February 2014 – Good neighbours & high hedges

Author: Mitchells Roberton
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Something was said about high hedges making good neighbours in our BPU for November 2013: http://www.mitchells-roberton.co.uk/bullet-point-updates/november-but-here-there-are-no-cows-or-good-news-for-hedge-trimmers Something more is said about it here because the High Hedges (Scotland) Act 2013 (“the Act”) will be fully in force as from 1st April. (The question as to whether anything is to be inferred from its coming into force on April Fool’s day is disregarded.)

A brief recap on the overall aim of the Act

 

  • As was said in our November BPU:

“Most boundary fences or walls do not exceed two metres in height because planning law usually requires planning permission for a wall or a fence higher than that. But there is no such restriction on planting trees or shrubs to make a hedge – despite the fact that a hedge can easily be much more than two metres high. And there is no other legislation in Scotland which governs the height of a hedge.

 

There has been recognition of the difficulties that high hedges can cause between neighbours for quite some time…”

  • The law as it stood didn’t provide any ready resolution of neighbour disputes about high hedges. The Act is designed to plug that gap.
  • Section 31 of the Act provides for the issuing of guidance in relation to the Act by both (a) Scottish Ministers and (b) local authorities. So not only will we have the benefit of a 35 page Act (including the Explanatory Notes) about the matter but we also now have the benefit of 41 pages of guidance from Scottish Ministers http://www.scotland.gov.uk/Resource/0044/00445025.pdf and, who knows, perhaps escalating numbers of pages of guidance will be issued soon enough by individual local authorities.
  • The definition of a “high hedge” in the Act is “a row of two or more trees or shrubs, rising to a height of more than two metres above ground level, and which forms a barrier to light”.

The aim of this Note

 

  • The November 2013 BPU gives a bit more about the background and aims of the Act. This Note is designed to give some pointers about what is contained in the Scottish Government guidance issued this month.

Some pointers

 

Applications

  • Where neighbours are unable to resolve disputes about high hedges between themselves there will now be scope for making an application to the local authority to adjudicate on the matter.
  • An application may be made by an owner or occupier of a domestic property where s/he considers that the height of a high hedge (as defined above) on another’s land “adversely affects the enjoyment of [the applicant’s property] which an occupant of that property could reasonably be expected to have.”
  • The local authority is required to dismiss an application if the applicant has not first taken all reasonable steps to resolve things with his/her neighbour or if the application is frivolous or vexatious.

Fees

  • As regards application fees the Act does not prescribe what these must be. Instead it is largely left to the discretion of the local authority. The Guidance however does say:

“The legislation is intended to be cost neutral for local authorities and not a source of excess [sic] revenue.”

 

Inviting representations

  • If the local authority is satisfied that the application falls within the scope of the Act then they will generally share the application with the relevant neighbours and invite representations from them. And the authority will usually make a site visit to inspect matters for themselves.
  • The authority must then decide whether the hedge does adversely affect the enjoyment which an occupier of the applicant’s property “could reasonably be expected to have”.

High hedge notices

  • If the authority decides it does “adversely affect” such enjoyment then it must issue a “high hedge notice” detailing what action is required (a) to alleviate the problem, and (b) to prevent a recurrence of the problem.
  • Unsurprisingly, as the Guidance acknowledges, the action required to alleviate the problem will most likely be to “reduce the height of the hedge”.

Local authority enforcement action

 

  • If a “high hedge notice” is issued the local authority have powers to undertake the work themselves and recover expenses if the owner/occupier of the relevant land fails to take the necessary action.

Appeals

  • There are provisions for appealing a local authority’s decision to the Directorate of Planning and Environmental Appeals. There is no right of appeal beyond that although parties may seek a judicial review on a point of law.
  • In particular there is no right of appeal against a local authority’s decision to dismiss an application for a high hedge notice, either because reasonable steps have not been taken to resolve matters or because an application is frivolous or vexatious.

 

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