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HIGH HEDGES

9th October, 2013

High Hedges can block out light to houses and gardens and cause friction between neighbours.

There is no common law to reduce the height of a hedge that is growing on land owned by another. Provided an owner has exhausted all other avenues for resolving their hedge dispute, people are now able to take their complaint about a neighbour’s evergreen hedge to their local authority under Anti-Social Behaviour Act 2003.

The Council will only consider a complaint if:

• It is made by the owner or occupier (tenant) of the property affected by the hedge,
• The property is residential.
• The hedge is situated on land owned by someone else – it need not be on the boundary line.
• The hedge detracts from the reasonable enjoyment of the home or garden because it is too tall.
• The hedge, or a portion that is causing problems, is made up of a line of two or more trees or shrubs,
• It is mostly evergreen or semi-evergreen,
• It is more than 2 metres tall,
• Even though there might be gaps in the foliage or between the trees or shrubs, the hedge is still capable of obstructing light or views.

There is a requirement to negotiate before making a formal complaint to the council, which might involve a letter, informal discussion or even mediation and the council will expect to see evidence of a recent attempt to reach an informal agreement. If the council does not consider reasonable steps to negotiate an informal solution it may reject the application for assistance from the outset.

Applications must be made in writing preferably on the council’s own high hedges complaint form designed to capture all the relevant information and submitted with the correct fee. Fees for the service vary between councils and can be substantial. There is no maximum fee in England but in Wales the fee is capped at £320. The fee is intended to encourage people to try to settle private disputes amicably, making sure that involving the council really is a last resort. The fee is also intended to help deter frivolous or vexatious complaints such as a repeated complaint.

The role of the council is not to mediate or negotiate between the complainant and the hedge owner but to adjudicate on whether the hedge is adversely affecting the complainant’s reasonable enjoyment of their property. In doing so, the council must take account of all relevant factors and must strike a balance between the competing interests of the complainant and hedge owner, as well as the interests of the wider community.

If they consider the circumstances justify it, the council will issue a formal remedial notice to the hedge owner which will set out what they must do to the hedge to remedy the problem, and when by. The compliance period will take into account other restrictions, for example, under the Wildlife and Countryside Act 1981, hedges cannot be cut during nesting season between March and August It remains in force until it is formally withdrawn. A remedial notice is a local land charge and is binding on every owner or occupier for the time being of the land on which the hedge is situated and will show up on a local search undertaken against the property.

Failure to carry out the works required by the council is a criminal offence which, on prosecution, could lead to a fine of up to £1,000. The council also has the power of entry on to the land to take the action specified in the remedial notice and recover its expenses for the works.

If you disagree with the Council’s decision you can appeal to the independent Planning Inspectorate. For England this is the Secretary of State and in Wales this is the National Assembly for Wales. The appeals are dealt with differently in each jurisdiction. In England appeals are decided on the basis of written evidence and a sit visit. In Wales, the appellant and/or the council can request a decision based on a hearing instead of written representations.

Other ways to deal with hedge problems

• Abatement – a self help remedy to abate a nuisance might assist if it the width of a neighbour’s hedge this is causing a problem.
• Court proceedings in nuisance. A claim may a brought in common law private nuisance for injunctive relief and damages.
• Action under the Access to Neighbouring Land Act 1992. The hedge owner can apply to the county court for an order for access to neighbouring land.


TOMORROW

We look at recent developments in Service Charges for residential properties.

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