Aster Group Limited (202123084)

REPORT

COMPLAINT 202123084

Aster 3 Limited

31 May 2022

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

The complaint is about the landlord’s response to the maintenance of trees resulting in an increased service charge.

Background and summary of events

Policies and Procedures

The landlord’s Tree Survey specification document notes that it will carry out “both informal and formal planned surveys “… “on sites owned or administered” by the landlord. It further states that “In the event that a tree requires work in whatever form to mitigate against risks to the public or property or to improve its condition and development then this will be listed against the tree detailing the problem and given priority rating. All suggested works must be compliant with BS3998 2010”.
The landlord’s website contains information on Arboriculture Management and Works. It states that it will carry out detailed surveys on trees every five years. It further states that the criteria for carrying out tree works were:
1. If a tree is in a dangerous condition due to disease, or is dying.
2. If a tree has been identified as causing damage to a built structure.
3. In line with good practice such as re-pollarding (pruning).
4. If a tree is obstructing a highway.
5. To carry out a repair.
6. We may remove trees to achieve a management objective. For example if we’d like to replant with a more suitable species.
7. If a tree has been damaged in severe storms or has become unstable.
8. Removing dead branches that may fall.
The document outlines different tree works that can be completed, including pruning works. The document allows for “tree felling” which is the cutting down of a tree or shrub to a point as close to ground level reasonably practicable to leave a stump” and “stump treatment” which is action to prevent re-growth from the stump of a felled tree”.

Summary of Events

The resident is an assured tenant of the landlord. Her property is a house.
The landlord’s tree contractors carried out an arboricultural survey on 9 June 2019. It noted a leylandii tree which was of medium height and which formed a “Mature boundary hedge”. The survey identified no works to the tree; however, in late August 2019, the landlord removed the tree, which was on the edge of its land after it became aware that it was causing property damage to a neighbouring owner-occupied property. It replaced the fence which formed the boundary with the owner occupier.
On 17 August 2020 the landlord sent the resident her service charge statement for 2019-20. The statement included a new charge for the tree works of £5.00 per week to be carried over to the next financial year. A revised statement sent on 19 October 2020 contained the same charge.
On 7 March 2021 the resident asked the landlord to waive the service charge for the tree works, due to the neglect of the tree. She stated that the fence had to be replaced due to the neglect of the large conifer grown through the private residents’ fences. She noted that she and other residents paid a service charge for grounds maintenance, which she stated was not completed, and questioned why residents should pay another £3,000 for extra tree works.
On 12 March 2021, the landlord noted that a neighbour had made the same complaint the previous year. It advised tree works were charged separately to grounds maintenance – tree works was a reactive charge designed to cover the costs of necessary tree maintenance, whilst grounds maintenance covered the routine costs for the estates team in visiting the site on a regular basis. The landlord also advised that it did not consult with residents about the works as it capped the charge at £250 per household and did not seek to recover the full cost.
The resident remained dissatisfied stating that her neighbour had not consented for her complaint to be closed last year. Consequently, the landlord registered a formal complaint. It asked the resident to confirm if she was representing two other residents in respect of her complaint that the tree that was removed was neglected.
On 21 April 2020, the landlord responded to the complaint stating:
1. It had completed its annual informal survey on all trees during June 2019, carried out by fully Arboricultural Association approved surveying companies to identify any high-risk trees requiring works and this “row of conifers” were not identified as high risk. The landlord stated that its surveying programme was in line with industry best practice and Arboricultural Association Guidance.
2. The trees themselves were in good condition, in terms of their health, however, they were causing damage to retaining banks and fences of properties adjacent to the estate, and under the Occupiers Liability Act, it had a requirement to carry out necessary works to prevent damage to persons or property.
3. The works could have been programmed as an annual maintenance cost, to reduce the sail and lever effect of the trees on the retaining banks. However, the annual maintenance cost would have been significant and so the one-off works were identified as the most cost effective and practicable solution reducing the overall annual cost to customers of maintenance.
The resident escalated her complaint reiterating her view that the landlord should have pruned the tree to stop it growing so large as part of the grounds maintenance service and that she wanted the charge for tree works removed. She stated that she had obtained advice from an independent tree surgeon who confirmed that the trees should have been cut back yearly.
On 26 May 2021 the landlord emailed the resident the Stage 2 response (although the copy of the response sent to this Service is dated 24 August 2021). It advised:
1. It had an annual tree survey in place to ensure trees were managed in line with relevant legislation. There was no legislation that requires a tree to be pruned on a frequent basis. It therefore disagreed that any tree, unless posing and immediate threat to public health or property, is in a condition of neglect.
2. Annual cutting of trees would not be in adherence to BS3998 best practice for tree works. Dependant on species there were some instances where established hedges could be sided up or topped on an annual basis. Dependant on the size of the trees when it took over the management of them it may not have been practicable or of any merit to reduce their height if they were already well established. It was evident and recognised by the resident’s tree surgeon that it had carried out maintenance by siding up away from a highway in line with the requirements of legislation.
3. The grounds maintenance charge covered hedge cutting and the removal of tree growth below 6ft. The trees in question were of a substantial height and fell outside of the remit of grounds maintenance in terms of height reduction.
4. The works undertaken to the trees had little to do with the grounds maintenance service currently in place. There was no requirement, either legislative or within best practice that suggests a tree should be reduced on a regular basis. There were exceptions to this such as a pollard, or an existing hedge but the row of trees in question did not fall into this category. It could not confirm the size of the trees when it took over their maintenance nine years ago, but their growth height would suggest they were not of a size practicable for a regular reduction, and to have done so would not have been in line with best practice and would have substantially increased costs for the residents.
5. Tree works and their associated costs were identified as a service separate from grounds maintenance. This was because it required more specialist equipment and training and greater costs to carry out. It had capped the charge passed to residents.
6. It had not received other reports of property damage from the remaining trees at the site, but it would instruct its regional supervisor to visit and identify if there was a requirement for any additional works.
7. The remaining trees for the site fell within its management remit and would be surveyed on an annual basis for any high risk with appropriate works put in place. It would commission another full detailed site survey to identify any required works due to the trees on site and advise the resident of the outcomes. However, it would not regularly reduce in height established trees in good health, unless they were posing a risk to persons or property as in line with the Occupiers Liability Act.
The resident escalated her complaint to the landlord’s Designated Tenants’ Panel. In doing so, she argued that the leylandii were planted with the intention to only ever be a boundary hedge, therefore the Stage 2 response stating that there was no requirement to prune trees on a frequent basis was irrelevant as they were not intended to be trees.
On 9 July 2021, the resident attended the Designated Tenant’s Panel hearing. On 4 August 2021, the Panel sent its response to the complaint. It stated that the damage to the owner occupier’s fence was caused by the roots of the treeline growing into a drop bank in the private neighbour’s garden. This damage was therefore not picked up on the 5-year Survey, as the surveyor would not have been aware of the terrain beyond the estate boundary and therefore not known that the roots would have been causing issues. The Panel also noted that the damage caused by the roots bore no correlation with the height of the trees and so it was unable to consider claims that the grounds maintenance had been neglected, in line with this particular charge.
The Panel advised that the landlord had accepted a recommendation it had made to “ensure that when trees are surveyed and they are found to be near fences or boundaries, the surveyor tries to gain entry to check the garden surrounding the trees by requesting permission from the neighbouring property where reasonably practicable”.

Assessment and findings

Paragraph 39(g) of the Housing Ombudsman Scheme states that:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern the level of rent or service charge or the amount of the rent or service charge increase”.
Paragraph 39(i) of the Housing Ombudsman Scheme states that:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
In accordance with paragraphs 39(g) and 39(i) of the Scheme, this Service cannot consider the aspect of the resident’s complaint relating to the reasonableness and level of the service charge for tree works. In accordance with paragraph 39(i) the First-tier Tribunal (Property Chamber) can make determinations on all aspects of the liability to pay a service charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability a tribunal also decides whether service charge costs have been reasonably incurred and if so whether the standard of any services or works for which the costs are charged is reasonable. In determining the resident’s complaint, this investigation has focussed on the landlord’s maintenance of trees and how it responded to the concerns raised by the resident about this issue.
As confirmed by the landlord’s Tree Survey specification document and its website, the landlord is only required to carry out works to trees to mitigate against risk or to improve the condition of the tree or site. As such it had no obligation to cut back or carry out other work on the leylandii tree complained of on a yearly basis or on any other timed basis. Although the resident argued that the leylandii was meant to remain a boundary hedge, there is no evidence that the landlord was obliged to ensure the tree remained under a certain height. Essentially, the landlord was only required to carry work on the tree on a reactive, ad hoc basis.
Although the survey of June 2019 did not identify any works to the tree, the landlord shortly after became aware of damage being caused to a private resident’s fence, an issue, according to the Panel response, that may not be apparent from the survey. Having been made aware of the damage it was appropriate that the landlord mitigated the damage by felling the tree as this followed the guidance in the Tree survey specification document and on its website.
Aside from the question of whether the landlord followed its policy and procedures on trees, it cannot be confirmed that the landlord’s decision not to have pruned the trees in previous years impacted the course of events to the complainant’s detriment. This is because it cannot be confirmed that the resident, whose service charge prompted her complaint, would have had to pay less in total given than an annual tree pruning regime would have incurred an extra annual service charge (separate to the grounds maintenance charge). Furthermore, as the damage the neighbour’s fence was caused by the tree roots, it cannot be confirmed that pruning would have prevented the damage arising.
In responding to the resident’s complaint, the landlord took reasonable steps to explain how it had previously monitored and maintained the trees it was responsible for. In particular, it explained that it carried out surveys. It explained why it did not cut trees annually, but maintained trees based on a risk assessment, making reference to the best practice guidance it followed. The landlord also explained that tree maintenance of trees over 6ft was not carried out under the regular grounds maintenance service, as it was a specialist service.
The landlord also took steps to address the resident’s wider concerns about potential damage caused by other trees by agreeing for a visit by its regional surveyor and by confirming it would carry out annual surveys of the trees. Furthermore, “Learning from Outcomes” a Dispute Resolution Principle promoted by this Service. The landlord in agreeing to make efforts to check the gardens of adjacent to trees on the boundary demonstrated an intent to carry out more thorough tree surveys. As such it has demonstrated that it has learnt from the outcome of the resident’s complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord.

Reasons

The landlord had no obligation to cut back or carry out other work on the leylandii tree complained of on a yearly basis or on any other timed basis. Nor was it obliged to ensure the tree remained below a certain height.
Having been made aware of the damage to a private resident’s fence, it was appropriate that the landlord mitigated the damage by felling the tree as this followed the guidance in the Tree Survey specification document and on its website.
In responding to the resident’s complaint, the landlord took reasonable steps to explain how it had previously monitored and maintained the trees it was responsible for.
The landlord took steps to address the resident’s wider concerns about potential damage caused by other trees by agreeing for a visit by its regional surveyor and by confirming it would carry out annual surveys of the trees. It has also demonstrated that it has learnt from the outcome of the resident’s complaint in line with this Service’s Dispute Resolution Principles.

Orders and recommendations

It is recommended that the landlord commission a full tree site survey and advise the resident of the outcome, as stated in the Stage 2 response, if it has not already done so.