Peabody Trust (202215374)

REPORT

COMPLAINT 202215374

Peabody Trust

21 March 2024

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 response to the resident’s reports of bamboo encroaching on her garden from a neighbouring property.

Background

2. The resident is an assured tenant of the landlord, she resides in a 2 bed bungalow with a private rear garden.
3. In August 2022 the resident raised a complaint with the landlord in relation to bamboo that had been planted by her neighbour 2 years previously. The neighbour in question was also a tenant of the landlord. The resident reported that bamboo roots had encroached on her own garden and shoots had begun to grow.
4. The resident informed the landlord that she had raised the matter previously and asked for assistance. She had been told that this was a neighbour dispute rather than a landlord issue and advised to pursue as a civil legal matter.
5. The resident arranged for an independent specialist to inspect and provide a quotation to eradicate the bamboo. The report confirmed that bamboo rhizomes were impacting the majority of her lawn. To resolve the issue, the plants would need to be dug out from both properties, otherwise it would begin to encroach again. The quote to treat both properties was £6000.
6. In its stage one response on 26 August 2022 the landlord confirmed that it would not pay for the bamboo removal, it did however agree to monitor as a nuisance case. It also reiterated that the resident may consider her own civil legal action.
7. The resident escalated her complaint and said that she was not entitled to legal aid and could not afford a solicitor. She felt that it was the landlord’s responsibility to resolve. Furthermore, she was concerned about the toxins contained within the bamboo and a result was unable to allow her pets into the garden.
8. The landlord provided its stage 2 response on 31 October 2022, it said that there was no clause in the occupancy agreement to prevent the neighbour from planting bamboo as it was not considered to be an invasive species. It said that although it was not obliged to do so it had inspected both properties and as a responsible landlord had interceded with a positive outcome. It summarised that it would not be taking any further action outside of monitoring that the neighbour removed the two remaining plants, nor would it accept any liability. The landlord offered the resident £25 compensation for its delay in escalating the complaint to stage 2.
9. Following further communication from the resident the landlord sent a stage 2 update on 3 November 2022, it confirmed that the remaining bamboo plants in the neighbour’s garden were now contained in pots, meaning that the roots were retained and would not impact her garden further. It set out the options available to the resident, including legal action and this Service.

Assessment and findings

10. This assessment has considered how the landlord responded to the resident’s reports and whether that response was fair, reasonable, and in accordance with its obligations under the lease. This assessment has not considered who may be liable for any damage to the resident’s garden caused by the bamboo encroachment as this is a legal matter which is outside of this service’s jurisdiction to consider.
11. Bamboo is not classed as an invasive species in the Wildlife and Countryside Act 1981 and there are currently no restrictions on planting it. However, as in this case, it can become invasive and spread beyond the boundaries of the property where it is planted.
12. The bamboo plants in question were planted in the private garden of a neighbouring tenanted property of the landlord. Whilst this service has not had sight of the neighbour’s tenancy agreement it is common practice for the maintenance of such private gardens to be the responsibility of the tenant and as such the bamboo plant would also be the responsibility of that tenant to maintain. The landlord has confirmed this to be the case in all of its correspondence with the resident.
13. Nuisance has been described by case law as the encroachment onto a property from neighbouring land of invasive plants, even in the absence of actual physical damage, because the risk of future damage from them and their high cost of removal constitute an immediate interference with the use & enjoyment of the land.
14. Therefore, the landlord was required by the resident’s tenancy agreement to consider and respond to the resident’s reports of nuisance from the overgrown bamboo from a neighbouring property. It cannot legally enforce the removal of the overgrown bamboo; however, it has a responsibility to ensure all reasonable steps are taken to address the resident’s concerns.
15. It was appropriate for the landlord to attempt to resolve the complaint amicably by speaking to the neighbour and requesting that they remove the bamboo.  Furthermore, it was reasonable for the landlord to decline to pay for the quoted works, given the disproportionately high cost of this and its duty to provide value for money. However, the evidence shows that the landlord did not inspect either garden until 28 September 2022, given the distress this issue was causing the resident a timelier inspection would have been appropriate.
16. With regards to its response to the resident’s concerns about toxins the landlord’s response was lacking and dismissive in tone. It stated that “when eaten raw, bamboo contains a toxin that produces cyanide in the gut, but as you are not seeking to eat any shoots then this should not be an issue”. While this would not affect the landlord’s obligation, it was nevertheless aware that the resident’s concerns were about the safety of her pets and should have shown greater empathy in its choice of wording.
17. The landlord’s complaint’s policy says that it will respond to stage 2 complaints within 20 working days of the request being received. In this case the resident did not receive a response until 31 October 2022, 43 working days later. The landlord did however appropriately acknowledge this within its final response and offered the resident £25 compensation, in line with its compensation policy.
18. In summary, while it is acknowledged that the encroachment of the bamboo into the resident’s garden was understandably distressing, under the terms of the lease the resident is responsible for the maintenance, repair and renewal of their own private garden, including lawns and therefore the landlord was not obliged to carry out any remedial works to their garden. Its actions were both fair and reasonable and as a result there was no maladministration with regards to its response to the resident’s reports of bamboo encroachment.

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports that bamboo was encroaching her garden from a neighbouring property.

Recommendations

20. It is recommended that the landlord pays the resident £25 offered for its failure to comply with its complaints policy in relation to its stage 2 response.
21. It is recommended that the landlord reviews its complaint communication with the resident and takes learning from the inappropriate tone of its response.
22. It is recommended that the landlord considers what other support may be available to assist the resident with treating her garden, including referrals to any external charitable organisations or appropriate signposting.