PLANNING ETC.(SCOTLAND) BILL

AMENDMENT

 

Introduction

 

The Westminster High Hedges Legislation takes the from of an enabling amendment to the Anti-social Behaviour Act 2003 supported by “Guidelines” which suggest how Local Authorities can use the legislation in order to arbitrate high hedge disputes and implement remedy.

 

The Scottish legislation seems likely to take a very similar form as an amendment to the Executive Planning etc.(Scotland) Bill which is currently progressing through its first stage.

 

The English legislation has been implemented since June 2005 and contains a small number of provisions which are causing problems which can be avoided in Scotland.

 

Specifically these provisions may be identified as:

 

  1. Limiting a hedge to an evergreen plant.
  2. Prevention of remedial trimming if it risks killing the hedge.
  3. Failure to define the Local Authority service fee.
  4. Charging fees to the complainant alone.
  5. L.A. only becomes involved for arbitration service.

 

Additionally the Local Authority intervention is seen as a last resort option once it has been established that the parties involved cannot come to an amicable solution.

 

These sources of difficulty might be overcome within the template of the Westminster amendment to ensure that Scottish legislation benefits from the English experience by addressing these problems and creating “guidelines” for the Local Councils to follow for a more positive management of high hedge problems in keeping with a Planning Bill as opposed to an anti-social behaviour Bill. Perceiving owners of high hedges as anti-social misses the underlying present inequity in Law over high hedges and the reality that the suppliant position of the complainant makes the amicable solution rely totally upon the goodwill of the hedge owner. Planning applications avoid such contentions by placing those involved at arms length with the “system” adjudicating in order to equalise vested interests.

 

Problems 1-5 are probably topics of the proposed amendment. The nature of the Local Council service may be best addressed in the “guidelines”.

 

This note will comment upon the amendment topics.

 

1.                 Limiting a hedge to evergreen plants.

 

A significant reason for high hedge problems has been the use of conifers such as the Leyland Cypress as hedging plants.  These are by no means the only cause of “loss of enjoyment” of a neighbouring dwelling. Beech hedges are typical of deciduous plants favoured by hedge growers.  Whilst evergreens maintain their light blocking qualities throughout the year, the “reasonable enjoyment of a property” can be affected by any hedge above a reasonable height so this restriction should be dropped.

 

 

2.                 Prevention of remedial trimming if it might kill the hedge.

 

In Section 69(3) of the English amendment remedial action cannot reduce a hedge below 2 metres or remove a hedge.

 

This has ensured that a high percentage of the worst high hedges cannot be dealt with since if a hedge is killed it is deemed to be removed.

 

This single provision in the English Bill is causing Local Authorities to agree that a high hedge is a problem but then tell the complainant that nothing can be done. It has not been clear whether the complainant gets a refund of the service fee.

 

It is thought that this outcome was not the intention of the act but an unforeseen outcome of the drafting.

 

Admittedly the existing hedge laws which regard hedges simply as the property of their owners can even bring people to court if abatement kills a hedge or root cutting causes it to fall over. The laws of ownership appear to take precedence over the trespass of roots and branches into an adjoining property. 

 

It should be that a high hedge may be trimmed down to whatever height alleviates the problem accepted by an arbiter regardless of whether it might kill the plant.

 

3.                 Failure to define the service fee.

 

The setting of the service fee in England has been left entirely up to the Local Authority. This has resulted in service fees ranging from 0 to £650 to achieve a postcode lottery when it comes to calling for a Local Authority Arbitration. Some LAs provide Senior Citizen discounts others do not. A great many hedge complainants are pensioners living of small fixed incomes whilst struggling to maintain the quality of life in their homes. The extremely high and lottery charges are known to prevent less well off complainants using the provisions of the High Hedges legislation which is unfair.

 

The fees charged would be best fixed at some reasonable value with concessions for those on low incomes.

 

4. Charging fees to the complainant alone

 

This is an unfortunate provision of the English Legislation which has several serious outcomes.

 

The vindictive hedge owner can refuse to negotiate simply to force the affected neighbour into arbitration.

 

The fee may be used by high charging LAs to frighten off complainants.

 

The complainant who may have suffered for years in contention with an unreasonable or even aggressive hedge owner is further penalised whilst the hedge owner simply has to accept remedial trimming which should have been carried out without dispute.

 

The solution to this may lie in the “guidelines” if the presentation of the intervention is seen as a helpful service rather than a punisher of the hedge owner. Progression from a counselling service to a regulatory statute could be a better path than simple arbitration. Under this regime, neither party would be classed as obstructive or frivolous until this appeared within an official process. It would then be much easier to charge the party which loses Local Council Arbitration. 

 

What is inappropriate is the complainant paying all.

 

5. Local Authority only arbitrates.

 

An opportunity is missed whereby early involvement of the Local Authority might guide hedge owner and complainant towards a sensible solution through the provision of guidelines and advice. By expecting the participants to establish proof

of failure to negotiate may achieve the commencement of hostilities and inappropriate expectations for solution. The whole process can get off to a very bad start if the initial contact does not go well upon the basis of ignorance.

 

 

Summary

 

Should it be feasible to solve these four problems within the framework of the English amendment, then it might save much time and effort to substantially accept the English amendment as the fundamental statutory framework for the Scottish High Hedges legislation.  However the “Guidelines” may require a unique Scottish solution to closer associate the growth of high hedges with planning regulations and the concept of statutory dominance over the vested interests of the complainant and hedge owner. Even identifying the affected dweller as a “complainant” and the hedge owner as being at fault is not an entirely helpful scenario.