The Ombudsman's final decision
Summary: Mr C said the Council was at fault for failing to make his neighbour prune his hedge. The Council was not at fault. Any delays were not caused by the Council.
The complaint
The complainant, Mr C, says the Council was at fault for its failure to make his neighbour, Mr D, prune his hedge after the Council and the Planning Inspectorate ordered him to do so. He says the Council was responsible for: Delay or a failure to take action, A failure to follow its own procedures, Broken promises.
Mr C says this fault caused him injustice because he suffered a relapse of a stress related condition. His sunlight was blocked and his television signal was interrupted. He says he took time and trouble pursuing the Council. He says the Council failed to prevent Mr D from pruning his hedge in a ‘malicious’ fashion which made matters worse.
What I have investigated I have investigated Mr C’s complaint which is about matters relating to his neighbour’s hedge. At the end of this decision, in points 47 to 49, I have set out the parts of Mr C’s complaint which I have not investigated.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I considered the information Mr C submitted with his complaint. I made written enquiries of the Council and considered the information it sent in response.
Mr C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should happen Hedges and antisocial behaviour legislation The Antisocial Behaviour Act 2003, Part 8, deals with high hedges. A high hedge is one which is: Growing on someone else’s land, Made up of a line of two or more trees or shrubs, Is evergreen or mostly evergreen, Is over two metres tall and Is a barrier to light or access, (even if there are gaps) (Anti-social Behaviour Act 2003, s.65, Government guidance on high hedges) Once a person has taken all reasonable steps to persuade their neighbour to reduce the height of a hedge, they can ask their local authority to issue a remedial notice (‘RN’) requiring the neighbour to reduce its height. The local authority may charge a fee for this action. (Anti-social Behaviour Act 2003, s.68) The RN must state that a complaint has been made, identify the hedge which must be reduced in height, state what height it must be reduced to, the date by which it must be done and the consequences of a failure to comply. (Anti-social Behaviour Act 2003, s.69) There is a right of appeal against RNs to the Planning Inspectorate which can uphold, vary or revoke the RN. (Anti-social Behaviour Act 2003, s.71) To comply with the RN, a hedge owner must reduce the hedge to the height specified in the RN. If a hedge-owner fails to comply, councils can carry out works themselves and charge the owner.
The legislation does not cover damage caused by the roots of hedges. It does not cover lines of trees which have gaps in them which allow light to pass through. The Government’s guidance says, “There are no fixed rules on the size of gaps. But a hedge with gaps at more than 2 metres above ground level that significantly affect its overall effect as a barrier to light or access is not a “high hedge” and, therefore, you cannot complain to the council about such hedges under this procedure”. (Anti-social Behaviour Act 2003, s.66 and Government guidance on high hedges) The government guidance also states, “the legislation doesn’t allow councils to deal with every problem that might be caused by hedges. The council can’t, for example, take into account…that worrying about a hedge is making you ill.”
It is an offence to fail to comply with an RN. Failure to comply with an RN may result in prosecution in the Magistrates Court and a fine of up to £1000. (Anti-social Behaviour Act 2003, s.69) Birds The Wildlife and Countryside Act 1981 made it an offence to kill, injure or take any wild bird or to take damage or destroy any nest that is either in use or being built. It is also an offence to disturb some species of birds while they are nesting.
What happened Mr C lives in the Council’s area. His neighbour, Mr D, had a high hedge along their shared border. Mr C says he asked Mr D to trim the hedge but for seven years. Mr D refused and it grew to an average height of seven metres and 11 metres in places.
Mr C says this caused him increasing problems. The hedge was only 3.6 metres from his kitchen window and he received no morning light. It also disrupted his television signal and cast his garden into near constant shadow.
Mr C contacted the Council’s forerunner, East Dorset District Council, in 2018 and asked it to take action against Mr D. It served Mr D with an RN requiring him to reduce the height of the hedge to 3 metres. It said that, if he did not do so, the Council had the power to do the work and charge him.
In April 2019, the Council was created and took over responsibility for the RN and any enforcement action of it that might become necessary.
Mr D appealed the RN to the Planning Inspectorate. Mr C says that Mr D and his tree consultant made misleading statements at the appeal. For example, Mr D said that he had, in the past, maintained the hedge well. Mr C says he never maintained it at all.
The appeal was decided in late-February 2020. The Planning Inspector did not allow the appeal but varied the terms of the RN to require Mr D to reduce the hedge’s height to 5 metres within one year, by late-February 2021, then allow a one-year recovery period before reducing it to 3 metres by February 2022. It also required Mr D to reduce the hedge’s length from 20 metres to 6 metres by late-February 2022.
Mr D failed to carry out the first phase of the operation by late-February 2021. When the Council asked him to do so once this deadline had passed, he said he could not as it was bird nesting season and it would disturb nesting birds.
Mr C contacted the Council on several occasions in spring and summer 2021 pressing it to take action to make Mr D prune the hedge or to carry out the work itself. He corresponded with the Council’s chief tree officer, Officer O.
Mr C says he believes Officer O tried hard to get Mr D to comply with the RN but he was unsatisfied with the Council’s response overall. In May 2021, he complained to the Ombudsman. However, he did not first complete the Council’s internal complaints procedure. We, therefore, asked Mr C to complain to the Council and allow it to deal with his complaint. It did so at the end of July 2021.
In its complaint response, the Council said that, while it had great sympathy with Mr C’s situation, it did not uphold his complaint. It said that: Mr D had said he could not currently prune the hedge because it was bird nesting season. The Council had asked Mr D to check the hedge for birds as, if no nests were present, the work could be carried out.
Mr D had been obstructive.
Mr C had said he appreciated the Council’s tree officer’s work on the matter.
If the Council was to use its enforcement powers, this would take time, as it would have to go through legal services and finance and this might, actually mean that the process took longer to complete.
The letter said, “In conclusion, I have great sympathy with your situation, and apologise that it has taken so long for the work on the hedge in question to be undertaken. I agree that there is a need for the Council to agree clearer processes to avoid such delays in future, and will work with colleagues in enforcement and legal to develop robust protocols to achieve this.”
Also in late July 2022, Mr D employed contractors to prune the hedge. Officer O attended on the second day of work but Mr C says, Mr D refused to allow the contractors to talk to him. The contractors returned in early August to complete the job. Mr C says that the contractors reduced the hedge’s height as was required by the RN but says the hedge was also thinned substantially so that it no longer provided a barrier between the two properties.
Mr C wrote to the Ombudsman again shortly after the contractors’ second visit. He changed his complaint. He now said: Mr D had engaged in ‘malicious compliance’, by complying with the terms of the notice in a way that was ‘an act of revenge’ for his efforts to get Mr D to reduce the hedge’s height.
Mr D had moved the fence along the border so that it now encroached onto Mr C’s property. He says that Mr D has done this to other neighbours before.
Mr D had frequently been threatening and abusive to him and other neighbours and the Council had been aware of this and had done nothing. For example, on one occasion, Mr D had thrown water at him.
Was there fault causing injustice?
Delay or a failure to take action Mr C is understandably frustrated by the fact that it took so long for Mr D to comply with the RN. However, the question for me is whether the Council was responsible for any of the delay. I have found that it was not.
After receiving the RN, Mr D appealed. The Planning Inspectorate did not issue its appeal decision in late February 2020. Clearly, the Council could not require Mr D to prune his hedge until the appeal had been decided.
The Planning Inspector ruled, in late-February 2020, that Mr D should make the first cut of the hedge within one year; by late-February 2021. No enforcement action was possible, therefore, until it was clear that Mr D had failed to comply.
Mr D did not comply. The Council pursued him and asked him to do so. He told the Council that he could not do so during bird nesting season. It is illegal to disturb some nesting birds during nesting season. The Royal Society for the Protection of Birds says nesting season runs from March until August.
It is clear from the information provided by the Council that Officer O believed Mr D was using nesting season as a pretext to avoid carrying out the work. He wrote to colleagues raising the possibility of taking further action if Mr D did not comply at the end of nesting season. But it is also clear that Officer O believed that bird nesting season was a valid reason for delay if there were birds nesting in the hedge. If so, he believed that enforcement would not be possible until it was over.
Officer O continued to correspond with Mr D’s tree consultant who told him that Mr D intended to carry out the works. Officer O questioned whether there were, in fact, birds nesting in the hedge and told the consultant that the work could be completed during bird nesting season if there were no birds there.
The Ombudsman does not generally find faut with councils for decisions made by professionals in the course of their duties. In this case, Officer O believed that enforcement action would not be possible during the nesting season. I cannot find fault with the Council for that decision. And Mr C has accepted that Officer O did all he could on his behalf although he believes the Council as a whole could have done more.
Mr C says the Council used the COVID-19 pandemic as an excuse for inaction. The Ombudsman is clear that the pandemic did not excuse councils from carrying out statutory functions. However, we have taken the view that delays in fulfilling certain functions are not to be viewed as fault, if delay is justified. It is clear, though, that in this case, COVID-19 was not the main reason for any delay.
Mr C says the Council could have carried out the work itself in February 2021. It is not clear how it could have done so as there was only a week between the Planning Inspectorate deadline in late February and the start of the nesting season. It was also a time when COVID restrictions were in place.
Over the summer, Officer O contacted Mr D and his tree consultant often and he was preparing for the possibility that Mr D would not carry out the work at the end of nesting season. However, in the event, Mr D carried out the works at the end of July 2021, before the nesting season was over.
For these reasons, even though the Council apologised to Mr C for the delay in carrying out the works, I do not find the Council at fault.
Mr C now says Mr D complied with the notice in a malicious fashion by stripping the hedge and destroying his privacy. That is not a matter I have to decide on. Whatever Mr D’s motivation, the Council was not at fault. The Council had issued an RN requiring Mr D to prune his hedge. It was not involved in any ill-feeling between Mr C and Mr D.
Once Mr D had had the works carried out, the hedge was no longer in breach of the RN. Mr D had complied.
Lack of policy The Council says that it did not, at the time covered by this complaint, have a policy on how to conduct enforcement of RNs. In its response to Mr C, it said that it accepted that there was a need for the Council to agree clearer processes to avoid such delays in future.
There is, however, no requirement for a council to have a policy on high hedges. And, in my view, if the Council had done, the outcome would have been no different. For that reason, I do not find the Council at fault for its failure to have a policy to cover this area.
Broken promises I have seen no evidence that the Council broke promises to Mr C. Mr C says he was grateful for Officer O’s efforts. Officer O worked on behalf of the Council.
Final decision
I have not found the Council to be at fault. I have closed my investigation.
Parts of the complaint that I did not investigate Mr C says Mr D has taken part of his garden by moving a boundary fence. This is not a matter for the Ombudsman as it is a private law matter.
Mr C makes various claims that Mr D and his tree consultant misled the Planning Inspectorate. This is not a matter for the Ombudsman which has no jurisdiction over the Planning Inspectorate or Mr D’s tree consultant.
Mr C also says the Council lacks an adequate Quality Management System. He says this is the ‘root cause’ of any failures in this case. This is not a matter which I should investigate as it would not be proportionate to do so and, in any event, I have not found the Council at fault.
Investigator's decision on behalf of the Ombudsman