(SCOTHEDGE PREPARATORY DRAFT)
High Hedges, Trees, Shrubs and Plants reducing the reasonable enjoyment of neighbouring residencies.
The legislation will consist of an enabling bill which empowers and requires Local Authorities to deliver a remedial order to the owner of trees, hedges, shrubs or other vigorously growing plants, hereinafter all referred to as plants, should the owner fail to remove a problem caused by their plants to the detriment of a neighbouring property. Should the plant owner fail to implement the remedy, then a fine will be prescribed and the Local Authority will be empowered to enter the plant owner’s land to carry out such remedial works as are necessary and charge the plant owner for all work carried out and have the right of access to the owners property to complete this work.
The identification of problems caused by such plants, the scope of the remedial order and the procedures to be followed are contained in these “Guidelines”.
The Guidelines also contain information to the grower of plants that either presently or may in the future cause problems to a neighbour and for the complainants, so that all are aware of the considerations and constraints that apply.
It is also the intention of these Guidelines to limit any Local Authority involvement except to cases where they are being breached and the plant owner is refusing to undertake remedial measures.In instances however where an elderly, ill or vulnerable person may become engaged in a complaint dispute with an unsympathetic owner, the Local Authority may take the initial step of advising that owner that they are intent on investigating a possible problem they may be causing to his neighbour/s.
The Guidelines should enable a commonsense approach to the identification of problems caused by neighbouring plants and the avoidance or removal of such problems. Without a complaint, recognisable under the Guidelines, then there will be no Local Authority requirement to intervene. The legislation will therefore not restrict the growing of plants within a property but will come into force only when problems are raised by neighbours which may be identified in the Guidelines.
In this respect the legislation does not interfere with the right to grow plants but does interfere when plants cause problems to others. Such problems, in terms of the Act would then fall under the definition of the term “nuisance”.
The “Guidelines” can be assigned to:
1) Unacceptable Plant Impacts.
2) Local Authority Guidance.
3) Legislation Aims.
1.1 The domestic garden or surrounding land owned by others is always a significant asset to where one lives and may be cultivated to provide an attractive recreational space or landscape made all the more attractive by good horticultural management. The property boundary forms the interface between owners of adjoining lands. The wrong species of plant, in the wrong place or under inadequate management can cause severe problems for an adjacent neighbour. It is considered reasonable therefore for the affected householder to expect consideration from the owner/s of any problem growth plants which whilst being deployed to suit its owner may be the subject of nuisance to a neighbour. Growing plants require routine management.
1.2 A reasonable complaint would be one which, as a result of an unacceptable plant impact, is defined within the Guidelines of the legislation.
1.3 Such complaints would relate to loss of reasonable enjoyment of a property through:
a) Unacceptable or excessive domination by high plants which are causing nuisance to neighbouring property.
b) Unacceptable or excessive encroachment by roots and / or branches which are causing nuisance to neighbouring property.
c) Unacceptable or excessive deposition
(whether seasonal or not), of branches, leaves, needles or resin deposits from plants overhanging or close to the boundary which are causing nuisance, or damage to neighbouring property
d) Damage through land heave, subsidence or water shedding.
e) Loss of reasonable access to a communal cherished view or views.
f) Loss of light (whether seasonal or not) caused by the planting or proliferation of an excessive number of plants which are causing nuisance to a neighbouring property
g) Loss of light (whether seasonal or not) to greenhouses and conservatories of a neighbouring property.
h) Loss of garden fertility (whether seasonal or not) through light deprivation or nutrient starvation of a neighbouring property.
i) Insect infestations (whether seasonal or not) from dominant plants close to a neighbouring property.
j) Danger from the proximity of problem plants whose height exceeds the distance between them and a building and whose height from the ground level at the building to the ground level of the plant plus the height of the plant exceeds the height of the building or has potential for doing so.
1.4 Whilst most undesired impacts arise from lack of consideration or ignorance
of the need to maintain boundary plants, there are cases where such plants are deployed with the intention of causing harm to a neighbouring property .In such cases it may be appropriate to also seek legal recourse in addition to the issue of a remedial order.
1.5 Complaints relating to loss of reasonable enjoyment of a property through the
impacts outlined in 1.3 must imply that nothing should be ruled out when consideration of the guidelines is being applied. For example it could be that a single deciduous tree or even a reasonable sized beech hedge is the cause of a serious problem, then that problem it causes should equally be considered within the protocol of the Scottish legislation.
1.6 If in effecting a remedy to a problem plant growth by trimming branches or by cutting back to the boundary line any excess of root extension or by reducing the height growth to a more reasonable and acceptable size that plant growth subsequently dies neither the Council nor the neighbour raising the complaint shall be held responsible. The responsibility for the maintenance and non impact on neighbouring occupiers for the plant rests solely with the owner.
2.1 The Local Authority will make available guideline leaflets which will outline good practice in the deployment and management of plants so as to avoid the above problems. When a complaint is received, drawing the attention of the parties to the Guidelines and to the penalties against causing problems to a neighbour, will in many cases be all that is required and this outcome should be encouraged within a reasonable time period (6 months ??).
2.2 Where a complaint can be recognised as a topic of the Guidelines and is not responded to by voluntary removal of the problem, then the Local Authority will issue a formal warning to the plant owner that should the problem not be removed, then a remedial order will be issued and a penalty for non-compliance will be prescribed. A fee can be charged to the plant owner for assessment of the problem. Should the complaint not be recognised within the Guidelines nor appear on inspection to be of substance , then no further involvement of by the Local Authority will be necessary. In such cases a fee can be charged to the complainant by the Local Authority for determining the complaint as not having satisfied the terms of the Guidelines.
2.3 Issue of a remedial order can be appealed against (within 14 days of issue?). If this happens an appeals procedure will be implemented by the Local Authority.
2.4 Notification by the Local Authority of a failure under the Guidelines of a complaint can also be appealed against (within 14 days of issue?). If this happens an appeals procedure will be implemented by the Local Authority.
2.5 The cost of the actions raised under 2.3 & 2.4 will be borne by the person or persons raising the appeal, unless that appeal is approved ??.
2.6 The issue of a remedial order is a last resort action following the warning procedure.
2.7 The resolution of the problem should not be left to personal confrontation of the participants but be accomplished by compliance with a request from the Local Authority to remove the problem. The process should be similar to a complaint to a Planning Department over a planning issue.
2.8 In effecting a satisfactory remedy for any improperly sited and/ or mismanaged plant/s, that remedy should not specifically exclude nor restrict the actual removal of the plant/s provided the necessary parameters of the Act have been satisfied and that the problem plant/s has/ have been proved to be the cause of the nuisance.
3.0 Legislation Aims
3.1 The intention of the legislation is to secure an equitable resolution of problems arising through the careless or vindictive management of plants owned outside a residence but having an undue and damaging impact upon the residence so as to reduce the quality of life for the affected residents. This reduction in quality of life arises both from the direct influence of the problem plants and from the stress in being forced into personal contention with the plant owner. The combined effect of pressure on the fair living space and a personal confrontation can for many people be very uncomfortable and stressful. In the case of man made structures, the acceptable solution lies within the authority of a Planning Department. The decisions are in accordance with established guidelines and direct personal confrontation between vested interests is in the main avoided. The motivation of this current legislation is to attain a similar civilised resolution where plants are causing identifiable problems to nearby residents.
3.2 Owners of plants may respond abusively when their right to grow whatever they like is challenged by neighbour. It is easy to understand that being under no statutory constraint this unfortunate response becomes an indecent means towards the diversion of reasoned argument and being forced to admit that the complainant has a valid case. The authoritative Guidelines and the provision of a statutory penalty if the problem is not addressed should in itself tends to now prevent any such this unreasonable stance. and combined with authoritive guidelines, all but the most intractable contentions are likely to be avoided.
3.3 In a very real sense, the complainant bears financial maintenance costs which cannot be avoided if the plant owner is intransigent. Their house property values can plummet when a neighbour dispute is active. The continuous abatement of somebody elses hedge may require the employment of contractors which is expensive and on going. Loss of a communal cherished view may substantially lower the value of a property. Should frustration cause a complainant to undertake illegal trimming or cause a hedge or tree to die, then if taken to court, very large astronomical fines may be imposed. The affect of the dispute and the problem is quite able to amount to theft of the ability to survive retirement or to maintain a reasonable quality of life. Provision of fair resolution will avoid these harmful and severe financial risks and penalties.
3.4 It is not everyone who can face an inconsiderate or vindictive plant owner without considerable stress. With the vast majority of the complainants simply wishing to enjoy the final years of their life in peace with the world, the misery of a personal dispute can be devastating. It is reasonable to assert that in many cases, the stress will actually shorten life. Where complainants are already suffering heart problems or high blood pressure, the imposition of unavoidable stress will certainly result in risks to health. By supporting the complainants with statutory guidelines and protecting them by appropriate penalties, there is a far better chance that life can be returned to normal with the such stresses removed.
3.5 In a small number of cases, the deployment of plants close to a residence may be vindictive. A landowner wishes to hide a building which can be seen from his property. A plot owner having been refused permission to build, may deploy, as an example, a row of Leylandii or whatever other problem plant/s just to penalise the resident/s who may have raised objections to the development. The legislation will prevent such vindictive deployments by enabling the complainant to invoke the Guideline standards and achieve remedy.
3.6 The matter of growing hedges to provide privacy should be placed within the context of the height of wall which the Planning Department might accept. Otherwise the high hedge is simply a means for defeating the planning regulations. There is no justification for a 10 metre high hedge under the pretext of privacy if it presents problems to those whose homes are on the other side of it.