The Ombudsman's final decision
Summary: We will not investigate this complaint about overgrown bamboo. This is because there is not enough evidence of fault by the Council to justify investigating this complaint.
The complaint
Miss Y complains the Council is failing to help her to remove and prevent growth of bamboo from her neighbour’s garden into her own.
Miss Y says the large growth of the bamboo is causing her distress and a nuisance as she feels it is invading and spoiling her garden. It is also covering a septic tank in her garden belonging to the neighbouring property which she believes is attracting rats.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Miss Y and the Council provided and the Ombudsman’s Assessment Code.
My assessment
Miss Y originally contacted the Council about a repeated rat problem relating to a septic tank in April 2021. The Council visited her property and inspected the land and septic tank in April and May. During these visits the Council was able to see the bamboo Miss Y has complained about, albeit at that time it was considering the pest issue.
In September 2021, Miss Y instructed a company which specialised in assessing and removing invasive plants. This company wrote a report, which she provided to the Council, about the bamboo and its removal. Given that the bamboo originated from the neighbour’s property, rather than Miss Y’s and had grown underneath the septic tank belonging to the neighbour, it concluded that removal of the bamboo, particularly its roots, would be challenging. The report included several photographs of the plant as it had entered Miss Y’s property. It estimated the costs of this work to be approximately £6,000.
During our consideration of a previous complaint relating to the pest control issue, Miss Y asked us to consider this complaint. As it had not been raised with the Council as an issue, we asked Miss Y to complain to the Council. Miss Y did this in February 2022.
The Council responded to Miss Y’s complaint. It said the bamboo would not fall into the remit of a statutory nuisance and as a result it was unable to act in the problem. It advised Miss Y to seek independent legal advice as the problem would be consider a civil matter between her and her neighbour.
Analysis The Environmental Protection Act 1990 sets out issues which may be considered as statutory nuisances in which the Council would have a duty to investigate. In this case, the Council has considered the legislation as referred to in its complaint response and found that the bamboo growth would not fall into the remit of a statutory nuisance. It has said it cannot therefore act in the matter. It has made this decision after visiting the property to inspect the septic tank, which according to the photographs Miss Y has provided, is covered in the bamboo Miss Y complains about.
As the Council has properly considered the complaint with reference to relevant legislation and its experience of the site before forming its decision that it cannot act in this case, there is not enough evidence to suggest fault to justify us investigating. Consequently, we will not investigate this complaint.
Final decision
We will not investigate Miss Y’s complaint because there is not enough evidence of fault to justify investigating this complaint.
Investigator's decision on behalf of the Ombudsman