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Isle of Wight Council (20 006 705)

Category : Transport and highways > Other

Decision : Upheld

Decision date : 26 Feb 2021

The Ombudsman's final decision:

Summary: Mrs B complained the Council’s Contractor wrongly cut a large hole in her hedge without following the legal process required. She experienced distress from the damage caused and she had costs to repair the hedge. The Council was at fault because its Contractor failed to follow the legal process available. It has agreed to make payment to acknowledge the distress and damage caused. It also agreed to ensure its Contractor reminds its workers of the process it must follow before it takes action to cut overgrown vegetation.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained the Council made a large hole in her hedge to repaint a streetlamp on the side of her property. She said the Council:
    • failed to give her an Overgrown Hedge Notice and trespassed on her property;
    • treated her discourteously because of her age by not telling her the extent of its project; and
    • wrongly sent her an Overgrown Hedge Notice because she made a complaint.
  2. As a result, Mrs B said she experienced distress and she had costs to repair the hedge.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. 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

  1. As part of my investigation, I considered:
    • Mrs B’s complaint and the information she provided;
    • The Council’s correspondence with Mrs B and its responses to her complaint;
    • Pictures of the hedge provided by Mrs B and the Council.
  2. I gave Mrs B and the Council the opportunity to comment on my draft decision.

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What I found

The Highways Act 1980

  1. Section 154 of the Act says a Council may serve notice on an owner of a vegetation that obstructs a highway or a footpath to which the public have access so as to endanger or obstruct the passage of vehicles or pedestrians.
  2. A notice requires the owner to, within 14 days from the date of the service of the notice, to remove the vegetation as to remove the cause of the danger, obstruction or interference.
  3. If an owner fails to comply with a notice, the Council may carry out the work required by the notice and recover reasonable expenses from that person.
  4. A person who disagrees with a notice has a right of appeal to a magistrate’s court.

What happened

  1. The Council has an agreement with a contractor (the Contractor) to maintain its roads and pathways. This also includes street sweeping and maintaining streetlamps.
  2. In 2020, the Contractor identified the streetlamp on the side of Mrs B’s property to be scheduled for repainting.
  3. Mrs B said the Contractor visited her a week before work on the streetlamp started. She said she was told the Contractor needed access to a ‘box’ at the base of the streetlight and it had to trim some branches back to allow access. Mrs B said she told the Contractor to not cut her hedge. Instead, she would tie back the branches to provide access.
  4. A week later, the Contractor returned. It cut a hole in the hedge around the streetlamp to allow access to paint it and repainted the lamppost.
  5. Mrs B was unhappy with the Contractors. She says it cut a huge chunk of the hedge around the lamppost. She was upset and spoke to one of the workers. She said he told her their orders were to paint the lamppost black. Mrs B said she found the workers behaviour discourteous and he failed to provide an explanation to her. And so, she complained to the Contractor.
  6. In response the Contractor apologised for its workers behaviour and told Mrs B it would investigate this internally.
  7. Mrs B was not happy with the response. And so, she escalated her complaint. She said the Contractor had not responded to her main complaint, which was the damage to her hedge and the distress this had caused her. She also, said the Contractor had trespassed on her property without her permission or knowledge.
  8. In response the Contractor investigated her complaint. It said:
    • when it attended to repaint the lamppost, it noted her hedge had overgrown the footway covering the streetlamp. It acknowledged it had not followed the required procedure to formally notify Mrs B and provide her with an Overhanging Hedge Notice.
    • It had not trespassed on her property as it had access to cut the hedge from the footway. However, it apologised that it cut the hedge without giving her the opportunity to arrange for this herself.
    • Although her hedge was well maintained it had been left to overgrow the footway. And so, it would arrange for an Overhanging Hedge Notice to be served on Mrs B to have the hedge cut back to the edge of the footway within 14 days.
    • Its supervisor has been asked to ensure its workers are aware of the process that must be followed under the Section 154 of the Highways Act 1980.
  9. Mrs B remained unhappy with the Contractors response and wrote another letter to the Contractor.
  10. The Contractor did not respond to Mrs B’s letter. However, it sent her a letter asking her to arrange for her hedge to be cut to the edge of the footway. The letter warned Mrs B that failure to do so would result in a section 154 Overhanging Hedge Notice under the Highway Act 1980. It also included photos from summer 2020 of the hedge and a document from 2014 showing how it assesses whether vegetation and trees are overgrown onto roads or footways.
  11. And so, Mrs B complained to the Ombudsman. She also said the photos the Contractor provided were historic and the 2014 document on assessing vegetation was wrong as there were no longer trees overhanging the footway as these had been cut several years ago.

Analysis

  1. A Council can delegate is duties to a third party, such as a contractor. However, it remains responsible for the actions of a contractor performing public tasks on its behalf. The Council is therefore responsible for the Contractor’s actions in relation to Mrs B’s complaint.

Cutting the hedge

  1. The Contractor acknowledged it failed to follow the required procedure under Section 154 of the Highways Act 1980 and Mrs B therefore did not have the opportunity to arrange for her hedge to be cut herself. This is fault. The Contractor apologised to Mrs B and said it has taken steps to ensure its workers follow the required procedures in the future.

Did the Contractor treat Mrs B discourteously because of her age?

  1. Mrs B said the Contractor and its worker treated her discourteously because of her age. She said this was because of the way its worker spoke to her and its failure to tell her about the extent of its project.
  2. The Contractor acknowledged it failed to tell Mrs B about the extent of its project. I found fault by the Contractor for its failure to follow the required procedures. However, there is no evidence to suggest this was because of Mrs B’s age.
  3. In addition, the Contractor acknowledged its worker’s behaviour may have been inappropriate. It apologised to Mrs B and said it would investigate. However, there is no evidence the worker treated Mrs B differently because of her age. And so, I find the Contractor’s apology to be a suitable remedy for the injustice caused to Mrs B on this matter.

Overgrown Hedge Notice

  1. Mrs B said the Contractor wrongly sent her an Overgrown Hedge Notice and a historical document and photos as it evidences. She said it only did so because she had complained.
  2. Based on the evidence available, the Contractor did send Mrs B a letter after her complaint which explained her hedge was overgrown onto the footway and covering the streetlamp. However, the letter was not an Overgrown Hedge Notice as set out in Section 154 of the Highways Act 1980. It was a warning that this may be the next step the Contractor would take if she failed to arrange for her hedge to be cut.
  3. The document the Contractor sent as evidence was its Overhanging Vegetation – Trimming Requirements which it has used since 2014. This document explains the measurements for when vegetation and trees must be cut to avoid overhanging on footways and roads. Mrs B therefore misunderstood the drawings in the document to be her trees and hedge. I am therefore satisfied the document is not historical.
  4. Mrs B said the photos provided by the Contractor were historic. The Contractor said these were from summer 2020. Without further evidence, I cannot say if the photos are historic or not. However, based on the photo provided by Mrs B, I am satisfied the hedge did cover the streetlamp and it was therefore overgrown at the time the Contractor cut her hedge. And so, the Contractor has now acted within its rights to start the legal process to arrange for her hedge to be cut. I have therefore not found any fault by the Contractor on this matter.
  5. In addition, if the Contractor decides to serve a valid Section 154 notice on Mrs B and she disagrees with the notice, she has the right to appeal to a magistrate’s court.

Injustice

  1. Mrs B said she experienced distress and costs because the Contractor’s cut her hedge. I am satisfied this did cause Mrs B distress and she provided evidence of the cost to have the hedge repaired.
  2. The Contractor apologised to Mrs B for its fault and its workers behaviour. It also said it would ensure its workers follow the required legal procedure under Section 154 of the highways Act 1980 in the future. However, I am not satisfied this is enough to address the distress and costs Mrs B has experienced.
  3. I acknowledge Mrs B would have had costs to trim her overgrown hedge. However, on balance I am satisfied the hedge would have been damaged less if Mrs B had the opportunity to arrange for her hedge to be cut to allow for the painting of the lamppost. I therefore find a symbolic payment to acknowledge the injustice caused appropriate to remedy the distress and damage caused.

Agreed actions

  1. To remedy the injustice the Contractor caused to Mrs B, the Council has agreed to, within one month of the final decision:
      1. Pay Mrs B £100 to acknowledge the distress and damage caused;
      2. Pay Mrs B a further £50 to acknowledge the time and trouble to complain and trying to get the Contractor to comply with the law; and
      3. Ensure its Contractor has reminded its workers of the process it must follow under Section 154 of the Highways Act 1980.

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Final decision

  1. There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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