Summary: Mrs X complained the Council failed to act on reports of overgrown roadside hedges and trees, and on reports of ragwort spreading onto the highway. Mrs X said the hedges and trees posed a danger to traffic and the ragwort was spreading onto her property. We have found some fault in this matter and recommend a remedy to recognise the injustice identified.

The complaint

1. Mrs X complains the Council failed to act on reports of overgrown roadside hedges and trees which she says poses a danger to traffic. She also complains the Council failed to act on reports of ragwort spreading onto the highway. Mrs X says she has reported these issues to the Council since 2011.
2. Mrs X says the Council’s failure to maintain the trees and hedges along the roadside has made it difficult for her to see oncoming traffic when she leaves her driveway. She also says the ragwort is spreading onto her property. Mrs X would like the Council to maintain the roadside hedges and trees and to take appropriate action regarding the ragwort.
3. Mrs X also complained about water leaking onto the road, the condition of a fence between the road and a nearby field containing horses, and the presence of ragwort in the field.

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What I have investigated

4. I have investigated the complaints referred to in paragraphs one and two. I have not investigated these complaints back to 2011 because the complaint is late. I have however, exercised discretion in investigating the complaint back to January 2020.
5. I have not investigated the complaints referred to in paragraph three. The final section of this statement explains my reasons for this.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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)

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How I considered this complaint

9. I discussed the complaint with Mrs X and considered the information she provided.
10. I made enquiries to the Council and considered the information it provided.
11. I issued a draft decision to Mrs X and the Council and invited both parties to provide comments. I issued an amended draft decision after considering the comments and further information from both parties.
12. Mrs X and the Council have had the opportunity to comment on the amended draft decision. I have considered their comments before making a final decision.

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What I found

Overhanging trees and hedges

13. The Highways Act 1980 (the Act) says: “Where a hedge, tree or shrub overhangs a highway or any other road or footpath to which the public has access so as to endanger or obstruct the passage of vehicles or pedestrians, or obstructs or interferes with the view of drivers of vehicles […}, a competent authority may, by notice either to the owner of the hedge, tree or shrub or to the occupier of the land on which it is growing, require him within 14 days from the date of service of the notice so to lop or cut it as to remove the cause of the danger, obstruction or interference. (Highways Act 1980, 154(1))
14. The Act also says: “Where it appears to a competent authority for any highway, or for any other road or footpath to which the public has access—

1. that any hedge, tree or shrub is dead, diseased, damaged or insecurely rooted, and
2. that by reason of its condition it, or part of it, is likely to cause danger by falling on the highway, road or footpath,

the authority may, by notice either to the owner of the hedge, tree or shrub or to the occupier of the land on which it is situated, require him within 14 days from the date of service of the notice so to cut or fell it as to remove the likelihood of danger. (Highways Act 1980, 154(2))

The Council’s enforcement policy regarding hedges and trees

15. The Council says the cutting back of highway hedges and trees is the responsibility of the landowner or occupier on whose land the hedges and trees are growing. It is the landowner’s and occupier’s responsibility to ensure their hedges and trees do not interfere with the safe use of public footways and roadways or obscure streetlights and road signs. The Council has a duty to ensure landowners and occupiers recognise their responsibilities to keep public highways clear of their overgrowing hedges and trees for the benefit of all highway users.
16. The Council says if it cannot gain a landowner or occupier’s co-operation regarding this matter, it will inform its Highways Department so that it can consider taking formal enforcement action.

Government guidance on controlling ragwort

17. The Department for Environment, Food and Rural Affairs, (DEFRA), published guidance on how to prevent the spread of ragwort. Ragwort is a native species of the British Isles, and is specified as a weed under the Weeds Act 1959. It contains toxins which can have debilitating or fatal consequences if eaten by horses or other grazing animals.
18. The guidance says landowners or occupiers should review the risk of the spread of ragwort to land used for grazing. The guidance also says “Ragwort is frequently found growing by the side of highways including motorways and other trunk roads, other public roads and private roads. It can pose a serious risk of spreading to grazing land and land used for feed/forage production within the locality. Where ragwort is present on roadside verges and the spread of ragwort poses a high risk to grazing animals and/or feed/forage production it must be controlled. The vast extent of the road network and the land surrounding it means that ragwort will be likely to spread on to highway verges.

What happened

19. This chronology includes key events in this case and does not cover everything that happened.
20. On 11 September 2020, Mrs X complained to the Council about dead trees and a hedge along the roadside near her home. She said the trees and the hedge were a danger to public highway safety as they were overgrown and meant traffic was forced into the middle of the road. She said this issue had been ongoing for several years. Mrs X also complained about water leaking onto the road and about the condition of a fence to a nearby field containing horses.
21. The Council replied on 1 October 2020 and told Mrs X it had contacted the landowner. It said the owner of the field and the hedge would check and maintain the fence and would also carry out maintenance to the hedge. The Council said it had inspected the hedge and found it did not meet intervention levels. It also said the water leak was not causing problems with the highway.
22. Mrs X responded on 11 October 2020. She said she considered the hedge was a danger to buses and lorries using that stretch of road.
23. On 3 February 2021, Mrs X complained to the Council’s Tree Team. She said the hedge had been cut but said this was not done properly because of the thickness of the dead trees. Mrs X said branches and trees continued to overhang the grass verge along the highway.
24. Mrs X emailed the Council on 6 February 2021. She asked why the Council had not reported the presence of ragwort in the field containing horses to DEFRA.
25. The Council carried out a survey of the trees along the roadside around Mrs X’s home on 16 February 2021. It identified 19 trees that were dead or dying and required felling, and another that required “crowning”.
26. On 18 February 2021, the Council provided its complaint response. It said it had carried out a visual inspection of the hedge and found it was off the edge of the line of the carriageway. The Council said it therefore considered the hedge was not a problem at the time of inspection. However, it said that since the visual inspection of the hedge was undertaken, it’s Arboriculture Team had carried out a further inspection of the trees. It said this found that several trees along the road needed maintenance.
27. The Council said ragwort is dealt with by DEFRA and Natural England and that it would assess if action was needed in cases where ragwort was present on land owned by the Council. The Council also said at the time of the inspection, it found little to no water leak.
28. Mrs X replied on the same day and said she had already contacted DEFRA about the ragwort. She said she considered it was the Council’s responsibility to follow this up as she said ragwort was spreading onto the highway. Mrs X said she considered the Council had a duty to deal with the ragwort as well as the dead trees overhanging the road.
29. The Council emailed Mrs X on 24 February 2021. It said the landowner had removed the horses from the field and there was no current concern in terms of animal welfare.
30. Mrs X complained to the Council on 22 April 2021. She said she had been contacting the Council about the safety issues on the road near her home since 2011. Mrs X said there were too many horses in the field by the road and that the hedge remained a problem, despite it being cut back. Mrs X said the hedge remained too thick and high and that it overhung the verge and the main road. Mrs X also said some trees which she considered posed a risk to motorists were still there, and the Council had not reported the ragwort to DEFRA. She said she felt the Council had ignored her concerns and had not taken the matter seriously.
31. The Council replied on 29 April 2021 and told Mrs X it was unable to consider these matters again.
32. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened next

33. The Council carried out a further survey of the trees in the area on 8 July 2021. The survey found that seven trees needed maintenance work.
34. Mrs X’s partner emailed the Council on 20 September 2021 and acknowledged the dead trees had been removed. However, he said the issue with the overgrown hedges was ongoing and asked the Council to ask the landowner to cut the hedge.
35. The Council told Mrs X’s partner it would inspect the hedge and would start enforcement procedures if it was found to be overgrowing the highway to a dangerous degree.
36. Mrs X says some trees with overhanging branches remain in the area and that some of the trees identified by the Council’s survey are still there. She also says the hedge is still overgrown and requires cutting.

Recent events

37. Following the sharing of the initial draft decision with Mrs X and the Council, the Council carried out a further survey of the trees in the area in January 2022.

Analysis – is there fault by the Council?

38. The Council says the hedges, trees and fields allegedly containing ragwort are privately owned; it says the land on which the hedges and trees are/were growing is not owned by the Council. Mrs X’s complaint therefore is that the Council did not take enforcement action against the landowner regarding the hedges and trees, and that it failed to act on reports of ragwort spreading to the highway.
39. My role is to consider how the Council considered Mrs X’s concerns about the hedges, trees and ragwort; it is not to decide if the Council should have taken enforcement action. We may not question the merits of decisions which have been properly made and cannot comment on judgements made by the Council unless they are affected by fault in the decision-making process.

The Council’s actions regarding the hedges

40. The Council says it inspected the hedge in about September 2020 and again in September/October 2021. I have not seen the Council’s records of these visits as the Council says these were only visual inspections. However, I have seen internal email correspondence which confirms a visual inspection took place in September/October 2021.
41. The email correspondence shows the Community Highways Officer, (CHO) who carried out the inspection found the condition of the hedge did not meet intervention levels at that time. On this basis, the CHO said they were unable to take enforcement action. The email also says the CHO had previously sought the opinion of other officers about the hedge, and this supported the officer’s findings. The CHO said they had also liaised with local hauliers, bus companies and other drivers and had not identified any issues regarding the condition of the hedge.
42. As stated at paragraph 13, councils may take action to require a landowner or occupier to cut hedges which overhang the highway. However, the decision to take enforcement action is discretionary, and councils are not required to use this power.
43. I acknowledge Mrs X considers the hedge on her side of the road still requires cutting. However, the Council says that following its inspection, it found the condition of the hedge did not require intervention. The CHO made their assessment based on their professional judgement, and in this instance, deemed enforcement action was not appropriate. Although Mrs X disagrees with this assessment, this is not evidence of fault, and I have seen no evidence to indicate the CHO’s assessment was flawed. On this basis, I have found no fault in this aspect of the complaint.

The Council’s actions regarding the trees

44. In its complaint response of 18 February 2021, the Council says it carried out a visual inspection of the trees (in about September 2020) and found they were not on the edge of the line of the carriageway. It did however acknowledge there were some dead branches at that time, but said it considered the trees did not present a problem.
45. As a result of the survey carried out in February 2021, (five months after the visual inspection), the Council identified 19 trees that were dead or dying and required felling. It carried out another survey in July 2021 which identified required maintenance for another seven trees.
46. The Council contacted the landowner to ask them to carry out the required maintenance work. The Council sought clarification from the landowner’s agent that the works were completed and says it considered the trees were removed as a result. I have seen an email from Mrs X’s partner to the Council dated 20 September 2021 which acknowledges the dead trees were removed. However, Mrs X says this email only refers to the dead trees in the verge and says not all the trees identified by the Council were removed.
47. I have not seen evidence of the visual inspection carried out in September 2020; the earliest evidence of a survey is dated February 2021. However, I consider it is more likely than not the trees identified as dead or dying as part of the survey in February 2021 were already dead or dying at the time of the inspection in September 2020. This is because Mrs X complained about the dead trees at that time. I also consider it is unlikely the condition of 19 trees deteriorated to such an extent to be described as dead or dying in the five months between September 2020 and February 2021.
48. Although the Council carried out a full survey, it did not do this until February 2021. I acknowledge the Council says it previously carried out a visual inspection. However, it did not conduct a survey by the Arboriculture Team until five months later, following further contact by Mrs X. It was this survey that found the work required was “essential”. I consider the five months taken to arrange a survey by the Arboriculture Team indicates delay by the Council, and I consider this delay is fault.
49. Mrs X says some of the trees identified as needing to be felled in February 2021 are still at the site. Mrs X also says there are several oak trees which she considers require maintenance that do not appear on the Council’s tree surveys. She considers these trees, and the hedge continue to pose a danger to the public.
50. The Council says it is satisfied the hedge does not present a danger to traffic. In its initial response to my enquiries, it also said the required work identified by the tree survey in February 2021 was carried out. However, following the sharing of my initial draft decision, the Council carried out a further tree survey in January 2022.
51. The January 2022 survey identified a total of 28 trees which require work. The Council says, “the trees identified in the original survey were all dealt with”, but goes on to say, “most if not all of the original dead trees are no longer there”. Having reviewed the most recent survey, several of the trees included in the January 2022 survey were identified as part of the February 2021 survey.
52. I acknowledge the Council’s comments that it was corresponding with the landowner’s agent to ensure the dead trees were removed. However, the most recent survey shows not all the work identified as "essential” in February 2021 was carried out. Although the Council was corresponding with the landowner’s agent, the evidence indicates it did not carry out an inspection to satisfy itself that “essential” work was completed until January 2022. I consider this is evidence of delay by the Council and have found this delay to be fault.
53. I acknowledge Mrs X’s comments that she considers several oak trees also require maintenance. However, the Arboriculture Team has carried out three surveys and identified the work it considered to be required. The required work did not include the oak trees specified by Mrs X. Although Mrs X disagrees with the Council’s assessment of the oak trees, this is not evidence of fault. The Arboriculture Team made its assessments based on its professional judgement and I have seen no evidence to indicate these assessments are flawed.

The Council’s actions regarding ragwort

54. The Council says Mrs X’s concerns about the presence of ragwort relate to privately owned land. It says, “there is no significant ragwort on the highway verge in this location” and it has “received no “confirms” identifying a ragwort issue.”
55. The Council says it cuts the verge twice a year and this helps to control the presence of any ragwort present. It says, “ragwort plants are a concern for livestock owners and [the Council] will and does take appropriate action where ragwort is growing on [Council] land and when a high risk has been identified.” The Council also says it closely follows the advice given by DEFRA for managing ragwort and says the guidance does not seek to eradicate ragwort.
56. The Government guidance says landowners should control ragwort where it poses a risk of spreading to areas used for grazing. In this case however, Mrs X says the ragwort has spread from privately owned grazing land to the roadside verge. Therefore, the Council’s explanation is in line with the guidance regarding this matter. The guidance recognises that ragwort is frequently found at the side of roads but does not specify that councils must take action in all cases, or that they must eradicate it from these areas.
57. The guidance does not require the Council to control/remove ragwort from the verge if it does not pose a high risk to grazing animals. And the Council is not responsible for reporting ragwort found on privately owned land to DEFRA or Natural England. As a result, I have found no fault by the Council in this aspect of the complaint.

Is there an injustice to Mrs X?

58. Mrs X says she felt frustrated because she considered the Council did not listen to her concerns. She says she is also worried about the safety to herself and other road users because of the condition of the trees and the hedge. I acknowledge Mrs X’s comments and consider the delays identified above contributed to her feelings of frustration and worry.

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Agreed action

59. To address the injustice to Mrs X arising from the fault identified, the Council has agreed to take the following action within one month of the final decision:

• Provide an apology to Mrs X;
• Make a payment of £250 to recognise the frustration and worry caused by the delays.

60. The Council has also agreed to take the following action within two months of the final decision:

• Carry out a further survey to identify any works still required to the trees as identified in the January 2022 tree survey, and
• Consider any appropriate enforcement action in respect of the above if required.

61. The Council is required to provide evidence it has complied with the recommended actions.

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Final decision

62. I have found fault by the Council as set out in the above statement. The Council has agreed to take the above action to resolve this complaint and I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

63. I have not investigated Mrs X’s complaint about water leaking onto the road. This is because the maintenance of the mains water pipes is the responsibility of the water company. Mrs X has contacted the water company regarding this issue.
64. I have not investigated Mrs X’s complaint about the condition of a fence between the road and a field containing horses. This is because there is not enough evidence of fault to justify investigating and it is unlikely that further investigation would be able to add to the previous investigation by the Council.
65. I have not investigated Mrs X’s complaint about the presence of ragwort in the field containing horses. This is because the issue of ragwort is dealt with by Natural England and the Department for Environment, Food and Rural Affairs. The field complained about is privately owned and the Council is not responsible for the control of ragwort within it.

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Investigator's decision on behalf of the Ombudsman