Summary: Ms X complained about the Council’s failure to deal with her high hedge complaint. We found the Council at fault in handling Ms X’s case and its avoidable delay and poor communication, including about its decision making, caused Ms X injustice. To put matters rights, the Council agreed to apologise and pay Ms X £300 in recognition of her frustration, uncertainty and unnecessary time and trouble. The Council also agreed to review its high hedge procedures.

The complaint

1. Ms X said the Council failed for over a year to deal with her report of a high hedge reducing light to her home. And, when it finally acted, it went back on its offer to waive the application fee of £450, which offer it made because of its delays.
2. Ms X said the delays led to her living in the shadow of the high hedge for an added two years. And the Council’s neglect and incompetence caused avoidable distress and put her to a lot of time and trouble chasing for information about progress with her case. Ms X wanted the Council to issue a remedial notice and deal with the high hedge.

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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. If we are satisfied with an organisation’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

5. I:

• considered Ms X’s written complaint and supporting papers;
• talked to Ms X about the complaint;
• asked for and considered the Council’s comments and supporting papers about the complaint;
• shared the Council’s comments with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.

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What I found

Background

6. Councils have legal powers to decide peoples’ complaints about neighbouring high hedges interfering with the reasonable enjoyment of their home. A ‘high hedge’ is a barrier to light or access formed wholly or mainly by a line of two or more evergreen or semi-evergreen trees or shrubs more than two metres high. A line of semi/evergreens will not form a barrier to light or access if it has gaps that significantly affect its overall effect as such a barrier. People must try to resolve any high hedge problem with their neighbour before complaining to their council. Councils usually charge a fee to deal with a high hedge complaint. Dorset Council charges £450 for its high hedge service.
7. The Government produced guidance for councils about how they should handle high hedge complaints. The ‘High Hedges Complaints: Prevention and Cure’ guidance says councils “act as an independent and impartial third party” and do not “negotiate or mediate between individuals”. The guidance also says it is good practice for councils to give the complainant the name and contact details of the officers that will deal with their complaint. And councils should write to the complainant and neighbour briefly explaining the procedure they will follow to decide the complaint.
8. Having received a valid high hedge complaint, councils must decide:
• whether the hedge is, because of its height, adversely affecting the complainant’s reasonable enjoyment of their property; and
• (on finding it is), what action, if any, is necessary to deal with the problem and prevent it from recurring.

The guidance advises councils to keep a clear record of how they reach their decision. And if the decision on either point goes against the complainant, councils must quickly tell them and give reasons for the decision. The complainant then generally has 28 days to appeal the decision to the independent Planning Inspectorate.

9. If councils decide to act on a problem hedge, they must, as quickly as reasonably practicable, issue a remedial notice to the complainant and the neighbour. Councils must also give both parties reasons for their decision. A remedial notice applies to the land and so remains in force if the neighbour sells the property. The remedial notice will set out the steps the neighbour needs to take, and by when, to deal with the light/access problems caused by the high hedge. A remedial notice may also set out steps to prevent the problem recurring in the future. Both the complainant and neighbour generally have 28 days to appeal against a remedial notice to the Planning Inspectorate.
10. The law sets no time limit for considering high hedge complaints. The guidance says this provides flexibility and allows other ways of resolving matters even after a formal complaint is made to a council.

What happened

11. In summer 2019, Ms X approached the Council about her neighbour’s (‘N’) nearby evergreen trees, which reduced light to her home. Ms X said a Council officer from the planning department arranged to visit her home but later cancelled the appointment saying the Council was reorganising its services. At the end of the year, Ms X contacted another officer (‘Officer T’) and, in early January 2020, submitted a high hedge complaint form and a cheque for £450. The Council said it did not register Ms X’s complaint as either an enforcement or tree case. However, its Officer T made a diary entry to visit Ms X in early March 2020. Ms X recalled a visit in early 2020 when Officer T told her N’s trees compromised light to her home.
12. In late March 2020, the Government introduced COVID-19 restrictions. The Council provided copy emails sent to its officers in late March and May 2020 about working arrangements while the restrictions were in place. The Council said most of its officers were working from home with limited access to its offices and ‘hard copy’ files. And, from 26 March 2020, the Council asked that officers, “please avoid carrying out site visits…for the time being…” (unless approved by senior managers for urgent cases). The Council said COVID-19 affected its services. And, between January and June 2020 it was restructuring its planning department. It also had staff absences and vacancies during 2020 and 2021.
13. Ms X said after about six months, she telephoned the Council seeking an update and an officer apologised for the delay and said another officer would take on the case. Ms X said, during a further telephone call about a month later, a Council officer again apologised for the delay and told her it would waive the £450 fee for her case. (The Council did not cash Ms X’s January 2020 cheque for £450 and says it told Ms X she would need to pay the fee once it acted on her complaint.)
14. In early January 2021, the Council contacted N saying it had received a high hedge complaint and Officer T had recently viewed N’s trees. The Council said, “the next step would be to serve an enforcement notice requiring the trees to be reduced in height.” However, Officer T would meet with N to try to resolve matters without formal action. About three weeks later, Officer T met N on site and discussed possible tree works aimed at increasing light to Ms X’s home.
15. N’s legal representative then contacted the Council asking about the high hedge complaint and sent a chaser email in late February 2021. Officer T replied in early March saying the Council was awaiting N’s views on tree work proposals discussed in January. Officer T sent a chaser email to the legal representative in early April and told Ms X the Council was following up her complaint.
16. In May 2021, after Ms X asked Officer T for an update, the Council chased N’s legal representative for comments on the proposed tree works. By mid-June, the Council was in touch with N, but N had not agreed any tree works. The Council then told Ms X it would ‘pick up on substantive matters’ once Officer T returned from leave.
17. In mid-July 2021, Ms X contacted the Council asking about progress. The Council said it was ‘satisfied Officer T was progressing the case’ but staff vacancies meant it would prioritise statutory cases for the next month. The Council said high hedge cases were “generally complex and time consuming”; often took years rather than months; and it had other “equally challenging” cases. The Council said Officer T had apologised for earlier delays and spent considerable time on Ms X’s case. In reply, Ms X said her case had already taken two years during which she felt “side lined” and contact with the Council made her feel like a “nuisance”.
18. Officer T then emailed Ms X saying the Council was seeking legal advice as N did not agree the trees were a ‘high hedge’. Officer T said the Council would then decide whether to issue a remedial notice. And, if it did, Ms X would need to pay its £450 service fee. Officer T also said there would be no significant progress for the next month due to staff vacancies.
19. In late July 2021, Ms X emailed the Council’s Chief Executive to complain about its handling of her high hedge case. Ms X described what had happened as “a disgrace [and] a catalogue of negligence and inattentiveness”. Ms X said the Council needed to resolve her case. Ms X also said the Council had agreed to waive its £450 fee given its delays and so should not now be asking for payment.
20. The Council replied in early October 2021, apologising for its delay in responding. The Council recognised Ms X’s frustration with the time taken to progress her high hedge case but said its tree team was facing significant work pressures. The Council said staff absences meant it had to prioritise work on tree preservation order cases. However, it would confirm its next steps on Ms X’s case by the end of October and, if Ms X wanted to continue with her case, she had to had to pay the £450 fee.
21. Ms X told the Council its response was “wholly unsatisfactory”. Ms X said Officer T had both waived the £450 fee and accepted N’s trees deprived her home of light but made no progress after two years. The Council told Ms X it could not add to its response and signposted her to the Ombudsman.
22. Meanwhile, the Council’s tree team told Ms X that Officer T would soon speak to N. When next seeking information, the Council told Ms X that Officer T was on sick leave and had not yet spoken to N. The Council told Ms X that Officer T would get in touch once back at work.
23. At the end of October 2021, Officer T emailed N seeking a meeting to resolve matters. Officer T also emailed Ms X about the proposed meeting.
24. On chasing for an update in mid-November, the Council told Ms X that Officer T would meet with N later that week. Ms X sent another chaser email at end of November. The Council acknowledged the email.
25. About three weeks later, the Council agreed N’s proposals for works to the trees near Ms X’s home. The Council asked N to confirm completion of the works. The Council’s records showed it considered the trees would no longer meet the legal definition of a ‘high hedge’ (see paragraph 6) on completion of the works.
26. Meanwhile, Ms X had brought her complaint to the Ombudsman. Ms X said she had repeatedly telephoned the Council about the high hedge and visited its offices, but it had completely failed to provide a service. Ms X said the Council needed to issue a remedial notice and resolve the high hedge problem.
27. In responding to the Ombudsman, the Council said Officer T had recently visited the site. The Council said recent works had reduced the height of the evergreen closest to Ms X’s home and separated the crowns of N’s trees. The Council said the trees no longer met the legal definition of a ‘high hedge’ (see paragraph 6). The Council provided a copy of its email to Ms X that summarised the recent tree work and said N’s trees no longer met the legal definition for a ‘high hedge. The Council’s email said it would therefore take no further action on Ms X’s high hedge complaint. Ms X said the recent works had not resolved the problem and she continued to live in the shadow of N’s high hedge.

Consideration

Communication and time

28. Ms X first contacted the Council about her high hedge complaint in mid-2019 but did not make a formal high hedge complaint until January 2020. The Council appears to have closed Ms X’s case in February 2022. This is a long time. I recognise what the Council says about COVID-19 restrictions during this time and that it faced work pressures and staff shortages. However, when responding to emergencies and prioritising specific work, councils still need to plan for and provide fair and appropriate services for all residents. And good administrative practice requires councils to communicate clearly and effectively with residents about the impact of prioritising specific work during an emergency. Councils should also have measures in place to manage long term staff absences and vacancies.
29. The Council said it emailed Ms X eight times during 2021 but acknowledged it did not meet its response targets in communicating with her. The written evidence showed Ms X usually initiated email contact seeking updates on her case rather than the Council actively keeping in touch.
30. It is also clear that several telephone calls took place between Ms X and the Council. However, there are no records of these calls, including that about the disputed cancellation of the £450 complaint fee (see paragraphs 13 and 18 to 21). The cancellation, or not, of the fee was a significant matter and good administrative practice required a record of the outcome and its written confirmation to Ms X.
31. Overall, I found significant avoidable delay amounting to fault in the Council’s handling of Ms X’s case. The Council’s communication with Ms X also fell below acceptable administrative standards. I found the delay and poor communication would likely have been frustrating for Ms X. And Ms X was put to avoidable time and trouble in chasing the Council for action and information about her case.
32. In responding to us, the Council explained what it would do to improve communication with residents about high hedge issues. This included identifying a senior tree officer as its main contact for high hedge cases to ensure consistency in complaint handling. The Council also said it would prepare a ‘high hedge complaints protocol’ and produce internal procedure guidance to clarify officers’ responsibilities. The Council said it would also update its website to improve the information available to residents. I thank the Council for recognising the need for improvements and setting out its proposals for change.

The high hedge

33. Ms X understood the Council had accepted N’s hedge was a problem when Officer T visited her home in early 2020. I saw no contemporaneous record of this visit or supporting evidence about what was said. However, the Council’s January 2021 email to N (see paragraph 14) provided evidence it decided Ms Xs’ case did concern a problem high hedge needing action. However, I saw no evidence the Council wrote to Ms X to tell her of this decision and the reasons for it (see paragraph 9).
34. It was not fault for the Council to seek to resolve the hedge problem without issuing a remedial notice. However, councils should issue remedial notices ‘as soon as reasonably practicable’ once they decide a high hedge is a problem needing action. Good administrative practice required the Council to set time limits for any informal resolution. This did not happen. Ms X’s case drifted for a year and without the issue of a remedial notice. As well as the delay, not issuing a remedial notice denied Ms X the opportunity to appeal the Council’s decision, including about the work needed to resolve the problem (see paragraph 9).
35. The high hedge work carried out in February 2022 differed from that proposed by the Council in January 2021. The Council’s proposal was for the removal of one tree and works to the others forming the high hedge. The work carried out, which N proposed in late 2021, reduced the height of one tree and separated the crowns of the trees forming the high hedge. The evidence showed the Council considered that, after N carried out the work, the trees would no longer meet the legal definition of a ‘high hedge’ (see paragraph 6). (The Council has since confirmed this (see paragraph 27).)
36. The evidence showed the Council had told Ms X about its proposals for tree work in April 2021, which it expected N would carry out. I saw no evidence the Council told Ms X it had changed its position in late 2021 and agreed alternative works that would mean the trees no longer formed a high hedge. That position suggests the Council had decided it would not issue a remedial notice. If it had told Ms X of that decision, she would have had a right of appeal (see paragraph 8). However, the position the Council has now reached, that no ‘high hedge’ exists because of gaps between the trees, means Ms X has no appeal rights. As trees grow, and without a preventative remedial notice, Ms X may face further problems in the future and need to make another high hedge complaint.
37. If the Council had told Ms X it would not issue a remedial notice, I had no reason to doubt she would have used her appeal rights. Ms X would also likely have appealed any remedial notice that did not propose removal and or a height reduction to the trees and preventative measures. While I could not know the outcome of such appeals, there was uncertainty here.
38. Overall, I found the Council at fault in not keeping records of its decisions and reasons for them and failing to give Ms X notice of those decisions and her appeal rights. I also found these faults caused Ms X injustice.

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Agreed action

39. I found fault causing injustice. To put matters right, the Council agreed, within 30 working days of the date of this statement, to:

• send Ms X a written apology for its avoidable delay, poor communication and denying her any opportunity to appeal its decisions; and
• pay Ms X £300 in recognition of her avoidable time and trouble, frustration, and uncertainty over her statutory appeal rights.

40. The Council also agreed, within three months of the date of this statement, to review its handling of high hedge cases to improve its:

• internal procedures, including record keeping, and guidance available to officers; and
• communication with residents and the information available to them on its website,

to ensure it properly considers high hedge complaints without avoidable delay.

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Final decision

41. I completed my investigation, finding fault causing injustice, on the Council agreeing the recommendations at paragraphs 39 and 40.

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Investigator's decision on behalf of the Ombudsman