Summary: Mrs D complains the Council failed to enforce a high hedge Remedial Notice. The Ombudsman has found the Council failed to update Mrs D during the lockdown period in 2021. This did not cause a significant injustice. Overall, the Council acted without fault. The Ombudsman has completed the investigation and upheld the complaint because of the communications error.

The complaint

1. The complainant (whom I refer to as Mrs D) says the Council should have enforced a Remedial Notice regarding high hedges at a neighbouring property. Mrs D refers to events dating back to 2017.

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What I have investigated

2. I have looked at what happened from January 2019. I explain below why I am not considering earlier events.

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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)

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How I considered this complaint

6. I have spoken to Mrs D and considered the information she provided. I asked the Council questions and carefully examined its case file.
7. I shared my draft decision with both parties.

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What I found

What happened

Background

8. In 2017 the Council investigated a high hedge complaint from Mrs D about various trees at a neighbouring property. The Council used the formula set out in government guidance (High Hedge Complaints: Prevention and Cure) and concluded the trees did form a high hedge. It issued a Remedial Notice to the neighbour requiring the trees be cut back to a specified height. The case subsequently went to the Planning Inspectorate.

Events I have investigated

9. In February 2019 the Planning Inspectorate issued its decision. It allowed the neighbour six months to comply with the Remedial Notice. When that period expired in August the Council wrote to the neighbour asking if they intended to comply with the Remedial Notice. The Council sent Mrs D an update at the start of September. It wrote to the neighbour again on 25 September that a Planning Officer would visit regarding non-compliance of the Remedial Notice. A Planning Officer subsequently visited and confirmed the high hedge issue remained. They prepared a witness statement in October for court action. The Council pursued the case to court and the case was adjourned in January 2020. The Council updated Mrs D about this.
10. In March the Council decided to pursue ‘direct action’ to remedy the high hedge after consideration of the owner’s circumstances. It drew up a brief for the intended works and obtained quotes from a contractor.
11. There was no action from the end of March until October. This was the period when lockdown resulting from the covid-19 pandemic occurred. On 8 October the Council wrote to the neighbour advising the ‘direct action’ would take place at the end of the month. It subsequently updated Mrs D. After correspondence with the neighbour’s solicitor the Council had to delay the ‘direct action’ until the end of November. In November the Council sought additional legal advice on whether it could pursue enforcement of the Remedial Notice. A tree had been removed and two more had been reduced. One tree remained that was over the permitted height. The legal advice to the Council said the Remedial Notice was now ineffective given the works at the property. The Council decided it had no further basis to carry out enforcement action. Whilst a holly tree remained over the required height it could not be classed as a high hedge because a single tree did not constitute a high hedge under government guidance. The Council would take enforcement action if the other trees grew over the permitted height.

What should have happened

12. When the Council receives a complaint about a high hedge it allocates the case to a Planning Officer to investigate. The Planning Officer considers government guidance (High Hedge Complaints: Prevention and Cure 2005). They carry out a site visit and assess if the hedge (which can be bushes or trees but must consist of two or more plants) is adversely affecting reasonable enjoyment of the complainant’s property. A formula in the guidance is used to calculate whether the hedge is causing a loss of light to the complainant’s garden or windows. If the Planning Officer finds there is a high hedge requiring action the Council will issue a Remedial Notice requiring the hedge to be cut back to a specified height.
13. The Council will write to the owner of the hedge asking if they intend to comply with the Remedial Notice. If the owner will not comply the Council can proceed to court action. Where the hedge owner’s personal circumstances make it difficult to have the hedge cut back the Council can take ‘direct action’. This means it can draw up a plan of works and instruct a contractor to do them. If a hedge owner complies with a Remedial Notice the Council cannot take further enforcement action.

Was there fault by the Council

14. Overall, the Council has acted in line with procedures. However, it did not update Mrs D about why work was suspended in 2021 as result of the covid-19 pandemic. I would expect some communication with Mrs D explaining why action had been put on hold. That did not happen.
15. In respect of the Council’s handling of this case I consider it acted correctly and in line with government guidance and legal advice. Once the six-month hiatus, resulting from the Planning Inspectorate’s decision, ended the Council was prompt to pick up the case and pursue the neighbour. It took the matter to court and was clearly committed to enforcement action. It had to take account of the neighbour’s circumstances and, as a result, decided to instruct contractors to do the works. Once lockdown restrictions eased it again pursued enforcement. It only was after the neighbour removed a tree and cut back another two the Council’s legal counsel advised no further enforcement could be taken at that point. The Council has concluded there is no longer a high hedge to enforce. Mrs D says there is still a high hedge and disagrees with the Council’s decision. The Ombudsman will not question the merits of decisions where there is no significant fault by the Council: that applies to this case.

Did the fault cause an injustice

16. Mrs D was left without an update during the lockdown period in 2021. I do not see this resulted in a significant injustice that warrants redress. It remained open to Mrs D to ask the Council for an update is she was concerned and there is no record of her doing so.

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Final decision

17. I have upheld the complaint (because of one fault) and completed the investigation.

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Parts of the complaint that I did not investigate

18. The Ombudsman expects a complaint to be made within 12 months of the matters arising. I am not looking at events dating back to 2017.

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Investigator's decision on behalf of the Ombudsman