Behanllp Chartered Surveyors
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High Hedges

An Overview of New Nationwide Legislation to Control High Hedges (& Rogue Neighbours)

Problem hedges (commonly Leylandii and, to a lesser degree, Lawson Cypress) are a relatively limited but high profile issue much loved by television documentaries and tabloid press. In extreme instances, violent disputes have escalated leading to murder and suicide.

The Government estimate that there are at least 10,000 cases of problem hedges to be dealt with by the new legislation.  On 17 November 2003 the Anti-Social Behaviour Bill received Royal Assent and Part 9 includes key provisions to deal with problem hedges in England and Wales. The provisions and procedures contained within Part 9 are expected to come into force by Autumn 2004 following further fine-tuning and public consultation.

 

Prior to Act

Trespass

There is limited protection in common law for a hedge to be significantly reduced in height. No right exists to gain access to neighbouring land to carry out works to a hedge or tree without the consent of the adjoining ownership. If a person enters onto the hedge owner’s land then that would be a trespass.

 

Roots

If roots extend across the freehold boundary and cause damage to property the duty rests with the hedge owner to take such steps as are reasonable to ensure growth is controlled to avoid damage. Leading cases include LE Jones (Insurance Brokers) Ltd -v- Portsmouth City Council [2002] and Delaware Mansions Ltd -v-Westminster City Council [2001].

 

Overhanging

There is a right to cut back a hedge that overhangs a boundary but only up to the freehold line and no right to reduce the height of a hedge if the mass of it is on the other side of the boundary, see Jones -v- Stanton.

 

Light to Buildings

There is no clear legal precedent that a tree or hedge can be an obstruction to light in law. Whilst Metaxides -v- Adamson [1971] held that the construction of a trellis and plants as a principal screen rather than as a hedge growing randomly and naturally did cause an injury to a right to light, this is an exception to the rule and, in reality, the law relating to rights of light is of little assistance in controlling a high hedge.

 

Light to Land

There is no right to light to open land only to a defined aperture such as a window. There is no protection in common law to land being shaded by a high hedge.

 

The Act defines a “hedge” as two or more evergreens or semi-evergreens that form a barrier to light or access. Note that evergreens are not limited to conifers. The hedge above is evergreen and contains no conifers.

  • The legislation does not apply to deciduous plants, single trees or a hedge that stands less than 2m;
  • The Act only applies to domestic property; a dwelling or a garden/yard used an enjoyed wholly or mainly in connection with a dwelling whether as an owner or occupier (not necessarily an equitable interest and can be a tenant);

 

Complaints Procedure

The key issue is whether the reasonable enjoyment of the adjoining property (or properties) is affected by the height of a hedge:-

The local authority will decide (upon payment of a fee which may be refundable depending on the circumstances) if a nuisance is caused using flexible criteria;

  • The local authority have access rights to the hedge owner’s land on 24-hours notice;
  • The local authority will take account of a variety of factors, ie privacy, indigenous nature of the neighbourhood, features of land division, etc. The local authority will also assess the affect on daylight to windows and sunlight to amenity areas.  
  • If a hedge is considered to adversely affect a complainant’s property, a Remedial Notice will be issued by the local authority stating what action is required to remedy the nuisance and prevent its re-occurance in the future. A Notice shall be a local land charge and is binding on any owner/ occupier of the land where the hedge stands;
  • The Notice states the operative date to which it takes effect. The date will be not less than 28 days from the issue of the Notice itself;
  • The Compliance period will be a reasonable period for the hedge owner to undertake the specified work/action.

 

Enforcement

  • Failure to comply with the Notice is a criminal offence and may result in a fine up to £1,000 and a continuing fine on a daily basis for non-compliance;
  • If no action is taken during the Compliance period the local authority can access the land, undertake the work in the Notice and recover the cost of doing so from the hedge owner. This is subject to 7 days prior notice.

 

Appeal

There is a right of appeal within 28 days to the Secretary of State or the National Assembly for Wales. The procedure will be handled in much the same way as a Town & Country Planning Appeal through the Planning Inspectorate. An appointment of an Inspector will hear the evidence and determine or withdraw an appeal on behalf of the local authority.

 

Flexibility

The intention is for the Act to be amenable and flexible principally to avoid limiting the Act too far allowing local authorities to set standards appropriate to particular areas. In this context, the provisions of the Act may be modified in the future to incorporate, say, revised definitions of a hedge or extend the scope of grounds for complaint to the local authority.

 

Broker a Settlement

A useful booklet “Over the Garden Hedge” published by The Office of the Deputy Prime Minister gives a clear framework for discussion and practical advice on the resolution of disputes similar to that of the Agreed Surveyor which is an acceptable procedure under Section 10 of the Party Wall etc Act 1996.

 

Summary

The drafting of the Act offers flexibility without demonising any particular plant species. The guidelines are capable of being easily interpreted by householders in the first instance without needing recourse to solicitors.

RICS

RICS Guidance Note “Party Wall Legislation and Procedure”

Mark Behan is a member of the working group that produced this important guidance note. This guidance note provides advice to surveyors who accept instructions in circumstances where the Party Wall etc. Act 1996 may be relevant.
It looks at circumstances where the Act will apply as well as the procedures to be followed where it does. It contains all the specimen forms and letters that are required in this area of work. http://www.ricsbooks.com

RICS

RICS Guidance Note “Daylighting and Sunlighting”
Mark Behan is a member of the working group that produced this guidance note. This guidance note provides advice to surveyors who accept instructions to advise on daylight, sunlight and shadow calculations for developments. It explains the different types of assessment available, reporting procedures and the roles that the Chartered Surveyor will need to perform. http://www.ricsbooks.com