Summary: We will not investigate Mr X’s complaint about the Council’s failure to maintain trees and hedges which are causing obstructions to the public highway. This is because the Council has taken the steps it considers necessary to deal with the issue and it is not for us to say it must do more. It is therefore unlikely investigation would achieve any worthwhile outcome for Mr X.

The complaint

1. The complainant, Mr X, complains the Council has failed to maintain overgrown trees and hedges adjacent to the public highway. He says the trees and hedges obstruct the highway and impact on visibility and he does not believe the Council has done enough to comply with its duties under Section 41 of the Highways Act 1980.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The law 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)

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How I considered this complaint

4. I considered information provided by Mr X and the Ombudsman’s Assessment Code.

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My assessment

5. Section 41 of the Highways Act 1980 places a duty on local highway authorities to maintain public highways. Mr X says this requires the Council to ensure public highways are “free from obstruction” such as that caused by the trees and hedges but this is not what it says.
6. We cannot interpret the law to determine whether the Council has complied with its duty. If therefore Mr X believes it hasn’t, it would be reasonable for him to take the matter to court. Section 56 of the Act provides a mechanism for any member of the public alleging a highway is ‘out of repair’ to apply for an Order requiring the Council to carry out repairs. If Mr X considers the failure to remove the obstruction amounts to a breach of the Council’s duty he may argue the point at court.
7. I appreciate Mr X is unhappy with the amount of time the Council took to investigate his concerns about the trees and hedges but it has now taken steps to deal with the issue and it is unlikely investigation would achieve anything more for Mr X.
8. The Council confirms its contractor has cut back the hedges to the kerb and that works to reduce the height of the trees is programmed to be completed over the winter. Mr X believes this is not enough and refers to guidance which suggests the hedges should be cut back further and with more urgency, but the guidance is from another council and does not apply to this one.
9. We are not an appeal body. This means we do not take a second look at a council’s decision to decide if it was wrong. The Council has taken the steps it considers necessary to deal with the issue Mr X raised and it is not for us to say it must do more.

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Final decision

10. We will not investigate this complaint. This is because it is unlikely investigation would achieve any worthwhile outcome for Mr X.

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Investigator's decision on behalf of the Ombudsman