 of the Antisocial Behaviour Act 2003 gives the Council the power to waive or relax a requirement of remedial notice. In addition, the Council’s enforcement powers are discretionary. What that means is the Council is not required to take action even if there is a clear breach. Instead, the Council has to decide whether it is expedient to take action. In this case I am satisfied the Council decided Mrs C’s neighbour had complied sufficiently with the remedial notice that no further action was required. As I said in paragraph 2, it is not my role to comment on the merits of an officer’s judgement unless there is evidence of fault in how that judgement has been reached. As the Council decided not to require further action after visiting the site to inspect the works I could not say there was fault in the way it reached its decision. Nor is there any requirement for the Council to enforce every aspect of remedial notice if it does not consider it necessary to do so.

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Final decision

  1. I have completed my investigation and found no evidence of fault.

 

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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