Summary: Mr C complains the Council failed to take enforcement action about the removal of a hedgerow. He also says he was not advised about the complaints process. The Ombudsman has found no evidence of fault in respect of enforcement. The Council did fail to advise Mr C about time restrictions on complaints. The Ombudsman has completed the investigation. He has upheld the complaint because of one fault by the Council but there is no outstanding injustice.

The complaint

1. The complainant (whom I refer to as Mr C) says the Council has failed to take enforcement action for the removal of a hedgerow near his home. He says the Council should have taken action under the Hedgerows Regulations 1997 (Regulations). He also states the Council failed to tell him that an escalated complaint was time restricted.

Back to top

What I have investigated

2. I have looked at events from August 2018 onwards. I have not looked at earlier actions for the reasons below.

Back to top

The Ombudsman’s role and powers

3. 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)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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)

Back to top

How I considered this complaint

6. I have spoken to Mr C and considered the information he provided. I also asked the Council questions and carefully examined its response along with the relevant legislation.
7. I shared my draft decision with both parties.

Back to top

What I found

What happened

Background to the complaint

8. In October 2017 a resident told the Council that hedgerows running adjacent to a new housing development had been removed. The Council visited and found no breach of planning control as the land was not covered by any planning conditions. Mr C then reported the same issue and the Council visited again in December and confirmed its original decision.
9. In March 2018 Mr C contacted the Council about the hedgerow and was told there was no action the Council could take.

Events I have investigated

10. In August Mr C sent the Council a formal complaint (called a stage one complaint) stating the removal of the hedgerow was unlawful under the Regulations. The Council replied in September. It said that because the site was not bounded by agricultural land the Regulations did not apply.
11. Mr C then contacted various organisations about the case. He came back to the Council in August 2019 and asked it to consider a formal escalated complaint (a stage two complaint). The Council advised Mr C that he should have made a stage two request within 28 days of its previous decision but accepted this had not been stated in the 2018 letter. On 2 September the Council told Mr C that it would not escalate his case to stage two. That was because Officers had looked at the matter and events had not changed significantly since 2018. This meant the previous decision response still stood and there was nothing more it could add. It apologised again for not telling Mr C about the 28 day time limit.

What should have happened

12. The Regulations set out the criteria for the Council to investigate and take enforcement action for the unlawful removal of hedgerows. The Regulations have an initial set of criteria including:

• land used for agriculture or forestry
• land used for breeding or keeping horses, ponies or donkeys
• common land
• a village green
• a site of special scientific interest
• a local or national nature reserve
• land belonging to the state

One of those must be met in order for the Council to then consider other factors such as the make-up of the hedgerow, size, age etc. The Council cannot pursue an investigation if the initial site criteria are not met.

13. The Council can also investigate if there has been breach of planning control. It will check whether the land in question has any planning conditions or restrictions placed on it. If no such restrictions apply the Council cannot take any planning enforcement.
14. The Council has a two stage complaints process. Initial complaints are called a stage one complaint. The stage one response from the Council should tell the complainant they have 28 days to ask for the case to be escalated to a stage two complaint.
15. The Council has discretion over whether it should accept a stage two complaint. If it considers the matter has already been fully addressed, it can decide to notify the complainant of this and its decision to not accept a stage two complaint.

Was there fault by the Council

16. Mr C says the Council should take enforcement action under the Regulations. I have not found evidence of fault. The Council did consider if the Regulations applied and advised Mr C of its decision in 2018. It correctly told him that as the initial location criteria was not met it had no duty to take the matter further. I appreciate that Mr C does not agree with the Council, but the Ombudsman will not question the validity of a decision where there is no fault in how it was reached.
17. Mr C also states the Council failed to tell him about time restrictions on applying for a stage two escalated complaint. The Council has already acknowledged and apologised for that omission in 2019. Furthermore, it has explained that all stage one response letters now include a standard paragraph with this information included. In respect of the decision to not accept a stage two complaint in 2018 the Council is not at fault. It has the right to refuse the request if it considers the matter has already been addressed.

Back to top

Final decision

18. I have completed the investigation. There is one fault by the Council, so I have upheld the complaint, but it did not cause an outstanding injustice.

Back to top

Parts of the complaint that I did not investigate

19. I have not looked at events prior to August 2018 because the Ombudsman expects a complaint to be made to him within 12 months as set out in paragraph 3.

Back to top

Investigator's decision on behalf of the Ombudsman