Summary: Mr X complains that the Council refused to trim a hedge, did not trim the hedge when it said it would, ignored his requests to share its legal advice with him, and did not deal with his complaint in line with its procedure. Mr X says this has cost him time and trouble. He says the Council has not answered his questions, has ignored his evidence, and the hedge has caused damage to his car. The Ombudsman does not find fault with the Council.

The complaint

1. The complainant, who I refer to here as Mr X, complains that the Council:
1. refused to trim a hedge which obstructs the residents’ right of way;
2. said it would trim the hedge in November 2018, but has not done so;
3. has ignored his repeated requests to share its legal advice with him; and,
4. passed his complaint to the person he complained about, which contravenes the Council’s complaints process.
2. Mr X says this has cost him time and trouble. He says the Council has not answered his questions, has ignored his evidence, and the hedge has caused damage to his car.

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What I have investigated

3. In paragraph 11, I have outlined a person’s right to ask a court to order a council to clear an obstruction. This means that such complaints are usually outside the Ombudsman’s jurisdiction (see paragraph seven).
4. In this case, I have considered the nature and scope of Mr X’s complaint and the wider circumstances. I have also considered whether, in these circumstances, it is reasonable to expect Mr X to take this matter to court. Taking all factors into account, I have decided to exercise the Ombudsman’s discretion to investigate parts a and b of Mr X’s complaint.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. 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)
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

9. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
10. I have considered the relevant legislation and policies, set out below.

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What I found

11. The law says a person has the right to serve a notice on a council requiring it to clear an obstruction from a road. If the council fails to do so, the complainant can then ask the Magistrates Court to order it to do so.
12. The Council publishes its policy about hedges on its website. It says that Council-owned hedges are pruned “according to the plant species and location”, making sure its obligations under the law are met in terms of the bird nesting season. The policy says hedge pruning takes place once a year in the autumn and winter.
13. The policy says that maintaining hedges is the “responsibility of whoever owns the land they are on”. If the land is privately-owned, the policy says the Council will contact the land owner and ask them to take action.
14. The policy outlines the action the Council will take if the land owner does not maintain the hedge. This is in line with the law.

Complaints procedure

15. The Council has a two-stage corporate complaints procedure. Once a person has made a complaint, the Council will respond within 20 working days. The complaint response will usually come directly from the service complained about. If the complaint is complicated and the Council needs more time to investigate, it will contact the complainant and explain this.
16. If the complainant is dissatisfied with the response, they can ask to escalate the complaint to the second stage of the complaints procedure.
17. A senior manager from the relevant service will complete the stage two review and response.
18. If the complainant remains dissatisfied, they will be signposted to the Ombudsman.

What happened

19. Mr X lives on a private, unadopted road over which he and his neighbours have a right of access. The single lane road has hedges on both sides. The Council owns half the width of this road, and the hedge in question is on the boundary between the road and the neighbouring property.
20. In 2015, Mr X complained to the Council that it was not trimming the hedge as it should. In response to this complaint, the Council said that if the land remained in its ownership, it would consider “the most appropriate means of management and maintenance of the grass strip and road”.
21. In 2017, Mr X told the Council the hedge needed trimming. The Council told Mr X that it cut back hedges over the last two years as sign of good will, even though it only owns half the road and neither of the hedges.
22. In September 2018, the Council told Mr X it would not authorise any further hedge trimming because it was under no obligation to do so.
23. Mr X complained to the Council. He said the Council had given him conflicting information about whether or not it owned the land, and had a responsibility to trim the hedge.
24. Mr X said the hedge had damaged his vehicle, and implied he would submit a claim to the Council’s insurance about it.
25. On the day Mr X complained to the Council, it made an order to trim the hedge.
26. In October, the Council left Mr X a voicemail telling him the hedge would be cut.
27. Two days later, the Council sent Mr X its stage one response.
28. It said the officer Mr X had been dealing with left him a voicemail a few days earlier, explaining the Council’s current position. The Council said it owned half the width of the road, and as a sign of good will it ordered that the hedge be trimmed in September 2018. The Council said that work would be done in two to three weeks.
29. The Council said it would be happy for Mr X’s solicitor and surveyor to contact the officer Mr X had been dealing with to discuss the matter further.
30. The Council said it did not agree that this was a public right of way. The Council said the hedge did not prevent entrance or exit access, so it was not obliged to maintain it. However, it said it had requested that the hedge be trimmed.
31. A few days later, Mr X asked that his complaint be escalated to stage two.
32. Mr X said he understood that the road is a private right of way, and that all owners of land within the boundaries of the area have a duty to maintain it.
33. Mr X complained that the Council’s complaints procedure says complaints will be passed to a manager who is senior to the person being complained about. Mr X said he complained about the officer he had been dealing with. He questioned how the Council could properly investigate when the person complained about was made aware of the complaint.
34. Mr X asked the Council to confirm who owns the hedge. He said his car had been damaged by the hedge, and he would submit a claim to the Council’s insurance.
35. At the end of October, the senior manager dealing with Mr X’s stage two complaint called Mr X. The manager told Mr X the Council was getting advice from its legal team and would take some time to issue its stage two response.
36. In early November, the Council trimmed the hedge.
37. In early December, the Council sent its stage two response to Mr X. The Council apologised for the delay in sending its response.
38. The Council said Mr X’s complaint named the officer he had been dealing with, but it had interpreted Mr X’s complaint as being about the Council’s, not the officer’s, failure to maintain the hedge.
39. The Council said it got clarification from Legal Services about the title and the land. It said the Council owns part of the land that forms the road. The hedge is on one side of that. It said the deeds did not specify who was responsible for the hedge. So, the Council said the work it had done to that point was discretionary, and it was under no obligation to do this.
40. The Council said it had maintained the hedge from time to time, so it did not “unreasonably interfere” with passage along the road. It said it would continue to do some maintenance but would also keep this under review.
41. The Council said it would consider any independent advice Mr X had received.
42. The Council told Mr X to send details and supporting information of the damage to his car. It said it would pass that information to the insurance team for investigation.
43. The Council did not uphold Mr X’s complaint. It signposted him to the Ombudsman.

Analysis

Refusal to trim the hedge

44. Mr X complains that the Council refused to trim the hedge which obstructs the residents’ right of way (part a of the complaint).
45. I am satisfied that the Council trimmed the hedge in November 2018 (this is discussed further below).
46. Mr X complains that the Council changed its mind: at first saying it would not trim the hedge, then saying it would. The Council is entitled to change its mind. So, this is not fault. In this case, the Council changed its mind in favour of Mr X.
47. As stated in paragraph 11, the law says Mr X has the right to serve a notice on the Council requiring it to clear an obstruction from a road. If the Council fails to do so, Mr X can then ask the Magistrates Court to order it to do so.
48. Mr X does not agree with the Council’s statement that it is not obliged to trim the hedge. This is a legal dispute that should be dealt with in court. This is not something the Ombudsman can determine.
49. Any damages caused to vehicles passing the hedge should be dealt with through the Council’s insurance.
50. The Council says that in 2015 it became aware that it owned half the width of the road. It says it is not aware that it maintained the hedge before 2015. Since 2015, as an act of goodwill, the Council says it has trimmed the hedge annually.
51. The Council says in 2002 there was a transfer of housing stock to a housing trust. It says the ownership of the Council’s half of the road width was meant to be transferred to the housing trust at this time but for some reason was not.
52. The Council is undergoing a deed of rectification, which essentially transfers the ownership to the housing trust as it should have been in 2002. It says this process should complete in 2019. This means that the Council will no longer have responsibility for the hedge.
53. Mr X complains that the Council is very vague about when it might complete this deed of rectification. I do not find that there is a timeframe within which the Council should or must complete the deed of rectification. For this reason, I do not find fault.

Failure to trim the hedge in November 2018

54. Mr X complains that the Council said it would trim the hedge in November 2018, but has not done so (part b of the complaint).
55. Mr X disagrees that the hedge in question was trimmed in November 2018. He accepts that the Council trimmed a hedge on that date, but he says the Council trimmed the hedge that it is not responsible for.
56. I am satisfied that the evidence the Council has provided shows that the correct hedge was trimmed on this date. For this reason, I do not find fault with the Council.
57. The Council’s stage one response said it would trim the hedge within two to three weeks. The Council trimmed the hedge five weeks later. The Council says there was a delay in its contractors carrying out the work. I do not find the delay is significant enough to constitute fault. This is because the Council’s policy says it prunes hedges once a year, in the autumn and winter, which it did.

Complaint handling

58. Mr X complains that the Council passed his complaint to the person he complained about, which contravenes the Council’s complaints procedure (part d of the complaint).
59. Mr X says his complaint was about the officer he dealt with, and was surprised that the officer responded to his complaint.
60. The Council’s stage one and stage two responses were from the manager and senior manager of the relevant service. This is in line with the Council’s complaints procedure. None of the Council’s formal responses to the complaint were from the officer. So, I do not find fault here.
61. The officer called Mr X and left a voicemail, saying the hedge would be trimmed. The officer did this a few days before the Council sent its stage one response.
62. I do not find that the officer’s call to Mr X contravened the complaints procedure for two reasons. Firstly, there is nothing in the procedure that says anything about a person being complained of not contacting the complainant.
63. Secondly, and more importantly, I have seen no evidence that Mr X’s complaint was about the actions of the individual officer. It seems clear to me that the complaint was about the Council’s actions, not the individual officer’s actions.
64. So, I do not find fault with the Council for the way it handled Mr X’s complaint.

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Final decision

65. I have completed my investigation and do not uphold Mr X’s complaint. This is because I have seen no evidence of fault in the Council’s actions.

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Parts of the complaint that I did not investigate

66. Mr X complains that the Council has ignored his repeated requests to share its legal advice with him (part c of the complaint).
67. This part of Mr X’s complaint is about data protection. As such, the Information Commissioners Office is better placed to deal with complaints of this nature (see paragraph eight). I have seen no good reasons why the Ombudsman should investigate. For this reason, I have not investigated part c of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman