Harlow District Council (202122147)

REPORT

COMPLAINT 202122147

Harlow District Council

22 May 2023

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

1. The complaint is about the landlord’s decision not to replace a hedge at the back of the resident’s property with a boundary fence.

Background

2. The resident is a tenant of the landlord. The landlord is a local authority. The resident’s home has a back-garden, and her tenancy commenced in September 2021.
3. The complaint concerns a dispute between the resident and the landlord, about whether an existing hedge, or the remains of a pre-existing fence marks the boundary of her rear garden. The resident raised a complaint to the landlord in November 2021. She said that in a meeting prior to signing her tenancy agreement, the landlord had originally agreed that the hedge at the rear of her garden could be removed. She said the landlord had then agreed that a fence could be installed where a previous fence had existed, and that this would form the rear boundary of the property. She said that after she had moved into the property, the landlord changed its mind, and only proposed to install a fence in front of the hedge after reducing it in size.
4. The landlord did not uphold the complaint and issued its final complaint response in February 2022. It said that following further investigation, its contractor had identified that the hedge belonged to the neighbouring property and that it considered the roots of this hedge to form the boundary line between the resident’s property and her neighbour’s. It said that as both properties belonged to the landlord, there was no registered boundary. It said that at the present time it would not remove the current boundary (the hedge). It said it would still install a fence in front of the hedge if the resident wished, to relieve her concern about her dog potentially being able to escape through the hedge.
5. The resident referred her complaint to this Service, as she was dissatisfied with the landlord’s response. She believed that the landlord’s interpretation of the rear boundary line was incorrect. To resolve the matter, she wanted the landlord to remove the hedge completely and install a fence in its place.

Assessment and findings

6. It should be noted that there is a difference between a legal and a physical boundary. According to government guidance, a legal boundary is an imaginary or invisible line which is rarely identified with any precision. A physical feature such as a fence, wall or hedge, may follow the legal line of a boundary, but a legal boundary may run within the physical boundary structure or along one particular side. As such, a physical structure such as a hedge or pre-existing fence is not a legal boundary in itself, and identifying a legal boundary on the ground can prove difficult.
7. UK case law has determined that the boundary line shown on a title plan or map is considered to be a ‘general boundary’, but that this does not determine the exact line of a legal boundary which ultimately can only be determined by a court. The Ombudsman does not have the same powers as a court and it is beyond the remit of this Service to make legally binding decisions about boundaries or make decisions on where they should be. As such, the focus of this investigation will be on the landlord’s response to the resident’s concerns and whether this was reasonable in the circumstances.
8. It is understood that the rear of the garden has the remains of a pre-existing fence, which the resident believes marks the original rear boundary. As set out above, this in itself is not sufficient evidence that the fence represents the legal boundary or that the landlord’s view that the hedge provides a current boundary structure, is incorrect.
9. However, the resident has said she was told during the tenancy sign up-period, that the pre-existing fence line would be reinstated as the boundary of her property. In conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence to ascertain what events took place. Whilst it is appreciated that the resident may have been given verbal information from the landlord’s staff prior to signing her tenancy agreement and the Ombudsman is not querying her version of events, there is no supporting evidence to show that the landlord specifically agreed to reinstall a fence where the previous one had existed (and that this would form an agreed boundary) prior to her signing for the tenancy. Also, if there was an informal agreement, it is not a written condition of the resident’s tenancy agreement. Without evidence in writing, it is not possible to confirm this was agreed.
10. Although no evidence has been provided to show that a re-determined boundary was agreed at the start of the resident’s tenancy, it is acknowledged that there was some confusion about whether the landlord would initially cut back the hedge or remove the hedge completely. On 27 September 2021 the landlord confirmed that the resident could install a fence in place of the hedge but said that she could only remove the hedge up to the boundary line. In doing so, it implied that the hedge went beyond the boundary. Subsequently, on 5 October 2021, it advised the resident that it could arrange for a contractor to provide a quote for the ‘removal’ of the hedge and fitting of the fence. The landlord’s reference to the removal of the hedge may have set the expectation that the hedge could be entirely removed. It is therefore understandable that this would have been frustrating for the resident.
11. Nonetheless, the landlord ultimately took reasonable steps to confirm its position in its subsequent complaint responses. In its stage one response, the landlord said that it was identified by its contractor that the hedge belonged to the neighbouring property as it was rooted in that garden, but had grown over into the resident’s. It therefore said that the only way for it to install a fence was to cut the hedge back and place a fence in front of the remaining hedge line. This accorded with internal correspondence the landlord had with its contractor at that time.
12. The landlord also reasonably explained in its initial complaint response that it considered a boundary to be any structure that separates the resident’s property from her neighbours, and that it was therefore satisfied that there was a boundary in place at the rear of the property in the form of the hedge. In its stage two response, it reiterated that as the owner of both properties it determined where the boundary lay. It clarified that it considered the roots of the hedge to be the boundary line, and thus managed the resident’s expectations in that regard.
13. When the landlord’s contractor visited the resident’s property in November 2021, it noted that the hedge was two metres in depth, and that it would cut this back by one and a half meters, to allow a chain link fence to be installed in front of it. Given that the hedge existed at the start of the resident’s tenancy and was to be reduced in depth by three quarters of its existing size, it is reasonable to assess that this would have added space to the resident’s garden rather than take away from it. As such, there is no evidence that the landlord’s proposal to reduce the hedge and install a fence in front of it would cause significant detriment to the resident, and therefore was a reasonable solution to allow a fence to be installed.
14. While it is understandable that this decision was disappointing for the resident, ultimately the landlord was under no obligation to agree to remove an existing boundary structure (the hedge) and to erect another in its place (a fence). Whilst the landlord would be reasonably expected to assist the resident in maintaining the part of the hedge that grew into her garden, if for any reason this would prove unsafe, it was under no obligation to agree to install a fence in front of the hedge. Agreeing to do so, shows that the landlord took appropriate steps to address the resident’s concerns about her dog, and therefore made a reasonable adjustment in light of this.
15. As part of her complaint escalation request, the resident was concerned that the boundary issue may present a problem if she was to purchase the property at a later time. In response, the landlord said that if the resident was to make a right to buy application in the future, then it would determine the boundary line to be used in respect of any such application. As this was a potential issue that may or may not occur, the landlord was not obliged to take any further action in that respect at that time. However, its commitment to revisit this in the future if the need arose, demonstrates that the landlord remained resolution focused in its approach.

Determination

16. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its decision not to replace a hedge at the back of the resident’s property with a boundary fence.