The Ombudsman's final decision
Summary: Mr X complained the Council failed to maintain a hedge that backs onto his property. Mr X said the Council also misled him about its responsibilities. Mr X says this has caused him considerable upset and distress. We do not find fault with the Council’s approach to determining liability for hedge maintenance. We find fault with the Council for failing to maintain the hedge, for failing to assess Mr X’s claim of damage, and for providing him with incorrect information. We recommend the Council apologise to Mr X, make a payment to reflect the uncertainty caused, and assess his claim of damage.
The complaint
Mr X complains the Council has failed to correctly assess who is responsible for maintaining a hedge that backs onto his property. Mr X believes the Council deliberately misled him to avoid its responsibilities and says this has caused him considerable upset and distress.
What I have investigated I have investigated whether the Council has correctly assessed its responsibility for the hedge in question. I have also investigated whether the Council has maintained the hedge as it said it would and the advice it has given Mr X.
I have not investigated events that took place prior to June 2020. I have explained why at the end of this decision.
The Ombudsman’s role and powers
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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 spoke to Mr X and considered all the information he provided. I also considered all the information the Council provided.
Mr X and the Council had an opportunity to comment on a draft decision and I considered their comments before making a final decision.
What I found
Relevant law and guidance Where a hedge overhangs or obstructs a road or footpath to which the public has access, a council may serve notice to the owner of the hedge or the landowner to cut it back within 14 days. (Highways Act 1980, section 154) If the hedge is planted on Council land, then the Council is the owner and should maintain it.
It is an offence to take, damage, or destroy the nest or eggs of any wild bird. (Wildlife and Countryside Act 1981, section 1) Department for Environment, Food & Rural Affairs (DEFRA) guidelines explain individuals must always try to avoid harming birds, or to use measures which do not kill or injure them when cutting back hedges. They explain, in most cases, individuals should be able to avoid harming wild birds by timing their work to avoid the breeding season.
Government guidance for high hedges and resolving neighbour disputes explains a person can trim back branches or roots that cross into their property from a neighbour’s property or a public road. It states you can only trim up to the property boundary and if you do more than this, your neighbour could take you to court for damaging their property.
Your neighbours are responsible for maintaining their hedges so they do not, for example, damage your property or grow too high. If they do damage your property, your neighbour may be liable and any action for damage would be a civil matter for the courts.
What happened Mr X has lived in his property for around 20 years. He says, until August 2019, he voluntarily maintained a hedge on Council land that backs onto his property. Mr X then contacted the Council to say he could no longer do it.
The Council trimmed the hedge in May 2020.
Mr X wrote to the Council on 17 September and 21 September to explain the hedge was now damaging his property and needed maintenance. He informed the Council that he would employ a contractor to carry out the work if the hedge was not trimmed by 6 October. He said he would seek reimbursement through the courts.
The Council responded on 21 September to explain it would cut the hedge during its autumn work programme. It explained Mr X could cut back any growth overhanging his side. And, if this was left in a safe location at the bottom of the footpath, the Council would arrange for removal.
The Council did not cut the hedge in autumn 2020.
Mr X contacted the Council in June 2021 to ask it to cut the hedge as it had become overgrown and was encroaching on his property. Mr X explained he needed it cut back so he could carry out maintenance on his own fence and it had been more than a year since the last cut.
The Council responded to Mr X the following week, to explain it would begin hedge cutting across the borough in August, to comply with DEFRA guidelines. It said Mr X could cut back any growth encroaching onto his property.
Mr X wrote to the Council again that week, providing a photo of the hedge, and asking the Council to arrange for it to be cut. Mr X said he would arrange for a contractor to carry out the work if the Council did not do it by 28 June.
On 16 June, Mr X complained to the Council. He explained: The Council’s hedge had encroached into his boundary and was damaging his property.
It would cost £300 for Mr X to arrange the hedge cutting himself.
He had cut the hedge himself twice each year for the last 17 years but was no longer able to do this.
Mr X wrote to the Council again on 22 June to reiterate that he was unable to maintain the hedge himself. He also said he would employ a contractor to carry out the work but would need the Council to reimburse the costs.
The Council responded to Mr X’s complaint on 23 June. It explained: It had already informed Mr X that, to comply with the Wildlife and Countryside Act, it does not trim hedges between 1 March and 31 August.
The previous year, it had agreed to check for nesting birds and reduce the height of the hedge to around five foot, as a one-off, in May so Mr X would be able to maintain that himself.
Work was scheduled for September and if Mr X employed a contractor to trim the hedge before that the Council would not be liable for the cost.
The Council is only responsible for ensuring the footpath is passable safely and this seemed to be the case.
A member of the Council’s neighbourhood services emailed Mr X on 25 June 2021. They explained it was their understanding the inside face of the hedge and its height would be the responsibility of the property owner. However, they also explained they had no legal training, and the legal interpretation may be different so they would need to pass that to legal services for review.
That same day, Mr X also sent emails directly to the Council’s borough solicitor and her personal assistant to find out what the Council’s legal position was. I have seen no emails from them responding and providing the Council’s legal position.
Mr X says he then spoke to someone in the Council’s legal services team. The person informed him the Council had a clause in relation to the property since its construction. He was advised this clause placed the responsibility on the homeowner to maintain the hedge. Mr X therefore wrote to the Council on 26 June to apologise for previous emails and retract his complaint, he outlined the content of the phone call in that email.
Mr X wrote to the Council again on 6 July. He explained he had cut the Council’s hedge at a cost to himself and placed the cuttings on the Council’s land – the footpath – so it could have these removed.
On 7 July, Mr X submitted another complaint to the Council. He explained: He was having problems trying to get the Council to cut its hedge.
The hedge damages his property and prevents him from maintaining his boundary fence.
The hedge was maintained by the Council when the previous owners had lived at the property.
Due to an administrative oversight, the Council did not respond to this complaint as it linked it to the complaint Mr X had recently retracted.
Mr X wrote to the Council to complain again on 23 September. He explained: He has maintained the hedge for 17 years but was no longer able to do this.
The hedge had not been cut by the Council since May 2020.
He had now consulted a solicitor who had said it was the Council’s responsibility to cut the hedge.
The Council should be ashamed for trying to mislead Mr X.
Mr X again wrote to the Council again on 1 October and 4 October to ask it to trim the hedge.
The Council’s operatives trimmed the hedge on 5 October. Both sides and the top of the hedge were cut, and Mr X emailed the Council to thank it for this.
On 26 October the Council responded to Mr X’s complaint. It said: Although there had been confusion over the ownership and responsibility for the hedge, it was now clear the Council was responsible for keeping the side facing the footpath clear and Mr X was responsible for the maintenance of the side facing his garden.
The Council would continue to maintain the side of the hedge facing the footpath as part of its autumn maintenance program.
It was sorry for any misinformation Mr X was given, but it was unable to locate the conversation with legal services where he was told there was a clause in place giving responsibility of the hedge to the homeowner.
The legal advice Mr X had received is in line with the Council’s position that it is only liable for the maintenance of the side of the hedge that backs onto the footpath.
It was satisfied it had met its maintenance responsibilities and would continue to do so.
Mr X was now free to bring his complaint to the Ombudsman.
Mr X brought his complaint to the Ombudsman in November 2021 The Council has told us: Hedge cutting is not a statutory function of the Council other than to ensure safe passage through footpaths and highways. Where hedges are on Council land, the Council will take responsibility for removing growth that encroaches on footpaths or highways.
Due to many hedge related issues being very specific dependent on location and ownership, the Council does not need to and does not have a policy on maintaining hedges.
Mr X previously chose to maintain the boundary hedge to ensure it did not encroach on the public footpath so the Council did not maintain it during this period. However, it would have responded to any complaints by the public if the hedge had encroached on the footpath.
Inside the boundary hedge, Mr X has erected a picket fence and a further barrier of hedge which has now matured and formed a second hedge within the boundary. The Council has no responsibility to maintain any growth onto private land.
Since Mr X told the Council he was no longer able to maintain the hedge, it has maintained the hedge in line with its usual responsibilities. This includes an annual trimming of the side of the hedge facing the footpath, and the top of it, but not the section that grows on Mr X’s property.
In response to a draft decision, the Council explained: It did not trim the hedge in autumn 2020, however it had recently been cut back in May 2020. The Covid-19 pandemic meant the area was placed in a local lockdown during September 2020 and this had an impact on staff numbers and productivity. However, other than an email on 5 October 2020 requesting the hedge height be lowered, Mr X did not complain about the hedge cutting until June 2021.
It has no record of Mr X speaking to anyone in legal services. It says the paperwork needed to comment was not received until August 2021, after Mr X had said he received the advice. The Council feels Mr X has misinterpreted an email from a member of its neighbourhood services team.
It is willing to formally assess and respond to Mr X’s allegation of damage caused by the hedge but does not feel it previously failed to do this as it had previously carried out site visits.
Analysis Failure to maintain the hedge Between June 2020 and when Mr X brought his complaint to us in November 2021, there were two cycles of the Council’s autumn maintenance program. This means the Council ought to have trimmed the hedge twice – once in autumn 2020 and once in autumn 2021.
The Council trimmed the hedge on 4 October 2021, but it does not appear to have trimmed it in autumn 2020 as it had told Mr X it would. This is fault.
The Ombudsman is sympathetic to the extra pressures put on the Council by the Covid-19 pandemic. However, the Council emailed on 21 September 2020 – during the local lockdown the Council has referred to – confirming it would maintain its hedges as planned in its autumn work programme. Failure to do so is fault.
While the Council was at fault for failing to trim the hedge in autumn 2020, the injustice to Mr X seems to be minor uncertainty. I say this because he did not chase the Council during the autumn and only complained of damage in June 2021. The Council then quickly informed Mr X it would carry out the work as part of its autumn maintenance programme, which it did.
Ongoing maintenance of the hedge The Council has agreed it is responsible for maintaining the top of the hedge and the side that faces the public footpath. It has said it will carry this maintenance out annually as part of its autumn maintenance program.
Although Mr X may previously have maintained the hedge twice annually, it is up to the Council to decide how often it wishes to trim its hedge. If the hedge becomes overgrown and obstructs the footpath at any point between trims, either Mr X or any member of the public can raise this with the Council to address.
I do not find fault with the Council’s decision to maintain the hedge annually going forward.
Assessing liability for maintaining the hedge Mr X says he was told by the Council’s legal services there was a clause making the homeowner liable for maintaining the hedge. The Council has apologised for any misinformation given but has been unable to locate evidence of this conversation.
Where evidence is incomplete or conflicting, we can make findings based on the balance of probabilities. This means we weigh up the available relevant evidence and base our findings on what we think is most likely to have happened.
I have seen no evidence the Council’s legal department responded to Mr X prior to him withdrawing his complaint on 26 June 2021. However, the email he was sent on 25 June 2021 did give incorrect information about the Council’s responsibilities and this was not corrected until much later. Although the email made it clear this was not legal advice, it was still incorrect information. This is fault causing injustice to Mr X as it created further uncertainty for him. It also meant he maintained the hedge at cost to himself in summer 2021 which he may not have done had he been given correct advice.
The Council has explained its decision to maintain the top of the hedge and the side that faces the public footpath is because these sections of the hedge are on its land. It says its decision not to maintain the other side is because this part of the hedge grows on Mr X’s property. I find no fault with how the Council has made this decision.
Damage to Mr X’s property Throughout his dealings with the Council, Mr X explained the overgrown hedge was damaging his property. The information I have seen so far suggests the Council has not responded to this point even after accepting it was liable for maintaining the hedge. This is fault which would have caused injustice to Mr X as it created further uncertainty.
To remedy this injustice, I find the Council ought to assess and respond to Mr X’s claim of damage. If Mr X disagrees with the Council’s conclusions, he would then be free to bring a claim through the courts.
Agreed action
To remedy the injustice identified above I recommend the Council, within one month of our final decision: Apologise to Mr X for failing to trim the hedge as promised in autumn 2020, for providing incorrect information, and for failing to assess his claim of damage; Pay Mr X £150 in recognition of the uncertainty he was caused by the faults identified above; Assess and respond to Mr X’s claim of damage to his property by the Council’s hedge.
The Council has now agreed to these recommendations.
Final decision
I find fault with the Council for not trimming the hedge in 2020 as it said it would. I do not find fault in the way the Council decided which sections of the hedge it was responsible for maintaining. The above recommendations are a suitable way to remedy the identified faults.
The Council accepted my recommendations and I have completed my investigation.
Parts of the complaint that I did not investigate I have not investigated whether the Council was at fault for failing to maintain the hedge prior to June 2020. This is because any complaint about matters arising before June 2020 is late, Mr X could have complained to us sooner but did not do so and there is no good reason to exercise discretion.
Investigator's decision on behalf of the Ombudsman