Summary: We will not investigate this complaint about the Council issuing inconsistent instructions to the complainant regarding a hedge overhanging the highway. We are satisfied with the action the Council has already taken, it is reasonable to expect the complainant to have used his right of appeal in the magistrates court, and we will not pursue his concerns about the complaints process in isolation.

The complaint

1. Mr X complains about inconsistent instructions he received from the Council about cutting his hedge. He says it was confusing and stressful to receive a legal notice, after initially being told he could delay cutting the hedge, and is unhappy about the conclusions reached during the subsequent complaint process.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can 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. So, we do not start an investigation if we decide:

• 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. In relation to the first and second bullet points above, our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
5. The law also 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)
6. The magistrates court can consider appeals against section 154 notices.
7. We may also decide not to start an investigation if we are satisfied with the actions an organisation has taken or proposes to take in response to a complaint. (Local Government Act 1974, section 24A(7), as amended)
8. Finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

9. I considered information provided by Mr X and the Council, which included their complaint correspondence.
10. I also considered the Ombudsman’s Assessment Code.

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My assessment

11. A Council may issue a notice, under section 154 of the Highways Act 1980, as amended, requiring landowners to lop or cut vegetation which it considers obstructs safe passage along a public highway.
12. As I understand it, the Council wrote to Mr X in late‑February 2024, asking him to cut back his hedge as it was overhanging the pavement. Mr X contacted the Council in early-April 2024, notifying it that birds were nesting in the hedge, and he was concerned he would be committing an offence by cutting it during the nesting season. In response, the Council told Mr X the cutting could wait until the bird nesting season had ended.
13. This officer response was not added to the Council’s database, so a section 154 notice was issued in late-April 2024. Mr X submitted a complaint. In its complaint responses, the Council apologised for the lack of clarity and confusion, and explained how the hedge cutting could be done during the nesting season. It said it would cancel the current notice/enforcement action, but would revisit the site and reassess the situation within 10 working days, and if any remedial action was still needed a new letter/notice would be sent. The Council also said it was looking at providing additional staff training on nesting birds.
14. I appreciate it would have been confusing and worrying to receive the section 154 notice, having been previously told to delay the cutting, and that Mr X spent time and effort on pursuing his complaint. But (with reference to paragraphs 3, 4 and 7 above), I am satisfied the Council’s apology and clarification of what was required, was a reasonable way to address the injustice caused, so we will not investigate this part of the complaint.
15. Thereafter, if Mr X still disagreed with the works the Council was asking him to undertake, he could have waited to receive another section 154 notice and then appealed against it in the magistrates court. I see no good reasons why he should not have been expected to use the court remedy put in place by Parliament to resolve such disputes, so the Ombudsman will not investigate this part of the complaint either.
16. Lastly, it would not be a good use of our resources to investigate, in isolation, the conclusions reached during the Council’s complaint process (e.g. which aspects of the complaint were upheld, partly upheld, or not upheld), where we have decided not to investigate the substantive issues being complaint about.

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Final decision

17. We will not investigate Mr X’s complaint because we are satisfied with the action the Council has already taken, it is reasonable to expect him to have appealed if another notice was served, and we will not pursue his concerns about the complaints process in isolation.

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Investigator's decision on behalf of the Ombudsman