Stoke-on-Trent City Council
24 December 2020
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 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 is about the landlord’s response to the resident’s reports of boundary issues between the resident’s and her neighbour’s properties.
- What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
- Paragraph 39(a) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate matters that are raised with this Service prior to having exhausted the landlord’s complaints procedure.
- After carefully considering all the evidence, it is noted that the resident has raised additional concerns about the neighbor lifting fence panels, entering the resident’s garden, trimming the hedges and discarding garden waste. As this is a separate issue to the complaint investigated by the landlord and subsequently raised with this Service, this is not something that we can adjudicate on at this stage, in accordance with paragraph 39(a). The resident should continue to pursue this matter through the landlord’s complaints process if she remains dissatisfied.
- This investigation will, however, consider the landlord’s response to the resident’s concerns regarding the security of the her garden, following the removal of the hedge.
Background and summary of events
Policies and Procedures
- Paragraph 3.7.1 of the resident’s Tenancy Conditions states that: ‘You have the right to make Improvements to your Property, but you must obtain our written permission beforehand. You must also comply with all building regulations and obtain any necessary planning permission’.
- Paragraph 7.3.7 of the resident’s Tenancy Conditions states that: ‘You must not make any Improvements, alterations or additions to the Property or the outside of the Property and/or (where relevant) the Communal Areas or any shared areas to the Property unless you have received written permission from us beforehand.’
- In addition, paragraph 7.7.5 of the resident’s Tenancy Conditions states that: ‘You (and/or any member of your Household) must not remove, replace or plant any hedge, fence or tree at the Property without consulting with your neighbour/s and obtaining our prior written permission.’
- With regard to the defined boundaries, paragraph 7.7.9 of the resident’s Tenancy Conditions states that: ‘You agree that the boundary of the Property is that boundary determined by us at the time of signing, and in the event of any subsequent disputes with Neighbours and/or the …[the landlord]… that our decision in the determination of the boundary of the Property is final’.
- Furthermore, paragraph 7.1.5 of the landlord’s Tenancy and Estate Management Policy states that: “Removal or planting of trees/hedges requires permission from the council. It is expected that the tenant will consult with their neighbours if this has an impact on them. If works are undertaken without permission the tenant may be asked to reinstate the garden to the original state or to pay damages for the costs incurred by the …[the landlord] … in of having to undertaken the work themselves when the tenancy has ended.”
- Regarding managing neighbourhood disputes, paragraph 7.1.7 of the Tenancy and Estate Management Policy states that: ‘Tenants are encouraged to resolve their issues in an amicable and conciliatory manner wherever possible. Resolution of neighbourhood complaints can include mediating between two parties to seek an amicable resolution, writing to both parties highlighting details of the complaint and the action required to resolve the issue or undertaking routine inspections to the property. Meditation will primarily be offered to address low level anti-social behaviour issues arising from incompatible lifestyles and instances where counter allegations made….In all cases actions will be determined according to the particular circumstances of the case and consideration may be given to taking legal action if this is felt to be appropriate, necessary and proportionate.’
- The resident is a tenant of the landlord, which is also the Local Authority. The property is a house, which has a shared boundary line with her neighbour, whose property is to the rear of the resident’s. The neighbour is now a freeholder, having acquired their property through the Right to Buy (RTB) scheme.
Summary of Events
- In February 2019, the resident’s neighbour removed a boundary hedge at the rear of the resident’s property and replaced it with a fence without the resident’s consent. The resident informed the landlord on 4 February 2019 and the landlord conducted a site visit the same day. It deemed the fence to be a very good standard, albeit not exactly on the boundary line that was previously determined by the hedge.
- On 8 February 2019, the landlord contacted the neighbour who advised that he had sought permission from the landlord’s planning department, who had agreed that the removal of the hedge, and the subsequent installation of a boundary fence in its place, would not be an issue. A compromise was reached between the neighbour and the landlord in which it was agreed that the neighbour would move the new fence to a position more in line with the boundary line and made good the ground; this formed part of a mediation process to help resolve the issue. A timescale for completion was noted; however, shortly afterward, on 24 February 2019, the neighbour exercised their Right to Buy (RTB) their property, meaning their tenancy was no longer in place. Consequently, the neighbour did not fulfil their agreement to remove the old roots.
- The landlord subsequently wrote to the neighbour, following legal advice, to request that they carry out the agreed actions before formal legal action, in the form of an injunction, was considered. The landlord’s records show that visits to the neighbour’s property were carried out on 20 May 2019 and 7 August 2019, as well as telephone calls made on 11 March 2019, 20 May 2019, 11 June 2019 and 30 October 2019. An office interview was also conducted on 14 June 2019, along with letters sent to the neighbour on 5 June 2019, 21 August 2019, 4 and 30 October 2019. However, the works were not completed by the neighbour as originally agreed.
- As a result, the landlord arranged for the removal of the remaining hedge roots, which was undertaken on 12 September 2019 and follow-up work completed on 23 October 2019. All the roots were removed except for one large ball root at the far right of the resident’s garden, because it had been established that if this final root was removed, it would affect the privet hedges to a further three neighbouring gardens. This also meant that a fence could not be installed exactly on the shared boundary line.
- The resident made a formal complaint on 28 January 2020 in regard to the boundary at the rear of her property. She explained that 12 months ago she had had her hedge removed by her neighbour without her consent. She said she was under the impression that the landlord was taking the neighbour to court for the removal of a boundary, yet she had discovered that this was no longer the case. She stated that the removal of the hedge left all the roots in the ground, which had taken ‘months’ to get removed, and was only completed due to her chasing the landlord for action to be taken. She added that she had been told that she was no longer getting a fence and she, as a result, had inherited 45 centimetres more garden. To secure her garden, the resident said she had to buy conifers, although this did not resolve the issue and she felt the garden remained unsecure. In short, she was dissatisfied with the way the landlord had handled situation, believing that she had been lied to about the fencing, and the progress in the legal procedure. As a resolution, the resident requested that:
- The complaint be reported correctly;
- A proper investigation take place; and
- A new boundary fence be erected.
- In the landlord’s stage one complaint response of 14 February 2020, the landlord explained that it had sought legal advice following the removal of the hedge, and it was advised that mediation between the resident and the neighbour was the best course of action because the neighbour was not a tenant of the landlord and thereby it could not use the tenancy conditions as a means of resolving the issue. The compromise agreed was not fulfilled as there was one root that was left in place which, if removed, would have caused damage to the hedges of three other gardens.
- Following this, the landlord said it sought further legal advice and it was agreed that there was now adequate fencing in place, although 45 centimetres from what would be determined as the boundary line, and the installation of another fence would create a ‘no-man’s land’ that could result in maintenance problems in the future.
- In conclusion, the landlord apologised for the length of time taken to deal with the situation, but it felt that it had done everything it could have to rectify the situation as best as possible. It offered to trim any excess hedges or to help with any further gardening work, but, in light of the above, it did not uphold the complaint.
- On 19 February 2020, the resident requested that the complaint be escalated on the basis that at the time that the hedge was removed in February 2019, the neighbour was a tenant of the landlord and therefore had committed a breach of the tenancy agreement. Nonetheless, whether a tenant or not, the resident contended that the neighbour required permission to remove the hedge and had also trespassed to remove it. Moreover, she asserted that the landlord had not been truthful with its information over the last 12 months, which had resulted in costs incurred to plant trees to secure the garden.
- In the landlord’s stage two complaint response of 6 May 2020, the landlord addressed each aspect in turn as follows:
- The removal of the hedge – the landlord concluded that it agreed that the hedge should not have been removed without permission, but it was not able to corroborate whether permission was indeed granted by the landlord’s planning department. As such, in the absence of any further evidence, the landlord was unable to make a determination.
- Breach of tenancy – the landlord accepted that on the date that the hedge was removed, no written consent had been granted by the landlord and also no consultation had taken place with the resident. The landlord partially upheld this aspect of the complaint, as it accepted that breaches had occurred. However, it was satisfied that the appropriate action was taken by contacting the neighbour whilst he was still a tenant of the landlord to rectify the situation.
- Lack of action and dishonesty – the landlord reviewed the situation and stated what it had done in terms of letters, calls, and visits, to ensure the agreement to remove the remnants of the hedge and install a fence on the actual boundary; it also said that conducting the works to remove the roots of the hedge itself, when it was apparent that the neighbor was not going to do so, was reasonable in the circumstances. In light of the above, it did not uphold this aspect of the complaint. It also said that as the fence could not be installed on the shared boundary line, due to the large remaining root, it was unlikely that there would be a positive result if this matter was to be pursued legally. It agreed that legal action had at first been considered an appropriate course to take; but the fact that the hedge had already been removed, and a good standard fence erected in its place, it was considered unreasonable and costly for the landlord to pursue this matter further. Furthermore, the fence, although not on the exact central boundary line, was adequately positioned and meant that the landlord and the resident had gained land.
- Garden security – the landlord determined that the new fence was considered to be erected to a good standard with gravel and concrete posts, approximately 40cm from the actual boundary. The fence was six feet in height, which was the legal height limit for a rear boundary fence and, therefore, there was no need for an additional boundary. Moreover, the landlord said that it had offered its assistance in completing the trimming of any excess hedges or any other gardening work, but this offer had not been taken up. The landlord did not uphold this aspect of the complaint because it had removed the roots from the original hedge, and the remaining large ball root was unable to be removed without it affecting the privet hedges of a further three gardens.
- New fence – the landlord stated that the fence erected was a good standard and, although not on the exact central boundary line, it was adequately positioned, and any additional fence would create a ‘no man’s land’, making it very difficult to maintain.
- This concluded the landlord’s complaints procedure. The landlord wrote to the resident and to this Service stating that it was unable to convene a review panel to consider the complaint at the next stage of its complaints process, due to the impact of the coronavirus pandemic. It therefore confirmed its response of 6 May 2020 as the final response.
Assessment and findings
- It is not disputed that the resident’s neighbour had not adhered to his obligations under the Tenancy Agreement and the landlord’s Tenancy & Estate Management Policy, referred to at paragraphs 6 to 11 above. The neighbour should have obtained written permission to remove the boundary hedge from the landlord and consulted the resident. The landlord would therefore be expected to address the matter in line with paragraph 14 of its Tenancy Estate Management Policy, which states that ‘If works are undertaken without permission the tenant may be asked to reinstate the garden to the original state or to pay damages for the costs’.
- The landlord did discuss the issue with the neighbour during a mediation process, following which the neighbour agreed to remove the remaining roots of the culled hedge and to move the fence closer to the boundary line. However, the situation changed when the neighbour became a freeholder on 24 February 2019 via the RTB scheme and, as such, did not fall within the landlord’s jurisdiction as a tenant.
- In situations such as this, it would be reasonable for the landlord to seek legal advice, which it did. Again, the evidence shows that the landlord continued to attempt to resolve the matter informally. For example, the landlord sent letters to the neighbour advising of the legal action it may take if the matter was not resolved, as well as conducting calls, visits and interviews; this took place between March 2019 and October 2019.
- Unfortunately, this did not resolve the issue, and so the landlord arranged for the roots to be removed, which was completed in October 2019. However, this brought about a further issue, as a large root was unable to be removed and so the fence could not be installed exactly on the boundary line because it may affect other properties.
- Yet again, when the situation changed, the landlord adapted its approach. In this case, it was reasonable for the landlord to take further advice, which concluded that adequate fencing was in place, although 45 centimetres from what would be determined as the boundary line, and the installation of another fence would create a ‘no-man’s land’ which could result in maintenance problems in the future. This decision was in line with the Tenancy Conditions, which say that “…in the event of any subsequent disputes with Neighbours and/or the …[the landlord]… that …[the landlord’s]… decision in the determination of the boundary of the Property is final.”
- Moreover, the decision to not install the fence because it may affect other properties was entirely reasonable in the circumstances. Furthermore, the landlord’s decision not to pursue the matter legally was also reasonable in the circumstances, as it was based on legal advice that determined that it would not produce a positive outcome.
- It is apparent that the resident remained dissatisfied with the security of her garden and so planted hedges to make the garden more secure. She has complained about the additional cost she has incurred as a result of this. The landlord inspected the fence and deemed it to be of good quality, in an appropriate location, albeit not on the exact boundary, and at the maximum permissible height.
- It is the Ombudsman’s opinion that the landlord did seek to resolve the resident’s concerns about the additional costs she had incurred by offering to assist with maintenance of the hedges she has planted, but this offer has not been taken up by the resident. In light of the resident’s continued concerns regarding the security of her garden, which have been raised with this Service following the landlord’s final response, the Ombudsman recommends that the landlord contact the resident to discuss this issue and to re-offer its assistance to maintain the hedges she has planted.
- In summary, this Service does acknowledge that the matter has been distressing for the resident and it has taken a substantial amount of time to find a resolution. However, it is evident that the landlord has attempted to find a resolution to the matter, in line with its obligations and what was reasonable in the circumstances, and therefore no service failure has been identified.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of boundary issues with her neighbour.
- In short, the landlord did endeavor to resolve the issue in line with its obligations when the neighbor was a tenant and when the neighbor had become a freeholder. The landlord sought legal advice, carried out the works itself to remove the remaining hedge roots, and followed its policies and procedures when determining that the newly installed fence was adequate.
Orders and recommendations
- It is recommended that the landlord contact the resident to discuss the security of the garden and to re-offer its assistance in maintaining the hedges she has planted.