THE SCOTTISH PARLIAMENT CAN PROVIDE A BETTER HIGH HEDGES BILL
The letter succinctly demonstrates the simplicity of the High Hedge dispute. Some might say that it is even a sensible response by a hedge owner who does not wish to be drawn into negotiation with a neighbour in the realisation that there is no legal requirement to negotiate away any right to grow a hedge to any height within their garden.
It is then not so incredible to conclude that the hedge owner and the complainant find themselves very quickly at war, there being no availability of a statutory solution. The hedge owner has all the rights of ownership to resist an undesired alteration of his hedge. There are no balancing rights which might enable the complainant to argue for a hedge height reduction. There are not even any guidelines to suggest a sensible resolution. The only option is direct personal confrontation where only the dominant neighbour can win.
The Scottish Parliament quite rightly resisted the temptation to approach the matter through the Anti-Social Behaviour Bill, the route followed at Westminster. Although the side effects of a hedge dispute can include anti-social behaviour by either party or both, the cause of the dispute lies within the absence of any statutory means to equalise the vested interests and secure a fair occupation of the residential land adjudged by independent arbitration.
Perceiving the Hedge owner as being wholly anti social and the complainant as being an unreasonable neighbour does little to enable a fair outcome and the prevention of contentious disputes.
The Scottish Parliament benefiting from hindsight of the English Bill has a gifted opportunity to leap across the painful evolution of the work at Westminster and seek a Bill which will lance hedge disputes before they go bitter and apply the commonsense elimination of high hedge problems by the provision of a Local Council Service available to anyone feeling that a third party arbitration would avoid the risks of doing personal battle with a neighbour.
Problems South of Hadrian’s Wall
The Westminster High Hedges Legislation was initially conceived as Private Members Bills which were repeatedly destroyed by wrecking amendments. The legislation was eventually secured by inserting Stephen Pound’s final Bill in the Anti-Social Behaviour Bill in Autumn 2003 and finally implemented in June 2005.
This long gestation period whilst resulting in an improved public perception of the unfairness of hedge battles also locked in the perceptions of the early Bills which perceived the image of an anti-social hedge grower facing an irate neighbour who was fighting to protect his home with anti-social fervour. This outlook encouraged the legislation:
· To charge the complainant alone for an arbitration service.
· To offer the arbitration as a service of last resort only if the contention became insoluble.
· To associate the contention with anti-social behaviour.
· To seek compromise solutions rather than problem solving solutions.
This “feel” to the legislation has not benefited any of the involved parities in that the admirable aims of arbitration are only applied once the complainant and hedge owner have established their respective positions of dispute. The arbitration is seen as a weapon for the complainant to use against the hedge owner and the arbitration service sets off as being unwelcome by the hedge owner.
In addition the guidelines and law were flawed in that they stopped short of requiring the removal of a problem hedge. Whilst this was in agreement with the recognition that a 2 metre high hedge could not be considered as a problem, it gave rise to a major difficulty that if trimming to an acceptable height killed the hedge, a dead hedge becomes a removed hedge and therefore it could not be trimmed to such an extent. This has resulted in the situation that arbitration has favoured the complainant, exacted the fee (in this case £650), and then said that no remedy was available under the law.
Finally the fees to be charged by Local Authorities for arbitration were not capped with the inevitable outcome that most Local Authorities charge around £350, a small number do not charge and a small number charge over £600 to add to the woes of the complainant.
Whilst these fundamental deficiencies may very well be overcome by further development of the guidelines, they have done little to enhance confidence in the legislation and in the intentions of the ODPM. The legislation appears not to be sufficiently fit for the purpose for which it was intended.
It may be worthwhile for the Scottish Legislature to take account of the English legislation and to provide a better statutory enabling Bill and Guidelines.
AN ALTERNATIVE APPROACH
1) The Local Authority Service might be an early option rather be a path of last resort.
2) The fees for the service (if any) might be charged to both parties equally. If one party refuses then if they fail arbitration they should pay the whole fee for the service.
3) The loophole provided by the inability to trim a hedge if it risks killing it should be avoided.
1.1 The destruction of the opportunity to negotiate across the garden hedge occurs immediately the hedge owner stands upon his rights and refuses to negotiate. These rights might be so altered by the legislation that refusal to respond to a plea for relief from a hedge immediately brings to the attention of both parties that there are guidelines akin to planning regulations, which ensure that a fair outcome can be enforced by a legally empowered Local Authority Service.
1.2 It could be helpful for the service to be aware of local hedge problems before they escalate into serious dispute and simple failure to respond to a courteous letter by the hedge owner could trigger distribution of guidelines which make it clear that there is a route to solution which will ensue which will assume the casting vote in the matter and with powers of remedial enforcement.
This early intervention would have the intention of advising the parties of a requirement for reasonable solution so that if negotiation between the parties remains impossible, then the arbitration service comes as an expected procedure by both parties. If they come to an agreement forthwith, then the costs of arbitration can be avoided or accepted as the best way to reach an unbiased result. Unless the involved parties are friends with easy ability to resolve the problem, the first stage towards seeking trimming of a hedge might be an approach to the Local Council to obtain “Guidelines” and for the option of a third party management of the problem to be made available.
It could be advocated that the normal path to high hedge problem resolution should be adjudication or arbitration thus relieving both parties of the final judgement and a reduction in the chance of personal dispute. The appeal options would delegate any dissatisfaction with an outcome to an “official” office which could be seen to be acting impartially.
2.1 The English situation where the service fees are charged entirely to the complainant causes the hedge owner to take no penalty for refusing negotiation other than having to accept an outcome which would have been considered fair in the first place. The vindictive hedge owner can simply refuse to negotiate and thus ensure that his neighbour has to fork out the fee which cannot be reclaimed.
2.2 If following a reading of the guidelines both parties feel that arbitration should be used to reach fair resolution, then this arbitration would be truly a service which would serve both parties.
2.3 If following the reading of the guidelines Only one party, probably the complainant wishes to use the arbitration service, then the entire cost of the service might then reasonably fall upon the party which fails the arbitration process. It might even be the case that an even stiffer fee should be demanded from the refusing party to further encourage the even handed joint approach. This refusal to participate in formal and more friendly arbitration could be seen to be an unreasonable act indicative of a disregard for the tenets of the guidelines.
2.4 There will always be the case where some party claims that they are unable to call in arbitration because of poverty. This might be lessened by a lower scale of fees than the English mean of £350 in the case where both parties seek arbitration. This might be justified on the basis that the service is not invoked against the desires of either party and likely to be a more benign task for the local authority. There is also a very strong argument that pensioners on fixed incomes should gain concessionary fees since their fixed income may cause the payment to demonstrably impact upon their quality of life.
In this day of huge and rising Council Tax and Fuel Bills, a hedge dispute can very seriously damage the lifestyle of pensioners and others on small fixed incomes. Fighting a high Leyland cypress hedge above say 4 metres in height is impractical and dangerous for elderly and disabled people. Also for legal reasons it is safer to employ a professional tree trimmer to whom the task can be delegated. High fees only falling upon the complainant are patently unfair and punitive.
3.1 The essence of an enabling legislation which enables and requires Local Authority arbitration is the aspiration that the “Guidelines” can be responsive to realities so that a sensible outcome is achieved without every detail covered by the statues. In this manner adjustments post implementation may be carried out without the requirement for new legislation. There are however several requirements which may set arbitrators against Scottish Law. Such situations require to be understood and embraced by the primary legislation.
3.2 The Laws of Ownership may conflict with any enforced remedial trimming. Specifically should trimming damage a hedge might encourage a suit against the trimming agency.
3.3 There are apparently no Scottish Laws which enable the loss of a cherished view to be safely challenged.
3.4 There are no Scottish Laws which support loss of light.
The English Guidelines in themselves are probably a reasonable starting place but their compromised ability to be applied by a weak primary legislation is causing frustration and lack of confidence. In Scotland some points are particularly relevant:
· Cherished views have high significance where properties are purchase primarily to enjoy such views.
· Deciduous hedges such as beech can cause identical problems to evergreen conifers.
· Other plant such as Ivy supported by a fence ore wall can cause many of the problems of hedges and effectively raise the height of the fence or wall beyond a statutory constraint.
The law and its Guidelines should aim to sustain the reasonable enjoyment of a property capable of being seen as reasonable by a third party arbitrator. It should be a point of emphasis that light blocking is not the sole cause of unfair loss of a homes value and value to its owner.
The arguments that Hedge Disputes should not be seen as anti-social behaviour are probably correct in that whilst disputes may become anti-social very quickly, the cause is two parties fighting for their perceived rights within an unfair statutory framework.
There is a major role for the Scottish Legislation to establish just what these rights are following statutory adjustment to equalise the rights of the involved parties. A great deal could be done prior to legislation just to advertise reasonable solutions and that they are expected and that legislation to require solution is very likely to reach the statute books.
The balance of the Local Authority involvement should be to create the perception that, as is the case with planning regulations, there are community rules to be followed which might avoid unfortunate confrontations upon the knowledge that the problem solution will be enforceable upon the basis of a fair mutual “sensible” outcome which includes the nature of the specific local environment within which the requirement for hedge height reduction is sought.
It is important that the Law and Guidelines are formed to enable a largely “commonsense” outcome and where neither party in the process is forced to become a tyrant or a pleader.
The Scottish opportunity is to provide a useful service which is NOT SEEN AS A COURSE OF LAST RESORT but a useful and helpful means to avoid High Hedge disputes.