Summary: Mr X complained about the Council’s failure to deal with his neighbour’s high hedge. The Council was at fault for avoidable delay and poor communication. The Council will apologise to Mr X and pay him £100 for the frustration and additional time and trouble caused. The Council will reconsider whether further action is needed to address the high hedge and review its processes.

The complaint

1. Mr X complained the Council did not act following his neighbour’s failure to comply with a high hedges remedial notice. Mr X also said the Council failed to respond to his communications. He said he was put to additional time and trouble to contact the Council and the light to his garden has been blocked.

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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 an organisation’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 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 spoke to Mr X about his complaint and considered the information he provided.
6. I considered the Council’s comments about the complaint and the supporting documents it provided.
7. I considered the Council’s policies and relevant law and guidance.
8. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments I received before making a final decision.

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What I found

Relevant law and guidance

9. The law giving councils powers to deal with complaints about high hedges is found in Part 8 of the Anti-Social Behaviour Act 2003 and associated regulations and guidance.
10. These say a person can ask a council to issue a remedial notice requiring a hedge owner to cut and maintain a hedge below a maximum height if the hedge:
• consists of two or more trees or shrubs in a line;
• consists or is mostly of evergreen or semi-evergreen species;
• is over 2 metres in height; and
• as a result of its height is acting as a barrier to light such that a person's reasonable enjoyment of their property is being adversely affected;
11. A council may, if it considers the circumstances justify it, issue a remedial notice requiring the owner of the hedge to remedy the situation.
12. If a remedial notice is issued and the hedge owner fails to reduce the hedge to or below the maximum permitted height, the council can informally ask the hedge owner to act or take enforcement action, including prosecution in the Magistrates Court. The council can also consider carrying out remedial work itself and charging the landowner for this. The decision whether to take enforcement action is discretionary. There is non-statutory guidance for councils to help them decide whether formal action is appropriate, which suggests councils develop a set of priorities to help them determine which cases to enforce.

Complaints handling

13. The Council has a three stage complaints process. Its policy says it will attempt to resolve the problem as soon as it is made aware of it, if that is not possible it will proceed to stage one. At stage one, the relevant directorate will respond within 15 working days. At stage two, an independent officer will respond within 20 working days.

What happened

14. Mr X and his neighbour, Mr Y, share a 40 metres long boundary hedge.
15. In 2012 the Council issued a high hedge remedial notice to Mr Y. The notice says after 24 months the height of the hedge should not exceed 7.2 metres.
16. In mid-October 2020 Mr X contacted the Council and asked it to inspect the hedge. Mr X said the hedge was last cut in 2012 and exceeded 7.2 metres.
17. In late 2020 a Council officer inspected the hedge and took initial measurements. In November and December 2020 a Council officer emailed and called Mr Y about the hedge on multiple occasions but did not receive a response
18. In mid-January 2021 a Council’s officer wrote to Mr Y to say:
• the hedge measured between 10.8 metres and 11.9 metres in height;
• the hedge height should be reduced to 7.2 metres or lower within 28 days, otherwise the Council would take formal action which may result in prosecution through the Magistrates Court.

At the same time the Council’s updated Mr X.

19. Between the end of January 2021 and mid-February 2021 Mr X emailed the Council to inform it Mr Y had been seriously ill. Mr Y said he wanted the hedge to be cut from Mr X’s land and Mr X agreed to this.
20. In mid-February 2021, the Council confirmed it had not had a response from Mr Y and would notify him that it was now involving its legal team with a view to starting legal action.
21. In mid-March 2021 Mr X made a formal complaint to the Council for the failure to enforce the remedial notice. The Council did not respond. Mr X also complained three times to a senior officer at the Council. In error, the senior officer asked a community team to respond to Mr X but the matter was outside the remit for that team.
22. In May 2021 a Council officer emailed Mr X and apologised for the delay, which was due to the pandemic and increased workload. They confirmed they had still not had a response from Mr Y and the case was being considered by the legal team.
23. In mid-May 2021, the Council’s legal team said it could not consider legal action because further investigation was needed before it could decide whether that was appropriate. The records suggest the officer had not considered the pros and cons of the various options available, nor had they addressed whether prosecution was in the public interest, given Mr Y’s illness. The legal team said the officer should investigate further and resubmit a report addressing all relevant issues. At this stage the Council did write to Mr X to set out the possible options, including prosecution or taking no further action.
24. In late June 2021, the officer told Mr X he would reconsider the evidence and would contact Mr Y again. The records indicate that a prosecution was not pursued after that but the Council did not tell Mr X it had changed its approach and explain its reasons for doing so.
25. In July 2021 Mr X had not received a response from the Council and made a further complaint. Although he sent several chaser emails, he did not receive a response.
26. At the end of August 2021, Mr X reported that Mr Y had cut the part of the hedge, although it was still more than 7.2 metres in height. He asked the Council to inspect the hedge but the Council did not respond so he complained to the Ombudsman.
27. The Council said in its response to my enquiries, Mr X had informed it that work had begun on cutting the hedge and on that basis it would take no further action. Mr X disputes this account. I have seen no evidence it carried out a site visit before deciding no further action was needed.
28. In response to the draft decision, the Council said it could not get responses from Mr Y. It also highlighted the events complained about were during the COVID-19 pandemic. I acknowledge councils were under additional pressure due to COVID-19 restrictions, the need to respond to COVID-19 challenges, and staff shortages. I have taken this into account when reaching my findings.

My findings

Enforcement

29. After receiving the complaint about the hedge, a Council officer visited the site and confirmed the remedial notice had not been complied with. Initially the Council tried to resolve the matter informally with Mr Y, which is in line with Government guidance. There was no fault at this stage.
30. In February 2021 a Council officer informed Mr X he would start legal proceedings and contact the Council’s legal department. At that stage, a prosecution was not formally authorised, so this unreasonably raised Mr X’s expectations and was fault.
31. I have seen no record the Council progressed the case between February and early May 2021. Whilst it may have been waiting for Mr Y to respond it did not communicate this to Mr X. This was fault.
32. In May 2021 the Council’s legal department said it would not consider taking legal action at that time. It said further investigation was needed before a decision could be made that prosecution was appropriate. The records show a number of aspects had not been considered, including whether prosecution was in the public interest. The records suggest the officer was not aware of the relevant issues to consider. It was agreed further work would be done and the case resubmitted to the legal team. This was not done. Instead, the officer tried again to resolve the matter informally but did not tell Mr X of the change of approach. This was fault.
33. In late August 2021, Mr X told the Council that part of the hedge had been cut. On this basis, the Council decided to take no further action. There is no evidence it carried out a site visit to inform that decision, despite Mr X saying the remedial notice had still not been complied with. This was further fault.

Communication

34. There was no further communication with Mr X from June 2021 onwards and the Council did not respond to his complaints. This was fault.

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Agreed action

35. Within one month of the final decision the Council will:
• apologise to Mr X and pay him £100 for the frustration and avoidable time and trouble he was put to as a result of the faults identified in this decision;
• carry out a site visit and reconsider whether further action should be taken in respect of the hedge, providing its decision in writing to Mr X; and
• remind relevant staff about the need to ensure complaints are responded to in line with its complaints policy and consider whether its corporate complaints team should have an overview of all complaints at stage one to ensure the complaints policy is complied with.
36. Within three months of the final decision the Council will:
• review its process in dealing with high hedge complaints to ensure it is clear what action should be taken and what issues should be considered, particularly where there is non-compliance with a remedial order and a decision is needed about whether enforcement action is needed;
• consider developing an information sheet so complainants know what to expect and the factors the Council will consider; and
• provide staff training or guidance, as needed, to ensure all relevant staff are aware of the process and any changes made to it as a result of the review.

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Final decision

37. I have completed my investigation, finding fault causing injustice. I have recommended actions to remedy the injustice and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman