Summary: We will not investigate Mrs X’s complaint about the Council not maintaining or taking responsibility for several tall conifer trees in a hedge on land near her property. Investigation would not allow us to make a legal finding on ownership of the land and trees. Mrs X can apply to the Council under high hedge law to pursue the matter. If dissatisfied with the outcome, she would have an appeal to the Planning Inspectorate, which it would be reasonable for her to use. The complaint is also late and there are no good reasons for us to investigate now, and we cannot determine the claimed injustices were caused by Council action or inaction.

The complaint

1. Mrs X lives in a property with a strip of land between the end of a nearby road and her rear garden boundary. There are several tall conifer trees on the land forming a hedge. Mrs X complains the Council has:
1. failed to maintain the hedge on the land at two metres in height;
2. refused to accept responsibility for the trees;
3. given inconsistent responses to the issue of the land’s ownership.
2. Mrs X says the trees block light to her house and garden, seriously affecting her family’s enjoyment of their home and its value. She says she has been caused trouble and spent time corresponding with the Council and other parties on the matter since 2017. Mrs X says the matter is affecting her and her family’s mental health and wellbeing. She wants the Council to take responsibility for the trees and reduce them to two metres in height.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• further investigation would not lead to a different outcome; or
• it would be reasonable for the person to ask for a council review or appeal; or
• any fault has not caused injustice to the person who complained.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)
5. The Planning Inspectorate acts on behalf of the responsible Government minister. The Inspectorate considers appeals about council decisions on high hedge cases.
6. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

7. I considered information from Mrs X, online images and maps, relevant legislation and guidance, and the Ombudsman’s Assessment Code.

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My assessment

8. The core of Mrs X’s complaint is about the impact of a high hedge on her property. Mrs X considers the Council bears responsibility for the maintenance of the land and its trees. She has gathered evidence to indicate other parties do not own the land. The Council may have given different responses about the land’s ownership to Mrs X during the last six years during her complaints. But its latest response in September 2022 states the Council denies ownership of the land. Other people or bodies denying ownership of the land does not mean the land and responsibility for its maintenance defaults to the Council. The core question of the land’s ownership remains disputed. We cannot make a ruling or determination on legal issues such as land ownership so further investigation would not lead to a different outcome.
9. In any event, Part 8 of the Anti-Social Behaviour Act 2003 provides the appropriate route for Mrs X to pursue a resolution here. The Act allows her to seek a remedial notice to be served by the Council regarding the hedge. The process does not require Mrs X to know the hedge’s owner. She may make the application to the Council on payment of the relevant fee. It would then be for its officers to determine how the application should proceed, which would include deciding on which party any remedial notice needs to be served. Mrs X’s option to make this application amounts to a request to the Council to review the core high hedge complaint issue, so we will not investigate it.
10. If Mrs X makes an application and is dissatisfied with the outcome, she would have a right of appeal against the Council’s decision to the Planning Inspectorate. Should this situation arise, it would be reasonable for Mrs X to use that formal route to challenge that decision. This is because the Inspectorate is the body charged by national government to deal with and determine such appeals.
11. We have considered whether it was fault for the Council not to tell Mrs X of her options under the Anti-Social Behaviour Act 2003. It would have been best practice for the Council to have told Mrs X, but not doing so did not amount to fault. The information about the 2003 Act is readily available, on national government and the Council’s own websites. Mrs X could have protected her position and acted in her own interests by seeking information or advice about her options much sooner. This would have significantly reduced or removed the need for prolonged correspondence with the Council on the matter.
12. We also expect people to complain to us within 12 months of them becoming aware of an issue they believe is the fault of their council. Otherwise, the complaint is a late one and we would only investigate if there are good reasons to do so now. Mrs X knew about the issue of the trees complained of at least five years ago so the complaint is late. There are no good reasons to investigate it now because of Mrs X’s ongoing option to seek a remedial notice to be served by the Council under the 2003 Act, which provides her with the appropriate formal route to pursue the core matter.
13. Mrs X says the trees affect the light levels reaching her property. But Mrs X bought her property when the trees were already over nine metres tall. Her purchase meant she implicitly accepted the hedge was well over the two-metre height to which she now wants it reduced. We cannot make a finding that the injustice Mrs X claims from the impact of the trees now on her house and garden stems directly from an action or inaction by the Council.

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Final decision

14. We will not investigate Mrs X’s complaint because:
• investigation would not allow us to make a legal finding on ownership of the land and trees complained of; and
• an application to the Council under the Anti-Social Behaviour Act 2003 amounts to a request to the Council to review the core high hedge issue; and
• if she disagrees with the Council’s decision on her application, she has a right of appeal to the Planning Inspectorate which it would be reasonable for her to use; and
• the complaint is late and there are no good reasons for us to investigate it now; and
• we cannot determine the claimed injustices from the matters complained of were caused by Council action or inaction.

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Investigator's decision on behalf of the Ombudsman