Summary: Mrs D, Mr E and Mr F (the Complainants) say over the last five years the Council has failed to properly investigate their complaint about their neighbours’ overgrown trees. We found the Council failed to consider and apply the correct statutory framework for these types of complaints. There was also fault in the Council’s complaint handling. These failings meant the Council has not provided an outcome which either puts right the alleged problem right or provides the Complainants with a right of appeal to the Planning Inspectorate. The Complainants have been put to unnecessary time and trouble in pursuing this and suffered a degree of distress and uncertainty. The Council has agreed to our recommendations to remedy the injustice.

The complaint

1. The Complainants are three neighbours who occupy adjoining properties (I refer to them as Mrs D, Mr E and Mr F). They are making a joint complaint about another neighbour’s trees which they say are overshadowing their properties as they are overgrown and poorly maintained. The complainants say they have made a formal high hedge complaint to the Council which they say failed to properly investigate and act against the neighbour to remedy the problem.
2. The Complainants say the height of the hedge obstructs the light in their property which impacts the enjoyment of their gardens. The Complainants want the Council to take action against their neighbour’s hedge so it is maintained.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
6. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended).
7. The Planning Inspector acts on behalf of the responsible Government minister. The Planning Inspector considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

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How I considered this complaint

8. I have read the Complainant’s complaint to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also had regard to applicable legislation, guidance and policy. I provided the Complainants and Council with a draft of my decision and invited their comments. The comments received were taken into account before my decision was made.

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My findings

Background and legislative framework

The Council’s role and powers

9. The law giving local councils with powers to deal with complaints about high hedges is contained in Part 8 of the Anti-Social Behaviour Act 2003 (“the 2003 Act”). This makes provision for local councils to determine complaints by the owners/occupiers of domestic property adversely affected by evergreen hedges. The Government has also issued statutory guidance.
10. The Act and guidance define what a high hedge is, explains how councils should handle complaints about a high hedge, and how it should investigate and assess the impact. A council may issue a remedial notice telling the hedge owner what action they must take. If the owner does not take the action this enforced in various ways.
11. Both the person complaining about the high hedge and the owner of the hedge have appeal rights to the Planning Inspectorate. Because of this and the restriction on my investigations mentioned above, I cannot investigate how a council takes decisions under this legislation

Anti-social behaviour

12. Anti-social behaviour is defined in law at s2 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act) as:
1. conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
2. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
3. conduct capable of causing housing related nuisance or annoyance to any person.
13. There are a range of powers councils can use in response to anti-social behaviour. This includes the power to issue a Community Protection Notice (CPN) which can be issued by both councils and the police. A CPN should explain what the recipient needs to do to avoid causing or continuing to cause anti-social behaviour. CPNs can run indefinitely, and failure to comply is an offence, which can lead to prosecution and a fine.

Chronology of events

14. In October 2017, the Complainants made a High Hedge Complaint to the Council about the overgrown evergreen located at their neighbour’s property. In response, the Council carried out a site visit and took the photographs of the trees from the rear garden of Mrs D’s property.
15. In November 2017, the Council decided overgrown trees fell within the remit of anti-social behavior. The Council issued a CPN against the owner under s43 of the 2014 Act.
16. In December 2017, the Council carried out a further site visit to visually inspect the trees from the rear garden of Mrs D’s property. Again, photographs were taken of the trees. The Council said the trees had been trimmed to reduce the height of the trees, though were not cut back fully to the Complainant’s satisfaction.
17. In February 2018, the Council issued a second CPN to the landowner to reduce the height of the trees. In April 2018, the Council carried out a further site visit to visually inspect the trees from the rear garden of Mrs D’s property and in May 2018, the Council issued a further notice to the landowner as a result of their non-compliance with the CPN.
18. In January 2019, the Council issued a third CPN to the landowner to reduce the height of the trees. In October 2019, the Council issued a fourth CPN to the landowner to reduce the height of the trees.
19. In February 2020, the Council planned to prosecute the landowner for non-compliance with the CPN issued in October 2019. However, the Council found the CPN was defective, and a Community Protection Warning had not been given to the landowner prior to the CPN being issued. In March 2020 the Council now decided the matter was a private right to light dispute which the complainants would need to pursue through the courts.
20. In December 2021 the Complainants made a Stage One complaint. The Council upheld the complaint and noted that the High Hedge Complaint should have been passed to the Council’s Planning Enforcement team and not its Neighborhoods’ team which deals with issues of antisocial behaviour. The Council said the matter had now been passed to its Neighborhoods’ team. However, the Council failed to register the complainant’s case and no follow up action was taken to progress their issues.
21. In June 2022, the Complainants made a formal Stage Two complaint to the Council. The Council again upheld the complaint and noted that communication with the complainants regarding its remit and powers and the responsibility for leading on taking action could have been clearer overall. It also accepted the Council had raised the complainant’s expectations that it would take action which never happened.
22. The Council then gave the Complainant’s information relating to the high hedge’s complaints procedure. It said the Complainants would first need to demonstrate that they have taken all reasonable steps themselves and notified the owner of the trees and not come to a resolution. The Council also said there would be a fee of £505 to be paid by each complainant to consider the issues and provide a decision. It also explained that due to pressures on the service, the High Hedge Complaint would not be worked on due to the Council prioritising other cases.
23. In July 2022, the Complainant brought their complaint to the Ombudsman due to not being satisfied with the Council’s handling of their complaint.
24. In response to my formal investigation enquiries to the Council, it has confirmed it has now started the process of considering the High Hedge Complaint. It is in still in the process of gathering information and so a decision on any required action is yet to be made. The Council has however offered a number of remedies to acknowledge the problems faced by the Complainants in bringing their High Hedge Complaint.

My assessment

Time limits and jurisdiction

25. As mentioned above I cannot investigate any complaint made more than 12 months from the alleged fault occurring, unless there are good reasons for me to exercise discretion. The key part of this complaint relates to the Complainants making their high hedge complaint in October 2017. The Complainants brought their complaint to us in July 2022 (57 months since initial the alleged fault occurred). The Council’s failure to deal with the matter properly has continued for some time. The Complainant’s kept expecting the action the Council was, mistakenly, taking to resolve the problem. So I have exercised my discretion to investigate from October 2017 to present day.

Fault

26. The Council should have considered Mrs D, Mr E and Mr F complaint about the high hedge under the 2003 Act. It did not, but took action using its anti-social behaviour powers. This was fault.
27. The Council was also at fault when it fault when it fail to take the action promised in its Stage One complaint response.

Injustice

28. The Council has not yet decided what action, if any, to take about the hedge. So we cannot know what would have happened had the Council originally taken action under the High Hedge legislation. If the Complainants were unhappy with the action they could have appealed to the Planning Inspector and would have had a resolution sooner.
29. As a result of the fault the Complainants suffered the injustice of living with the uncertainty of not knowing if anything could be done about the impact of the hedge for some time. This was made worse by the legitimate expectation the Council created that their concerns were founded and would be resolved through enforcement action.

Remedy

30. In response to my enquiries the Council proposed the following to remedy the injustice to the Complainants:
1. Waive the £505 fee applicable to make consider and reach an informed decision about the high hedge complaint. The fee is applicable to all three complainants and so amounts £1,515 in total.
2. Offer £500 to each Complainant in recognition of their time and trouble in pursuing this matter with the Council.
31. I welcome the Council’s proactive stance and I consider this is a suitable personal remedy for the complaints.
32. My investigation found the Council’s team for dealing with high hedge complaints is under resourced and it is not investigating complaints which it considers are not priority cases, despite requiring payment of the fee. I have recommended the Council take action to deal with this.

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Agreed action

33. Within one month of the date of this decision the Council will:
1. Provide individual written apologies to Mrs D, Mr E and Mr F which acknowledge each area of fault and injustice identified in this statement.
2. Waive the applicable fees (£505 per complainant) for dealing with the complainants’ High Hedge Complaint.
3. Pay Mrs D, Mr E and Mr F £500 each to serve as an acknowledgement of the injustice they have individually suffered.
34. Within three months of the date of this decision, the Council will provide guidance and training to ensure high hedge complaints are allocated to the correct team.
35. The Council will undertake a detailed written review into the failings identified in this statement. In in doing so, the review should outline the number of high hedge complaints the Council has received over the last three years and the average time taken starting action and issuing a remedial notice. It should produce a plan for dealing with any identified delays.
36. The Council will provide us with evidence (including the written review and plan) it has complied with the above actions.

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Final decision

37. The complaint is upheld. I found the Council failed to consider and apply the correct statutory framework for these types of complaints and exercise powers to provide an effective remedy. There was also fault in the Council’s complaint handling. These failings meant the Council has not provided an outcome which either remedies the alleged problem or provides the Complainants with a right of appeal to the Planning Inspectorate. These problems have been ongoing for over five years which has meant considerable time and trouble for the complainants. They have also suffered a degree of distress and uncertainty.

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Investigator's decision on behalf of the Ombudsman