January 2019 – A High Hedge is a High Hedge is a High Hedge”

Author: Mitchells Roberton
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  • The High Hedges (Scotland) Act 2013 (“the Act”) came into effect in April 2014. It gave local authorities the power to act as adjudicators in disputes between neighbours about high hedges. Before the Act there was no legislative scheme to resolve disputes between neighbours about overgrown hedges.
  • The fact that the Act only came into effect in 2014 and we are, in 2019, on the third version of the Government Guidance suggests that legislating for this has turned out to be trickier than it might sound.
  • One reason is that different people have different ideas about what counts as a “high hedge”: it may depend which side of the hedge you are on. Of course, the Act defines what a “high hedge” is but such definitions can prove slippery when it comes to trying to apply them to natural physical features “on the ground”.
  • The original Government guidance included supplementary pointers as to what would count as a “high hedge”. That was removed in the second set of guidance but has now been replaced – in expanded form – in this new third version of the Guidance.

The Guidance

  • The Guidance runs to some 50 pages and covers the mechanics of local authorities’ adjudicatory functions. This Note however focuses simply on the question of what counts as a “high hedge”. This seems to have proven decidedly problematic.
  • There is a definition of “high hedge” in the Act which is as follows:

“(1) This Act applies in relation to a hedge (referred to in this Act as a “high hedge”) which—

(a) is formed wholly or mainly by a row of 2 or more trees or shrubs,

(b) rises to a height of more than 2 metres above ground level, and

(c) forms a barrier to light.

(2) For the purposes of subsection (1)(c) a hedge is not to be regarded as forming a barrier to light if it has gaps which significantly reduce its overall effect as a barrier at heights of more than 2 metres.”

  • But, whilst “a rose is a rose is a rose” may still be as true as it ever was it seems the same does not apply to “high hedges”. The statutory definition may sound precise enough but it seems it has not worked all that well for practical purposes in “live” cases.
  • Similarly, the description of a “high hedge” in the first set of Government Guidance doesn’t seem to have helped much either in that the second set of Government Guidance avoided the attempt to expand on the statutory definition: perhaps on the basis of “least said …”
  • But that reticence doesn’t seem to have been a great success either in that one of the catalysts for this third version of the Guidance was in response to calls for more pointers as to what does and what does not qualify as a “high hedge”.
  • This new Guidance now devotes paragraphs 40 to 62 (running to nearly five full pages) to this vexed question.
  • The Act allows individual local authorities to issue their own guidance, which is likely to be more specific about how that particular authority will carry out their duties under the Act. But local authorities must have regard to this Scottish Government guidance when issuing their own guidance.
  • The introduction to the Guidance ends rather plaintively: “This is the third version of Scottish Government guidance published since the Act came into force in 2014. The Scottish Government has no plans to publish further revised guidance …” So, let us hope the much-expanded exposition on what is and is not a “high hedge” makes further guidance on that subject unnecessary.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email paul@mitchells-roberton.co.uk

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