The Ombudsman's final decision
Summary: Mr X complained the Council refused to carry out enforcement action against his neighbour for their high hedge. The Council was at fault for failing to record its decision to prioritise which planning and enforcement cases it considers and for failing to update its website to alert residents to the change in approach. This caused Mr X frustration. The Council will apologise and carry out staff training.
The complaint
Mr X complained the Council refused to carry out enforcement action against his neighbour for their high hedge. Mr X says this meant he had no recourse after his neighbour refused to reduce the height of the hedge.
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) 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 considered: all the information Mr X provided and discussed the complaint with him; the Council’s comments about the complaint and the supporting information it provided; and the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
Mr X 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
Relevant law and guidance Councils have the power to decide complaints about high hedges. A ‘high hedge’ is a barrier to light or access formed wholly or mainly by a line of two or more evergreen or semi-evergreen trees or shrubs more than two metres high.
Having received a valid high hedge complaint, councils decide: whether the hedge is, because of its height, adversely affecting the complainant’s reasonable enjoyment of their property; and (on finding it is), what action, if any, is necessary to deal with the problem and prevent it from recurring. This can include a remedial notice requiring the hedge owner to reduce its height.
The Ombudsman's Principles of Good Administrative Practice say councils should ensure they are open and accountable, including keeping proper and appropriate records.
What happened Mr X lives in a flat which is overlooked by a large evergreen hedge. He says the owner of the hedge, his neighbour, was unwilling to reduce its height and so he made a high hedge complaint to the Council.
The Council refused to act on Mr X’s complaint and refunded him the fees he paid. Mr X was unhappy and complained to the Council. It responded to say it was only able to work on the most urgent planning and enforcement issues and had to focus resources on cases where there may be harm to public health, highway safety, trees covered by protection orders or works to listed buildings.
In response to our enquiries and a previous draft decision, the Council said that before Mr X made his high hedge complaint, there had been an internal discussion between senior managers about how to prioritise planning and enforcement cases. That meeting had concluded the Council would not act on cases except where there may be harm to listed buildings, public safety or the environment. The Council said it did not have any minutes of the meeting or records of the decision-making process. It said the decision was made due to challenges filling planning and enforcement roles and a backlog of cases caused by the COVID-19 pandemic.
The Council also explained that when Mr X submitted his high hedge complaint, planning officers met to consider whether his case justified it acting outside its policy. The circumstances he described did not warrant such an ‘exercise of its discretion’.
At the time of Mr X’s complaint, the Council's website included information on how residents could make a high hedge complaint. It set out how the Council would consider such complaints but did not state the approach the Council had adopted to prioritise cases and that this meant it was not acting on high hedge complaints. The Council has since updated the website.
Findings
The Council is not under a duty to consider high hedge complaints and is entitled to prioritise how it responds to planning and enforcement cases. However, in line with the Principles of Good Administrative Practice, the Ombudsman expects any substantive decision to be properly recorded. This applies even when the decision is made in response to short-term pressures and may be temporary. Before Mr X made his complaint, the Council decided to focus on cases with potential harm to buildings, public safety or the environment. This means it is not considering any high hedge complaints. The Council has no record of the decision or the rationale for it; this was fault.
In addition, at the time of Mr X’s high hedge complaint, the Council's website did not include any information about its decision not to accept high hedge complaints. Therefore, Mr X was unaware the Council is not currently considering such complaints when he applied. This was also fault and caused Mr X frustration.
However, once Mr X applied, the Council properly considered whether to exercise its discretion to act on his complaint. It was not at fault in deciding not to act.
Agreed action
Within one month of the date of my final decision, the Council will apologise to Mr X for the frustration he experienced because of its failure to update its website.
Within three months of the date of my final decision, the Council will remind staff responsible for developing policies or deciding changes of approach: of the importance of properly recording key policy decisions and the consideration that led to them; and of the importance of updating its website to reflect such changes.
Final decision
I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Investigator's decision on behalf of the Ombudsman