Summary: We will not investigate Miss X’s complaint about the Council’s maintenance of its bushes next to her garage. There is not enough evidence of Council fault to warrant us investigating. Even if there were fault, the matters complained of do not cause sufficient significant personal injustice to Miss X to justify an investigation. It would be reasonable for her to pursue any property damage claim with the Council’s insurer, then at court if required.

The complaint

1. Miss X owns a garage next to Council-owned land bordered by bushes and plants. She complains the Council:
1. has failed to cut back the bushes;
2. is not planning on cutting the bushes back this season.
2. Miss X says the overgrown bushes make it difficult for her to use her drive. She is also worried about damage to the garage roof as some parts of the bushes have grown into it. Miss X also says she ripped her coat on a bush when on her drive. She wants the Council to cut the bushes annually when they become overgrown.

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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:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

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

4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I considered information from Miss X and the Council, relevant online images of the location, and the Ombudsman’s Assessment Code.

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My assessment

7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
8. In response to Miss X’s concerns, the Council’s officers said they do not cut hedges in bird nesting season. It is done between September to March. They said hedge cutting is programmed to be done on a priority basis and also depends on the available resources and the weather or ground conditions. Due to problems with some equipment, officers advised Miss X that not all hedges may be cut this season. Officers did confirm in the final complaint response that the works will be completed within the winter period but gave no date. They explained they could not give a specific date because when the work can be done depends on unknown factors including the weather, Council resources and staffing.
9. Councils are entitled to decide where to use their funds. We are not a regulator or arbiter of where an authority prioritises its works. In making its decisions here, officers took account of the Council’s resources, how it prioritises maintenance works and the relevant limitations on it providing dates for when work will be done. There is not enough evidence of fault in the Council’s decision-making here to warrant us investigating. We recognise Miss X disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone disagrees.
10. Even if the Council’s decision-making involved fault, we will not investigate. Online images from the end of this year’s growing season show some bush stems over a narrow patch of grass next to Miss X’s garage, and a small number of longer branches across one side of the garage. The garage door is not overgrown and is accessible, as is the hard standing or driveway in front of it. We recognise Miss X may be annoyed that the foliage is closer to her garage and driveway than she may like. But there is not enough significant personal injustice caused to her by the Council’s decisions regarding the hedge maintenance and the outcome from those decisions to justify us investigating.
11. Where a plant or tree from adjacent land is overhanging or overgrowing other property, the affected land’s owner may seek to remove the overgrowing parts of the foliage. If this is an option Miss X wishes to take to reduce the impact from the uncut bushes or plants, she should ask the Council’s permission first. She should also offer any cuttings back to the Council.
12. Miss X has provided photographs of her garage’s interior, with some plant stems visible in the roof. She says these grew in from the Council’s land. She is concerned about damage caused to the garage. If Miss X considers the Council’s plants are responsible for damaging any of her property because they have not been maintained, this would be a property damage matter. It would be a claim that the Council’s negligence makes it legally liable for damage caused by its plants. Miss X may wish to make this claim against the Council’s insurers. The Council has provided information to allow her to make a claim. If the insurers reject the claim, it would then be a matter only a court could decide. It would be reasonable for Miss X to make an insurance claim or take the matter to court if required. This is because only insurers or the courts are qualified to decide claims of legal liability or negligence. We cannot make findings on such legal questions. The courts can also issue rulings which are binding on the parties, whereas we can only make recommendations.

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Final decision

13. We will not investigate Miss X’s complaint because:

• there is not enough evidence of fault in the Council’s decision-making to warrant us investigating; and
• even if there were such fault, the matters complained of do not cause sufficient significant personal injustice to her to justify an investigation; and
• it would be reasonable for her to pursue any property damage claim with the Council’s insurer, then to the courts if required.

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Investigator's decision on behalf of the Ombudsman