The Ombudsman's final decision
Summary: Mrs X complains the Council failed to properly issue a High Hedges remedial notice. We found no fault by the Council in its consideration of Mrs X’s request to issue a new notice.
The complaint
Mrs X complains that there was fault by the Council in its handling of a High Hedges complaint. She says the Council’s remedial notice is incorrect and it should reissue it because she says she is not protected as she expects.
What I have investigated I have investigated how the Council considered Mrs X’s request to reissue the remedial notice. I cannot consider the original notice because Mrs X has appealed about it as I explain in paragraphs 26-29.
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 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) If we are satisfied with an organisation’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 have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Mrs X complained to the Council regarding the height of her neighbour’s hedges in 2019. She paid a fee for the Council’s consideration of the matter.
Part 8 of the Anti-social Behaviour Act 2003 allows local councils to deal with complaints about high hedges whose area contains the land on which the hedge is situated.
The Council considered whether the height of the hedges was causing an adverse effect on Mrs X’s enjoyment of her home and garden. The Council assessed the matter and decided to issue a high hedges remedial notice. This required the neighbour to reduce the hedge height. The “initial action” section of the notice stated that the hedge owner must reduce the height to 2 metres.
The “preventive action” section of the notice stated the owner must “maintain the hedges so that their height at no point exceeds 2.5 metres.” This height was the Action Hedge Height (AHH) or the height above which a hedge is likely to block too much light.
In a further “informative” section of the notice the Council stated that: “It is recommended that the hedges are cut back annually to a height of 2 metres. This allows room for the hedges to regrow between annual trimmings and still not exceed a height of 2.5 metres.”
Mrs X appealed to the Planning Inspector regarding the Council’s decision because she said that the works specified in the notice did not go far enough. She said that the AHH of 2.5 metres was excessive and would cause an unreasonable loss of light. The Planning Inspector dismissed Mrs X’s appeal.
Mrs X’s neighbours reduced the height of the hedge.
However, in April 2022 Mrs X asked the Council to inspect the hedge because she said her neighbour was not complying with the remedial notice. A new officer visited and advised Mrs X that the Council could not insist or enforce an annual prune to 2 metres because the reference to an annual prune was in the “informative” section. He said that in his view the reference to the 2 metre prune should have been entered in the “preventive action” section.
Mrs X said the Council started drafting a new notice which showed the annual prune to 2 metres in the preventive section. However, at the final stage the Council sought its own legal advice and decided it would not issue a revised notice.
Mrs X complained about the Council’s decision. The Council responded explaining the reasons for its decision. It said its legal advice considered it had followed national guidance and it was “not convinced anything would actually be gained by requiring pruning back to 2 metres at least annually”. It said that the overall aim was to ensure the hedge height was below 2.5 metres, rather than maintaining it at 2 metres.
Mrs X complained further in November 2021. She said the first officer had blatantly misled her because he said all parts of the notice were enforceable, including the informative section. She also complained the Council said that nothing would be gained in issuing a new notice. She said it should not be a case of the Council gaining something. Instead, the Council should ensure that the protection from the High Hedges legislation should be managed to an expected standard. She could not see why the Council would allow the hedge to grow to 2.5 metres and rely on the goodwill of the owners to cut the hedge back regularly. She presumed that if the hedge exceeded 2 metres she could make a new High Hedges complaint and would pay the Council a further fee, making it a lucrative source of income for the Council.
The Council did not acknowledge Mrs X’s complaint within 5 days in accordance with its procedure. However, it replied within 3 weeks advising that the original remedial notice required the owner to maintain the hedges so that their height at no point reached over 2.5 metres. This was the trigger point for the Council to take action and would be enforceable. It said that the informative section just gave advice how that height could be achieved. The Council said it should only withdraw or reissue a notice if there was a good reason to do so. In its view adding a formal requirement to prune the hedge at set times on an annual basis did not further that purpose and appeared to exceed what was necessary. It said that the recipient of the notice could appeal. It concluded that the notice was satisfactory and should remain in place. It advised Mrs X she could contact the Council if the trigger level was reached and that she would not have to pay again.
Mrs X complained further that the Council had ignored her complaint about the competence of the original officer. She said he had misled her and it was now too late to challenge this. She said that the Council’s cover letter explaining its decision in 2019 stated that “an action height of 2.5 metres will allow an initial and recurring prune to two metres whilst still provide a sensible margin or buffer for annual growth.” In her view the Council had intended that the hedge should be returned to 2 metres annually. But due to the error in placing the pruning requirements in the informative section the Council could not enforce this. She said the government guidance regarding model notices said that Councils should specify in the preventive section “the long term management of the hedge necessary to prevent problems.”
Mrs X also complained that the Council had not kept to its complaint procedure because it had not acknowledged her complaint within 5 days and she had to chase a response.
Mrs X chased a response to her stage three complaint in January 2022 because the Council had not acknowledged it or replied within its timescales. She said she felt let down and ignored.
In February the Council replied at stage three, 3 weeks beyond its timescales. It apologised for its delays in responding and noted that it had not met the expected standard. The Council confirmed its view that the original notice met its aim of restricting the hedge height in future. Revising the notice formally to include set times to prune irrespective of growth rate did not further this purpose. The owner could challenge this and that could disadvantage Mrs X. It had reviewed its notice and decided it should remain. But Mrs X could request investigation if the hedge height reached over 2.5 metres and she would not need to pay a further fee.
Analysis Mrs X says that the Council did not properly consider whether it should issue a new remedial notice. I do not agree with Mrs X’s view because the Council did consider the matter, seeking legal advice and considering whether there were good reasons. It did not conclude that it should revise or reissue its notice. I have not seen evidence of fault in the Council’s decision making and therefore I cannot question the outcome as I explain in paragraph 3.
I note Mrs X says the Council was wrong to consider what would be “gained” by issuing a new notice. However, I consider this refers to whether there would be any practical benefit to Mrs X or the Council, rather than a financial advantage to the Council. The Council noted there could in fact be disadvantages such as the potential for the owner to successfully appeal.
Mrs X complains that the Council did not respond according to its complaints procedure. The Council has accepted that it did not respond according to its procedure. It has apologised for this. I consider this is a suitable remedy.
Final decision
I have not found fault by the Council. I have completed my investigation and closed the complaint.
Parts of the complaint that I did not investigate The Planning Inspector acts on behalf of the responsible Government minister.
Mrs X appealed to the Planning Inspector regarding the Council’s decision on her High Hedges complaint. She said the Council’s notice did not go far enough.
We cannot investigate a complaint if someone has appealed to a government minister. (Local Government Act 1974, section 26(6)(b), as amended).
I cannot therefore consider the remedial notice and its contents because the notice was, or could have been appealed to the Planning Inspector.
Investigator's decision on behalf of the Ombudsman