Summary: Mr X complained about the Council’s decision in May 2020 not to enforce a breach of a high hedge remedial notice it issued to his neighbour in 2016. The Council was not at fault for not taking enforcement action. However, it was at fault for not issuing the remedial notice in line with the guidance which meant it was unenforceable. There is also no record it told Mr X it would waive the application fee if he decided to make a new high hedge complaint for over 12 months. The Council agreed to apologise to Mr X, pay him £100 and make the recommended service improvements.

The complaint

1. Mr X complains the Council has failed to:
• enforce the high hedge remedial notice it issued to his neighbour in 2016; and
• confirm what height of hedge it would enforce to, if it cannot/will not enforce the height from the remedial notice.
2. Mr X says the Council’s lack of action since May 2020 means the hedge is growing back to its original height which the Council in 2016 agreed was too high. The hedge is also causing light loss in his utility room. Mr X also says he spent time in complaining about his neighbour’s high hedge and chasing the Council for enforcement action.
3. Mr X would like the Council to enforce the original remedial notice that it issued in 2016. Additionally, he would like the Council to take direct action and cut the hedge down to the required height, if his neighbour is not willing to comply with the notice.

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The Ombudsman’s role and powers

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. As part of the investigation, I have:
• considered the complaint and Mr X's comments;
• considered the comments and documents the Council provided to Mr X.
7. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

High Hedges

8. The Anti-social Behaviour Act 2003 (‘the Act’) gives local authorities powers to deal with high hedges considered anti-social.
9. The Act allows someone to complain to their local council if they consider a neighbouring hedge, because of its height, adversely affects their “reasonable enjoyment” of their home.
10. The law defines a ‘high hedge’ as one formed “wholly or predominately by two or more evergreens” and rising “to a height of more than two metres above ground level”.
11. The Act gives local authorities the power to serve a ‘remedial notice’ requiring the owner of a hedge to cut it back. However, before the Council does this it must consider:
• if the complaint is one it should accept; and
• if the hedge complained about is one that “is adversely affecting the complainant’s reasonable enjoyment” of their home.
12. Remedial notices define how the hedge should be managed to give effect to the Council’s decision and restore a suitable balance between the amenity enjoyed by the complainant and the hedge owner. The remedial notice is relevant to the land in question rather than to an individual, so remains in force even if the land is sold. The remedial notice will explain the action needed and any further action to prevent the problem recurring.
13. The Council must take account of all views and relevant factors and assess each case on its own merits. The Council may order the hedge owner to remedy the problem by, for example, reducing the height of the hedge and maintaining it at the lower level.
14. In this case the Council agreed this was a high hedge in accordance with the Anti-social Behaviour Act 2003 (the Act), that adversely affected Mr X’s enjoyment of his property.

Enforcement Procedures

15. Each council determines their policy and approach to enforcing remedial notices, often this will depend on resources.
16. Before deciding to take enforcement action, the Council will often consider the degree of harm the alleged failure to comply with the notice is causing. For example, failure to carry out the initial work necessary to remedy the adverse effects of the high hedge may be considered more serious than the failure to maintain the specified height between seasonal trims.
17. Government guidance says the Council should take the below steps when evaluating and deciding its enforcement action:
• acknowledge the receipt of allegation of failure to comply with the remedial notice;
• investigate the current facts and case history;
• prepare a report and submit it to the decision-maker, with a suggestion if enforcement action should be taken;
• record and implement the decision;
• tell the complainant what it decided;
• monitor the situation; and
• review the need for possible future enforcement action.

Background

18. In 2016 the Council investigated a complaint from Mr X about a high hedge at a neighbouring property. The Council used the formula set out in Government guidance (High Hedge Complaints: Prevention and Cure) and concluded the hedge needed to be trimmed. It issued a remedial notice to the neighbour requiring the hedge be cut back to a specified height. The remedial notice said that initially the neighbour should cut the hedge down to 6 metres. This took place in 2017.
19. After three years the Council was supposed to reassess the hedge, and if viable require the neighbour to cut it down further to 4 metres.

Events I have investigated

20. In January 2020 Mr X wrote the Council and provided photographs showing the hedge was again higher than 6 metres.
21. In May 2020 the Council reassessed the high hedge as per paragraph 19, wrote to Mr X and told him that:
• his neighbour took the initial remedial action and cut down the hedge, but said they would not carry out the second stage of the reduction;
• the hedge was viable and could be cut down further;
• the Council could not enforce a staged high hedge reduction. This was because of the guidance Matters Relating to High Hedges : Notes to Local Authorities issued in 2010 that said: “It may be decided that a hedge needs to be cut in stages (e.g. over a period of 3 years to address the risk of major cutting destroying the hedge). You should note that compliance with the individual stages cannot be enforced. It is only the final outcome required by the initial action that can be enforced if it is not completed by the end of the compliance period.”
• it could only enforce the 6 metre height of the hedge; and
• he could submit another high hedge complaint which would enable the Council to issue another remedial notice if needed.
22. In September 2020 Mr X contacted his MP and asked for assistance. The Council replied to this in February 2021 and told Mr X’s MP what it previously said to Mr X.
23. In February 2021 Mr X says his neighbour cut the hedge down to 7m. In the same month the Council went to Mr X and measured the height of the hedge from his property. It decided that the hedge measured 5.85 metres. Mr X disputed this measurement as he believes the Council should have taken the measurements from his neighbour’s property which is on lower ground, which would make the hedge higher than 5.85 metres. The Council confirmed that the difference in the height of the properties was taken into consideration when deciding the measurements.
24. At the end of the month the Council emailed Mr X and said that:
• Mr X’s neighbour was technically breaching the remedial notice; and
• the Council did not consider it in the public interest to take any enforcement action as the height of the hedge had significantly improved since his initial complaint.
25. In June 2021 Mr X complained to the Council. He said the Council misinterpreted the law about the hedge height it could enforce. He was also dissatisfied with the suggestion that he would have to submit and presumably pay for another high hedge complaint.
26. In early July 2021 the Council responded to Mr X’s complaint and said:
• it already explained that it did not consider taking enforcement action against his neighbour to be expedient or in the public interest;
• this decision was taken in consultation with the officer who originally worked on the case and the Council’s solicitor;
• the Council did not consider the reduced hedge height was causing significant harm to warrant taking direct action or starting litigation; and
• it would waive the fee for a new high hedge complaint if this was something that Mr X was still considering.
27. In late July 2021 Mr X escalated his complaint to the Council. He said the Council did not address all the points of his complaint, and despite admitting his neighbour was breaching the remedial notice it had not taken enforcement action.
28. At the end of July the Council issued its final response to Mr X’s complaint. It said the Council’s enforcement action was discretionary. It also said that decision to not enforce was based on the current circumstances and not based on the information from 2016.
29. After receiving the final response from the Council, Mr X was not satisfied with its actions, and he brought his complaint for the consideration of the Ombudsman.

Was there fault by the Council

Enforcement of the 2016 remedial notice

30. Overall, the Council has acted in line with procedures. However, it did not draft the remedial notice in line with the guidance that was already in place. This means the remedial notice is ambiguous and in 2020 the Council realised it could not enforce the second stage of works it required. We would expect the Council to be aware of how to word the remedial notice to allow it to take enforcement action if it was not complied with. That did not happen.
31. In May 2020 the Council tried to correct its mistake by asking Mr X to put in another high hedge complaint. The Council told us that it told Mr X there would be no change for a fresh high hedge complaint during one of its visits to his property in 2020. However, there are no contemporaneous notes evidencing this. The first mention of the Council not requiring payment for a new complaint appears in a letter the Council sent to Mr X dated July 2021. We consider this to be fault. We cannot say that Mr X would have sent another high hedge complaint sooner had he known there would be no charge for this service. We consider it likely contributed to his decision not to do it. Instead, he chased the Council to enforce the remedial notice already in place, which meant he spent avoidable time and trouble in chasing the Council to take action.
32. In respect of the Council’s handling of the alleged breach of compliance with the remedial notice I consider it acted correctly and in line with government guidance and legal advice.
33. The Council accepts that Mr X’s neighbour was breaching the remedial notice. Before deciding what enforcement action to take the Council followed the steps listed in paragraph 17. After the investigation, the Council decided it would take no further enforcement action. The Council has decided there is no public interest in enforcing the breach of a remedial notice. Mr X says there is still a high hedge and disagrees with the Council’s decision. The Ombudsman will not question decisions the Council has made without fault: that applies to the Council’s decision not to enforce the breach of remedial notice.

Confirmation of the height the Council would enforce

34. In May 2020 the Council told Mr X that it would only be able to enforce the height of the hedge that was required by the stage one works of the remedial notice, namely 6 metres. Mr X disagreed with this assessment and said the Council has misinterpreted the law.
35. Only a court could decide which interpretation of the law is correct, and this is not within the Ombudsman’s remit.
36. We understand Mr X considers the hedge is still too high, and he wants the Council to make his neighbour reduce this further to 4 metres.
37. The Council suggested that he could make another high hedge complaint free of charge, and this choice remains available to him. This is the appropriate way for the Council to reach a fresh decision on whether the hedge currently has an adverse effect on Mr X’s amenity.

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Agreed action

38. Within four weeks from the date of our final decision the Council will:
• apologise to Mr X for the error it made when it originally drafted the remedial notice; and
• pay Mr X £100 in recognition of the avoidable time and trouble he spent chasing the Council to enforce the existing remedial notice.
39. Within three months from the date of our final decision the Council will provide relevant officers with training and/or guidance to ensure they know the requirements of the Anti-social Behaviour Act 2003 and associated guidance, and draft remedial notices in accordance with it.

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Final decision

40. We uphold Mr X’s complaint and our investigation is now complete. The Council was not at fault for deciding not to enforce a remedial notice. However, the delay in letting Mr X know it would waive the fee for a fresh complaint led to him spending avoidable time and trouble in chasing the Council’s action. The Council was also at fault for not following the guidance when wording a remedial notice which meant it was unenforceable.

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Investigator's decision on behalf of the Ombudsman