February, 2004
So what can we do when the Law is in force ?
A layman's guide to the new high hedges law, incorporated in sections 65 to 84 of the anti-social behaviour act, 2003.
Who can complain ?
The owner or occupier of a domestic property.
What can they complain about ?
They can complain that their reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.
Is "high hedge" defined ?
Yes. It is defined as "so much of a barrier to light or access as- (a) is formed wholly or predominantly by a line of two or more evergreens; and (b) rises to a height of more than two metres above ground level"
So can a complaint be made if the hedge is less than 2 metres tall ?
NO.
What if there are gaps between the evergreens ?
The act says that a line of evergreens is not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.
Is "evergreen" defined ?
Yes. "evergreen" means an evergreen tree or shrub or a semi-evergreen tree or shrub.
Does "high hedge" include the roots ?
NO. Roots are expressly excluded from this legislation, but civil court action for potential structural damage by roots is clearly provided for by the house of lords decision of Delaware Mansions v. Westminster Council, 2001. Notes on damage or potential damage by tree roots
Who do they complain to ?
To the Local Authority in whose area the hedge-owner's land lies.
Does it cost anything to make a complaint ?
YES. The Local Authority may charge a fee and are free to set the level. The L/A will have discretion to refund the fee in whole or in part in certain circumstances.
Is the Local Authority obliged to accept a complaint ?
No. The L/A may decline to accept the complaint if it considers that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the authority, or that the complaint is frivolous or vexatious. This provision is designed to prevent malicious and unfounded complaints, and also to ensure that a hedge-victim has at least tried to reach agreement with the hedge-owner as to a reasonable height. As previously advised by Hedgeline, victims should have kept a record of dates when verbal or written requests have been made to the hedge-owner, and the responses to them, or absence of response. Ideally a formal complaint to the L/A will be accompanied by a copy dated letter of previous requests to the hedge-owner, and a note of the result gained &endash; or the lack of result gained !
If the Local Authority accepts the complaint as valid, what do they do next ?
The L/A must then investigate the complaint, and decide whether or not it is justified, i.e. whether the height of the high hedge specified in the complaint actually is adversely affecting the complainant's reasonable enjoyment of their domestic property. Whether the decision is positive or negative, the L/A is obliged to notify the decision to the complainant(s) and to the hedge-owner, and explain the reasons for it. (It is presumed that this notification will be in writing, though the Act is not entirely clear on this point).
Will the Local Authority investigating officer just make a personal assessment of the situation, or will he have to follow specific guidelines ?
National guidance notes and advice will be issued to all Local Authorities, in an attempt to ensure a standardised assessment of whether a hedge is "too high". The Act will not come into force until such guidance notes have been approved by the Government. Hedgeline is continuing to lobby hard to ensure that these guidance notes are realistic & workable.
If it is decided that the hedge is too high, what happens next ?
The L/A will then issue a "remedial notice" to the hedge owner, specifying
(i) initial action to be taken by him; (ii) any preventative action to be taken.
(iii) The penalties for failing to comply with the notice.
The initial action is the action to be taken by him to reduce all or part of the hedge to the height calculated to be reasonable.
The preventative action is the action deemed necessary to maintain the hedge at or below the height calculated to be reasonable.
This notice is valid as a "local land charge" on the deeds of the property, even if the property changes ownership.
Can it be ordered for the hedge to be removed altogether ?
No. Nor can it be ordered for the hedge to be reduced in height below two metres. (The most recent version of the Government Guidance notes indicates that the local authority should not order a height, if reduction to this height would mean a risk of killing any of the trees as this would be the same, in effect, as ordering removal).
How long has the hedge-owner got to carry out the necessary work ?
The remedial notice will be stamped with its issue date. The notice will cite an operative date. This is a date at least 28 days after the issue date, and is the date on which the notice takes effect. The notice will also cite a compliance period, which is the time considered sufficient for the work to be carried out.
For example, where the issue date is 1st June, the earliest operative date will be 29th June; if the compliance period calculated is 30 days, then that compliance period will end on 29th July. Only after that date could proceedings begin for non-compliance with the notice.
So even if the complaint is upheld, we may have to wait two months or more for the hedge height to be cut ?
Yes. This Act, in keeping with very many others, does not provide for the work to be carried out straightaway.
Can the notice be withdrawn by the Local Authority ?
Yes. The L/A issuing the notice may withdraw it, or waive a requirement of the notice at any time, but must notify the complainant that it is doing so. 1/
Is there an appeals procedure ?
Yes. Any party to the dispute may appeal against the decision of the L/A, if they are unhappy with it. An appeal must ordinarily be lodged within 28 days of the issue of the L/A's decision. In England the appeal will be to the Secretary of State; in Wales the appeal will be to the National Assembly for Wales but address it to the planning inspectorate of your local council. Regulations are being drawn up to prescribe the details of the appeal procedure.
What happens if the hedge-owner refuses to co-operate with the Local Authority investigation ?
The L/A is given legal power of entry into a property in order to investigate a high hedge complaint, and to carry out works which the hedge-owner has failed to do. The cost of such works is recoverable at law from the hedge-owner.
What offences may be committed by a hedge-owner ?
The Act creates an offence of failing to comply with a remedial notice. On conviction for such an offence at a Magistrates Court, the offender may be fined up to £1000 (at present rates). The court may also order the offender to carry out the works originally directed, and if he still fails to comply, without reasonable excuse, he may be fined at a rate of £50 per day that the work remains uncompleted. It is also an offence to obstruct an officer of the council exercising a power under this Act, and that too is punishable by a fine of up to £1000.
What action can the Local Authority take if the hedge-owner refuses to comply with a notice to cut the hedge ?
The L/A may simply send in workmen to carry out the work, and then charge the hedge-owner for the full costs. The costs are recoverable as a local land charge on the property, so would be binding on successive purchasers of the property. Effectively this means that, however awkward a hedge-owner wishes to be, and however prepared he is to go to court and pay fines, he must consider that the subsequent registered land charges will militate against his ability to sell the property freely. This consideration may be more effective than the threat of fines.
If the hedge-owner is a company, not an individual, does the Law still apply in the same way ?
YES. A "body corporate" can be prosecuted in the same way as an individual, and so can individual officers of that body corporate.
Is it possible that the scope of complaints against high hedges, and the definition of a high hedge, may be amended in future ?
Yes. Built-in to the Act is the power for the Secretary of State to make regulations amending those provisions of the Act, i.e. without having to go back to Parliament for authority to do so.
This means that in the light of experience of initial working of the Act, the definition of high hedge may be amended, e.g. to include non-evergreen shrubs, and the grounds of complaint may be expanded.
Will Hedgeline be disbanded when the act comes into force ?
DEFINITELY NOT. The concerted influence of Hedgeline members, acting together, will certainly be required to monitor the implementation of the Act, and to ensure that all Local Authorities accept their responsibilities under the Act. Unless positive action is taken, the problem of high hedges will just keep growing! 2/
What will be the best form in which to make a complaint ?
Hedgeline will issue more detail as to the best way to lodge a complaint after the Government Guidance notes for Local Authority officers are issued. In the meantime see the 'Concise Notes on Hedge Law section 6'.
The original version, based on the DRAFT guidance notes was written by Alan Bridgman.
Full text of the Act - Part 8 of Anti-social Behaviour Act
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