- Robert Frost’s poem Mending Wall tells of two neighbours’ annual and painstaking task of mending the wall between their orchard properties. “Good fences make good neighbours” intones one of them – as his father did before him. The other questions that incantation with the lines:
‘Why do they make good neighbors? Isn’t it
Where there are cows?
But here there are no cows.”
- In a convoluted way this is topical stuff: 29th November is the closing date for the call for evidence the High Hedges (Scotland) Bill. Maybe good fences do make good neighbours. But high hedges can make bad ones: high hedges poorly maintained that block out a neighbour’s light can sour neighbourly relations to breaking point and beyond. Hence the Bill is designed to provide a solution where otherwise there may be an impasse. (It is proposed that the Bill will apply irrespective of the cow situation.)
- Part 8 of the Anti-social Behaviour Act 2003 tackled high hedges. It applies where an owner or occupier of a domestic property says that his reasonable enjoyment of that property is being adversely affected by the height of another’s high hedge. But Part 8 of the Act only applies in England and Wales. The Bill is designed so that we have similar legislation but for Scotland.
Some background to the Bill
- 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. There was a proposal for a Bill covering high hedges in 2002; and 2003; and 2006. But it was only last month that things got as far as the introduction of a Bill to Parliament.
What counts as a high hedge?
- The term “high hedge” needs, of course, to be a defined. The definition proposed is that it is a hedge which:
(a) is formed wholly or mainly by a row of two or more evergreen or semi-evergreen trees or shrubs; and
(b) is more than two metres above ground level; and
(c) forms a barrier to light.
- Usually one thinks of a “row” as being quite a number of the same thing: for example the phrase “a row of houses” conjures up perhaps at least three houses? But the definition in the Bill is clear on this: two is sufficient to qualify as a “row”.
- The definition refers to “evergreen or semi-evergreen trees or shrubs”: in other words the sort of trees that form a barrier to light all year round. But this does not mean that the hedge must be composed only of evergreen or semi-evergreen trees or shrubs. The “row” must be composed “wholly or mainly” of such trees or shrubs. If, for example, there were two or more evergreens with a deciduous tree in the middle that could also be caught by this definition.
What can you do about a high hedge?
- The overall scheme of the Bill is that if affected by a “high hedge” an applicant may apply to the local council seeking the issue of a “high hedge notice”; the local council is given powers to issue such a notice requiring a hedge-owner to take action to remedy the problem; and, if the hedge-owner fails to do so the local authority may do the work instead and bill the hedge-owner for it.
- There will be an official application form and there will be a fee to pay. The Bill does not specify any upper limit or cap on fees; the idea is however that the fees should not exceed the council’s reasonable costs in deciding the application. Councils are also given power to refund fees in certain cases.
- Importantly, before making an application you must “take all reasonable steps to resolve the matters in relation to the high hedge.”
- In particular, the Bill provides that in trying to resolve matters you must have regard to any guidance issued by the local authority in seeking a resolution. It is envisaged that these “pre-application requirements” will vary from council to council. There is as yet no published guidance on this but the UK Government has issued guidance on this aspect for the equivalent legislation in England and Wales which may be helpful and can be found here: http://www.communities.gov.uk/documents/planningandbuilding/pdf/highhedgescomplaining.pdf
A particular difference between the Bill as proposed and the similar legislation in England and Wales
- As mentioned, England and Wales already has legislation in place (under part 8 of the Anti-Social Behaviour Act 2003) covering high hedges. This is similar in many respects to the Bill as proposed. But, under the 2003 Act, if the council issues a high-hedge notice requiring an owner to remedy a high hedge problem and the owner fails to comply that may constitute a criminal offence. The High Hedges Bill however does not reflect that. The Policy Memorandum for the Bill says this:
“the powers of enforcement and cost recovery which this Bill grants to [councils] should be sufficient to encourage compliance…it would [not] be useful to criminalise people for failing to control high hedge growth in the context of trying to resolve problems between neighbours.”
Assuming the Bill is passed its very enactment may serve to encourage neighbours with disagreements about high hedges to resolve them: the mere fact that there is then an official process for requiring a hedge-owner to take action may serve as an incentive for neighbours to achieve a resolution without involving officialdom. But maybe that hope is over-optimistic.
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: firstname.lastname@example.org.