Summary: We found no fault on Mr and Mrs D’s complaint about the Council’s decision to take no action on their high hedge complaint about their neighbours’ trees, which they said impacted on their amenities. The Council properly considered their complaint.

The complaint

1. Mr and Mrs D complain about the Council’s:
1. decision to take no action on their high hedge complaint about their neighbour’s tall trees along a boundary; and
2. poor communication and delay dealing with it.
2. As a result, they are frustrated as these trees impact on their amenities.

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The Ombudsman’s role and powers

3. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

The Council’s role and powers

7. Part 8 of the Anti-Social Behaviour Act 2003 (the 2003 Act) allows local councils to deal with complaints about high hedges. Councils can decide complaints by the owners/occupiers of domestic properties where it is claimed the reasonable enjoyment of the property is adversely affected by the height of a high hedge on land owned by someone else.
8. Section 66 states a high hedge means so much of a barrier to light or access as:
1. is formed wholly or predominantly by a line of two or more evergreens; and
2. rises to a height of more than two metres above ground level.
9. It also states a line of evergreens is, ‘not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.’ (Section 66 (2) of the 2003 Act)
10. Evergreen means an evergreen tree or shrub or a semi-evergreen tree or shrub.
11. The Government issued statutory guidance (‘High Hedges: complaining to the council’: 18 August 2017). This states:

• Semi-evergreen means a tree or shrub which keeps some live or green leaves all year round.
• What is ‘capable of obstructing light or access (even if there are gaps)’ is a matter of officer judgement as to whether a hedge meets this test. The key question is, ‘To what extend does the hedge block light or views, even if there are gaps in the greenery or between the trees or shrubs.’
• There are no fixed rules on the size of gaps.
• There is no set deadline for the council to decide the complaint.
• Both the person complaining about the high hedge and the owner of the hedge have appeal rights to the Planning Inspectorate.

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What I have and have not investigated

12. I investigated this complaint because the Council made no formal decision on Mr and Mrs D’s complaint about high hedges. Had it done so, they would have had the right to appeal the decision to the Planning Inspectorate which would have meant the complaint was not within our jurisdiction.

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How I considered this complaint

13. I considered all the information Mr and Mrs D sent, the notes I made of my telephone conversation with Mrs D, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr and Mrs D and the Council. I considered their responses.

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What I found

14. Mr and Mrs D asked their neighbours to cut about five feet off some trees near their boundary. They say the trees are about 26-30 foot high. Cutting the trees would still give both parties privacy and allow more light into their garden. The trees overshadow their garden, and their roots punctured their pond lining on three occasions, the last time resulting in the loss of all their fish. The neighbours refused to cut them.
15. In June 2023, they complained to the Council about the trees under Part 8 of the Anti-social Behaviour Act 2003 and paid the fee of £510.
16. At the end of August, a tree officer visited the site, made notes, and took photographs.
17. In early September, the officer discussed his findings with another officer. I have seen evidence of this discussion.
18. After several calls to the Council chasing a decision, Mr and Mrs D were told later the same month it would take no action. This was because: the only evergreen trees shown stand in a group, not a line; the remainder of the hedge was made up of deciduous trees with significant gaps. A deciduous tree loses its leaves in autumn while evergreens keep theirs all year.
19. It went on to explain the Council had power to assess a hedge where it:

• is formed by a line of two or more trees or shrubs;
• is wholly or mainly of evergreen or semi-evergreen species;
• is more than two metres in height; and
• forms a barrier to light or access at heights of more than two metres above ground level and this is not significantly affected by the presence of gaps.

20. The officer said the evergreen trees clearly formed a cohesive group that was not planted in a line. The two trees standing close to their fence could be counted, but as it would not solve the shading from the other evergreen trees standing immediately close to them, it was considered inappropriate to take this further. The officer refunded Mr and Mrs D their money.
21. The following month, they made a formal complaint to the Council about its decision. They were unhappy with the lack of contact from the officer who did not visit them. They argued some of the facts were overlooked and his observations were wrong.
22. In November, the Council sent its stage 1 response to their formal complaint. It apologised for the delay in sending its response to their hedge complaint which was due to only having one tree officer with an extremely large workload. The officer visited the site to assess if the hedge met the description in the High Hedges legislation. The trees could be viewed from the neighbours’ land and the site visit was brief. The officer took photographs. There was no communication with the neighbours during the visit.
23. The Council also explained again the requirement of having trees planted in line along the boundary and the trees complained about did not meet this requirement. The Council apologised for the officer’s use of a plural, rather than singular, when referring to gaps between trees. This was because there was only one gap. All the other trees were deciduous and not covered by the legislation which needed them to be evergreen or semi-evergreen.
24. At the end of November, Mrs D asked for her formal complaint to go to stage 2.
25. The following month, they received the stage 2 response from the Council which did not uphold their complaint.

My findings

26. I found no fault on this complaint because I am satisfied the Council correctly assessed Mr and Mrs D’s high hedge complaint. In reaching this view, I took account of the following:
1. The evidence shows the Council did not conclude everything along the boundary was formed, ‘wholly or predominantly by a line of two or more evergreens’.
2. It found the only evergreens along the boundary stood in a group, not a line. The remaining hedge on the boundary was made up of deciduous trees. Mr and Mrs D’s complaint, therefore, failed to meet the statutory criteria on this ground.
3. The Council also considered the remaining deciduous trees had ‘significant gaps’ although it later accepted this should have only referred to ‘gap’. As the guidance stated, there are no fixed rules on the size of any gaps found and the key question was to what extent the hedge blocks light or views, even with gaps. The officer considered the gap was not significant.
4. I am not satisfied this added to the decision as the Council had already decided the evergreen trees were not in a line. This was because the 2003 Act referred to the need to consider gaps when there was a line of evergreens.
27. The Council received Mr and Mrs D’s high hedge complaint in June 2023 and decided it three months later. On balance, I am not satisfied the time taken amounts to fault. This is because, as government guidance notes, there is no set deadline by which councils have to complete their assessment. This does not mean it can take as long as it wants. We can look at what would be an appropriate amount of time in all the circumstances. I am not satisfied the time taken was so long that we could criticise it especially as it also covered the traditional summer holiday period.
28. I note the Council explained why it took about three months to complete the assessment. This was because it had one officer dealing with these applications who had a large caseload. The Council explained it was carrying out recruitment to increase staff levels with arboricultural knowledge in its offices which will improve response times. An additional tree officer post was created.
29. Any complaint Mr and Mrs D have about property damage from the roots of the neighbours’ trees is not for the Council. The trees are not owned by the Council. Mr and Mrs D should consider whether they need to use a remedy through the courts for nuisance.

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Final decision

30. I found no fault on Mr and Mrs D’s complaint against the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman