Summary: Mr X complained about the Council’s failure to maintain a high hedge it owned behind his property. We found the Council did not apply the correct legislation or act according to its duties around high hedge complaints; this is fault. The faults caused Mr X frustration, time and trouble. The Council has agreed to apologise to Mr X, consider his concerns using the appropriate legislation, policy and guidance and review staff awareness around high hedge complaints.

The complaint

1. Mr X complained the Council failed to maintain hedges on land it owns behind his property. He said the hedge is over two metres tall and is blocking light to his property. He wants the Council to cut the hedges or remove them.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. 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)

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What I have and have not investigated

6. I have considered Mr X’s complaint from August 2024 to December 2024. From when Mr X raised his complaint with the Council until the Council’s final complaint response.
7. I have not investigated anything after December 2024. Matters after this date would be the subject of a new complaint. Mr X would need to raise this with the Council first before the Ombudsman could investigate.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Responsibility and the Council’s policy

10. Under the Highways Act 1980, if a tree or trees are planted on council land, then the council is the owner and should maintain it.
11. The Council’s trees and hedge guidance says that a person wishing to report concerns about a tree or trees should find out who is responsible for them, as this may be the Council, town or parish councils.
12. The Council guidance says those looking to complain about a high hedge should be able to demonstrate they have made every reasonable attempt to resolve a dispute before involving the Council.

The Council’s role and powers

13. Part 8 of the Anti-Social Behaviour Act 2003 (the 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.
14. 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.
15. Evergreen means an evergreen tree or shrub or a semi-evergreen tree or shrub.
16. The Government issued guidance to councils about how to process high hedge complaints (‘High Hedges complaints: prevention and cure, 2005). This states:
• the Act should be used by councils to decide whether the height of the high hedge is having an adverse effect on a person’s enjoyment of their home and/or its garden or yard;
• the role of the council is to act as an independent and impartial third party, assessing each case on its own merits; and
• if justified, the council may order the owner to remedy the problem; nothing in the Act requires hedges to be cut below two metres.

What happened

17. Mr X complained to the Council that a hedge, on land owned by the Council, needed maintaining. He said the hedge was over two metres tall and was blocking light to his property.
18. The Council said, after recognising its responsibility for the land and an investigation by highways and its Local Area Technician (LAT), the hedge would not be reduced in height. It said:
• the hedge was inspected from the highway, and it was not a safety issue to highway users. It had no resources to complete the work under its highways inspection policy;
• there was no budget for non-essential work including cutting back trees that were blocking light to properties or for aesthetic reasons;
• the hedge was part of a monthly inspection regime, and it would continue to be monitored;
• Mr X could cut back any obstruction into his property boundary; and
• there was no right to light concerning trees or hedges; the Prescriptions Act 1832 specifying a person must have enjoyed light to a window for 20 years before obstruction.
19. Mr X remained unhappy with the Council’s actions and complaint responses. He asked us to consider his complaint.
20. Mr X said:
• he had been told by the Parish Council that it had maintained it on behalf of the Council but that this funding had stopped;
• at the point he complained to the Council the hedge was three to three and a half metres tall. It was now five metres tall, continued to block light to his property and had started to break his fence;
• the Council had never visited his property, which he had lived in for over 20 years, spoken directly with him to investigate his complaint about the high hedge or investigated whether it is blocking light to his property;
• he had never been directed to complete a high hedge complaint form; and
• he understood the depth of the hedge onto the highway was still being maintained, but those carrying out the maintenance had been told not to reduce the height.

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Analysis

21. Mr X was clear in his complaint to the Council that the hedge was over two metres tall and was blocking light to his property.
22. The Council investigated his concerns using its highways safety policy and referred to the Prescriptions Act 1832. It said it had inspected the hedge from the highway, however, it had not used its powers under the relevant legislation, namely the Antisocial Behaviour Act 2003, to make an assessment to determine whether the hedge was having an adverse effect on Mr X’s reasonable enjoyment of his property. This is fault.
23. Further, while it was correct to say Mr X could cut back any obstruction caused by the hedge, it was incorrect to say it did not have a duty with respect to the right to light concerning trees and hedges.
24. The Ombudsman cannot question a council’s decision where it has followed the correct policy and legislation and there is no fault in the decision-making process. However, the Council had not assessed the hedge according to relevant high hedge legislation and guidance. This is fault.

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Action

25. To remedy the injustice caused to Mr X the Council has agreed to, within one month of my decision:
• apologise in writing to Mr X to acknowledge the injustice caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisation should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology; look to resolve the matter informally with Mr X in the first instance, in line with the government guidance on high hedges;
• if the matter cannot be resolved informally, the Council has agreed to inform Mr X that he may fill in a high hedge complaint form with reference to the Council’s policy. In this instance it should also consider government guidance on remaining independent and impartial for high hedge investigations and decisions; and
• review available information and provision of training about high hedge complaints to relevant staff to ensure awareness of relevant law and policy.
26. The Council will provide us with evidence it has complied with the above actions.

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Decision

27. I find fault causing injustice. The Council has accepted my recommendations, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman