Fareham Borough Council (202016061)

REPORT

COMPLAINT 202016061

Fareham Borough Council

15 September 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s handling of the resident’s reports of overgrown hedges from a neighbouring property.

Background and summary of events

Background

The resident is a secure tenant and the tenancy began on 14 October 2019. The property is described as a one-bedroom bungalow on the tenancy agreement. The landlord is a local authority and has confirmed that the property has a private garden.
The landlord has advised this Service that it is aware that the resident has various physical health issues and PTSD.
The tenancy agreement requires the resident to trim hedges ‘so that they do not encroach onto any neighbouring gardens’ and to obtain permission in writing before putting up a fence.

It also requires the resident not to harass, verbally abuse or use violence against ‘anyone in the locality’. The landlord is obliged to tackle anti-social behaviour (ASB) seriously, taking ‘appropriate action’ to resolve the problem, including by referral to a mediation service and legal action where there is ‘appropriate and sufficient evidence’.

Part 8 of the ASB Act (2003) defines a high hedge as being a line of two or more evergreens that is two metres above ground level. The legislation sets out that local authorities can charge a fee to deal with complaints about high hedges and decide if the hedge is ‘adversely affecting the complainant’s reasonable enjoyment’ in which case a notice can be sent to the owner of the hedge to take remedial action to avoid the adverse effect of the hedge.
The landlord has an ‘aged or disabled person gardening scheme’ (otherwise known as assisted gardening) that allows for tenants to apply to have their grass cut monthly during spring to autumn and for their hedges to be trimmed twice per year.
The landlord’s website shows that it has a two-stage complaints policy and it outlines that it expects to be able to respond to most complaints within three weeks of receipt.
The resident’s complaint concerns her nextdoor neighbour who is also a tenant of the landlord. This Service has not been provided with a copy of the neighbour’s tenancy agreement but it would be reasonable to conclude that the same, or similar, tenancy conditions apply as to the resident.

Summary of Events

The landlord wrote to the resident’s previous address on 26 April 2019, giving permission for her to install fencing at the property that she was due to move into. It said that the fence should be 6 foot or below in height and that the resident was responsible for the cost of its installation and maintenance.
The resident wrote to the landlord on 3 June 2019 to thank it for its assistance and confirm that her fencing contractor would install the fence and cut back bushes 13-14 June 2019 (the resident has provided details of the quote that confirmed her contractor was to cut back bushes and install fencing).
The resident and landlord exchanged further emails in June 2019 regarding bushes and a fence at the front of the property. In an email from the resident, she referred to involvement with the Police and mentioned that her neighbour should not be able to get away with attacking anyone with bleach.
The landlord wrote to the resident on 12 July 2019 to advise that it had added her to its assisted gardening scheme and that its streetscene department would undertake grounds maintenance work.
The landlord noted a report on 27 April 2020 about a disagreement between the neighbour and resident regarding the hedge height as the resident wished for the hedges to be cut down to the size of the fence and the neighbour did not. The neighbour advised the landlord that this had not been a problem recently.
The landlord’s records indicate that an allegation was received in December 2020 about potential damage being caused to the hedges and that an arboricultural officer was therefore asked to attend the neighbour’s garden.
The resident made a complaint to the landlord on 4 March 2021 on the grounds that:
1. the neighbour’s hedge branches had damaged the walls of her property and would likely damage her fence if the resident stopped paying for branches to be cut back
2. the garden was not safe for her and her dog when she moved in so she had needed to install fencing against a pre-existing chain link fence but the neighbour had attacked the fencer during works which meant the fence was not straight and a gap had been left between the new fence and original chain link fence
3. the landlord had failed to reprimand the neighbour for her actions and had been rewarded by being given free block paving and a shed
4. the landlord had told the resident that she would need to go to the small claims court for any injury or expense related to the hedge.
The landlord’s records show that an arboricultural officer provided internal feedback on 17 March 2021 following the visit to the neighbour’s garden a few months earlier. He advised that he did not recall that the hedge was high enough to be actioned under any ASB policy and that reasonable enjoyment of the gardens would need to include considerations of factors such as the garden aspect.
The landlord issued a stage one complaint response to the resident on 19 March 2021. It concluded that:
1. the chain link fence present at the time the resident was offered the property was considered adequate and it had not received any occupational therapy recommendation that a fence was needed (due to the resident’s assistance dog) but it had given permission for the resident to install a fence at her own cost
2. it had not received a report at the time of the June 2019 incident and its efforts to investigate with the named contractor had not yielded any evidence of an assault
3. the neighbour had denied the allegations about the incident in June 2019 but had confirmed she was not happy with a proposal to reduce the height of her hedges
4. it could not comment on costs the resident had incurred for her maintenance of the front garden as it did not receive information about this at the time
5. it had reviewed the decision to provide the neighbour with a shed and pathway and was satisfied it had handled this appropriately
6. it had no record of reports made that the neighbour’s hedge had damaged the resident’s walls
7. the neighbour had denied throwing bleach at the resident and made counter-allegations that the resident had laid down salt to damage the hedge
8. it had visited the neighbour’s garden to assess the impact of the hedge on the resident’s garden and determined that ‘the type and location of your washing line and your garden’s south facing aspect are not impacted by the hedge’
9. the neighbour is entitled to a hedge and these do not have to be limited to 6.5 feet and legislation recommends a negotiation between parties where hedges impact the ‘reasonable enjoyment’ of a house or garden
10. it agreed that the neighbour’s bushes should be reduced in height and a request had been made for its streetscene department to reduce the height to below gutter level at its next visit
11. it offered to assist the resident and her neighbour by making a mediation referral.
The resident wrote to the landlord twice on 22 March 2021. She advised that she wished to escalate the complaint although it may take some time to gather her evidence. She said the escalation would be related to the height of the neighbour’s hedges (and impact on her enjoyment of her garden) and that she had paid for a fence that was positioned incorrectly due to her neighbour’s actions. She added that:
1. the stage one response had implied she had lied about the need for fencing to her garden and the events that led to the fence being installed
2. she had been ‘all but accused’ by the landlord of bullying her neighbour
3. she had declined a garden assistance offer as the help she needed – picking up of leaves from her neighbour’s plants – were not covered under the scheme
4. she rejected the accusation that she had damaged her neighbour’s plants
5. she queried why her neighbour had been given a free shed yet she had been advised that the landlord did not provide these.
The landlord responded to the resident on 23 and 25 March 2021. It said that it would use the details the resident had provided to investigate further and advised that it was aware an officer was still engaging with her so it would not escalate the complaint for the time being.
The resident wrote to the landlord on 19 April 2021. She apologised for the delay in offering further information and advised that:
1. she had felt she had to move to her current property due to problems at her previous address
2. she had discussed the possibility of installing a fence with her neighbour from March 2019 but the neighbour had attacked the fencer during the works in June 2019 which meant he had been unable to make the fence straight and had left a gap between the fence and neighbour’s bushes that should not have been there
3. she provided photographic evidence of her neighbour’s bushes, the damage caused to her wall, other areas of the garden and a witness statement about the events in June 2019
4. she queried what the criteria was for obtaining a shed from the landlord given her neighbour had been successful in obtaining one and she had not
5. the garden assistance scheme had refused to cut branches that were on the other side of the fence even though that area was still in her garden
6. the neighbour had not allowed the landlord to cut back the hedges when it had offered to do so in the autumns of 2019 and 2020
7. the neighbour had thrown bleach at her while she had been removing a branch that had grown through her guttering
8. her neighbour’s high hedges had reduced the sunlight into her garden and meant she could not ger her washing dry
9. she thought mediation would be a waste of time given the steps she had already taken to try to accommodate her neighbour
10. she asked for her neighbour’s bushes to be cut to 6.5 feet high.
The landlord’s records show that it investigated the allegations about the events in June 2019 by contacting the private fencing contractor and a third party (who was apparently a witness) in March 2021 and late April 2021 respectively. The feedback from both was that there had been no altercation between the fencer and the neighbour. The fencing company added that the hedge had been cut to 6 foot in height and that it had been cut back enough to allow for the fence.
The landlord’s records show that it took feedback from its streetscene department on 27 April 2021 to check whether there had been any difficulties during its visits to the neighbouring property. The streetscene department advised that it had attended the neighbour’s garden on three occasions in 2019 and twice in 2020, it had no records of a dispute and advised it would be able to reduce the hedge height to below gutter level during its next scheduled visit in July-August 2021 (or, if there was a drought, in October-November 2021).
The landlord’s records show that its housing department had reviewed the case on 28 April 2021 and noted that it had previously taken advice from the Royal Horticultural Society (RHS) website that set out that a high hedge is more than 2 metres tall, according to the law, but that this is not necessarily the height to which a hedge is reduced.
The landlord issued a stage two complaint response to the resident on 19 May 2021. It concluded that:
1. its records show that it cut the neighbour’s hedge back to the boundary line during void works prior to the resident moving in
2. it had declined to install a fence itself in March 2019 because it decided that the existing chain link fence was adequate but it did give permission for the resident to install a fence and it considered this to be an appropriate response
3. it had not found that complaints about the resident’s property (inside and outside) had been ignored
4. it had spoken to the resident’s fencing contractor and received feedback that the neighbour had been friendly and helpful when it was on site and it had not recognised the version of events that included an assault
5. it had not provided a shed to the neighbour
6. it provided some government guidance on hedges and damage caused by them
7. it had no notes regarding the assisted garden scheme visits to the neighbour in autumn 2019 and 2020
8. given the lack of evidence, it had not investigated the neighbour’s counter allegations that the resident had damaged the hedge
9. it had visited the area to the rear of the resident’s garden and was satisfied that there was no breach of relevant legislation or planning guidance
10. the position of the fencing was down to the resident and her contractor and the landlord would not intervene
11. the neighbour’s hedge would be reduced to below gutter height during the next scheduled visit by the streetscene department.
The resident advised this Service that two grounds maintenance workers had attended her neighbour’s property on 22 July 2021 and cut back hedges but that they failed to reduce it to below roof level and they had left cuttings on her side of the fence. She also queried why she could not have been given advanced notice of the work.
The landlord has since advised this Service that the streetscene appointment to reduce the neighbour’s hedge height had to be rescheduled to November 2021 due to a backlog caused by pandemic-related disruption to services that meant emergency works only were being completed.

Assessment and findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
It is not disputed that the landlord gave permission for the resident to install a fence prior to her moving into the property in October 2019 and that it did so after inspecting the chain link fence that was in place and determining that this was in a satisfactory condition. The landlord’s approach to check the state of the pre-existing fence and give permission for the resident to install her own was reasonable.
When the landlord gave permission for the resident to install the fence, it advised that she was responsible for installation and maintenance of the fence. The landlord was therefore under no obligation to rectify any error in the way the fence was fitted and its future repairs, particularly given it later established no evidence that the neighbour impacted the way the fence was installed.
The resident mentioned allegations of an assault by the neighbour on her fencing contractor in June 2019. The resident advised that the Police were aware and the resident was not the victim of the alleged assault. The landlord failed to investigate the allegation at the time to determine whether the neighbour was in breach of her tenancy agreement. However, it did conduct these investigations during March-April 2021 when it said it interviewed the neighbour and recorded information it had pro-actively sought from the resident’s fencing contractor and a potential witness. These investigations did not yield evidence of an assault – this meant it did not have ‘sufficient evidence’ of ASB to pursue enforcement action against the neighbour. Although there was a delay in investigating the original report, the landlord’s actions in this regard were therefore in accordance with the tenancy agreement and appropriate.
Based on evidence seen by this Service, the landlord was aware as early as April 2020 of a potential dispute between the resident and her neighbour regarding the height of the neighbour’s hedges. However, this information was received from the neighbour and there was no report that this was an ongoing issue – the landlord’s decision not to take further action at this time was therefore reasonable.
A hedge dispute issue was raised again in December 2020 when allegations were made that damage had been caused to the hedge by the resident. The landlord’s records show that it inspected the hedge and established no evidence of the hedge being poisoned – again, its decision not to investigate further was therefore reasonable.
The resident raised her own concerns about the hedge height in March 2021 at the same time that she made her complaint. The landlord noted that it had already researched hedge height guidance which indicates that the landlord was previously aware of the resident’s concern about the size of the hedges but no evidence has been seen by this Service to show that the resident raised these concerns with the landlord prior to March 2021 – there is therefore no evidence that it delayed in investigating the hedge height issue.
The landlord took the following steps to investigate the resident’s hedge height concerns from March-May 2021:
1. reviewed the findings of an arboricultural officer, who had previously attended, determining that the hedge height did not appear to be such that enforcement under ASB processes was appropriate and that height was not the primary consideration as the resident’s ‘reasonable enjoyment’ would have to be assessed
2. confirmed the advice it had previously obtained by researching the RHS guidance
3. visited and researched the location to assess whether there was any breach of legislation or potential impact on the resident’s reasonable enjoyment of her property
4. reviewed its streetscene activities and established that the neighbour’s garden had been attended to on three occasions in 2019 and two in 2020, in line with its assisted gardening obligations, and noted that streetscene operatives had no information that there had been a dispute about the hedge
5. determined that the hedge height should be reduced to below gutter level during the next scheduled assisted gardening visit
6. signposted the resident to advice on the government’s website in reply to her concerns about the hedge potentially causing damage to her fence
7. offered the resident that it could make a mediation referral.

These actions were reasonable steps on the part of the landlord to investigate the resident’s concerns, assess the likely success of any further action and encourage a resolution through mediation as its ASB procedures recommend.

The landlord took decisions through the complaints process that it was not responsible for the gap between the fence and hedge, signposted the resident for further advice on what to do if any damage is caused to the fence and told her it would reduce the hedge height to ensure that it did not interfere with any guttering. It took appropriate steps during the complaints process to investigate the context around the installation of the resident’s fence and answer points about the neighbour’s shed and pathway (raised in the resident’s original complaint), the circumstances of the resident’s move to the property and the neighbour’s denials of the resident’s allegations – it was reasonable for the landlord to address these points in its complaint responses.
The landlord proposed to reduce the hedge height to below gutter level during its next assisted gardening visit. It indicated that this was likely to be during the summer of 2021 but has since advised this Service that there has been a pandemic-related delay to this timescale. Although the delay has been caused by circumstances outside of the landlord’s control, this Service has seen no evidence that it has updated the resident accordingly so a recommendation has been made in this regard below.
It is a matter of judgement to what extent the neighbour’s hedge may be impacting the view from, and light into, the resident’s property and so it was reasonable for the landlord to visit the location albeit it has not made observations from the resident’s garden itself. There is a recognised recourse through Part 8 of the ASB Act (2003) for local authorities to deal with complaints about high hedges but this is not a function in its capacity as a landlord. It is unclear if the landlord has applied the same tests in this case as it would in investigating in its local authority role and whether the resident may still be able to use this recourse – a recommendation has therefore been made in this regard below.
In summary, there was no delay by the landlord in investigating the resident’s concerns about her neighbour’s hedge. Further, its decisions that it is not obliged to remedy any fault in the installation of the fence or enforce the reduction of the hedge height were based on reasonable investigations it undertook during March-May 2021.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of overgrown hedges from a neighbouring property.

Reasons

The landlord made reasonable investigations into the resident’s concerns about the height of the neighbour’s hedge and the potential impact of the hedge on the resident and her property.

Recommendations

The landlord to write to the resident within four weeks of the date of this report to:
1. advise her of a likely timescale when it expects to be able to attend to reduce the neighbour’s hedge height to below gutter level
2. advise the resident if it can offer further notice to her in writing once it knows the date the streetscene department will be attending to her neighbour’s hedge
3. advise if it has assessed the hedge height in line with what its local authority obligations under Part 8 of the ASB Act (2003) or not and, if appropriate, signpost her to this recourse.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.