High Hedges Bill

High Hedges Bill - continued	House of Commons
Complaints procedure - continued

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Variation or withdrawal of remedial notices.	6. - (1) A remedial notice may be varied or withdrawn by the relevant authority in pursuance of an application to the authority-
	(a) which is made, at any time after the notice is issued, jointly by-
	(i) a person or persons falling within subsection (2)(a), and
	(ii) a person or persons falling within subsection (2)(b); or
	(b) which is made, at any time after the end of the compliance period, by a person or persons falling within subsection (2) on the grounds that there has been a material change in circumstances.
	(2) The persons falling within this subsection are-
	(a) any person who is the complainant, and
	(b) any person who is the owner or occupier of the neighbouring land.
	(3) Where the relevant authority have made their decision on an application under subsection (1), they must as soon as is reasonably practicable-
	(a) notify each person falling within subsection (2) of the decision and their reasons for it; and
	(b) if the decision is to vary the notice, send each such person a copy of the notice as varied by them.
	(4) Subject to the operation in relation to the notice of any provision made by or under subsection (6) or sections 7 to 9-
	(a) if the decision is to vary the notice, the notice shall have effect as varied by the authority as from the date of the notification given by them under subsection (3); and
	(b) if the decision is to withdraw the notice, the notice shall cease to have effect as from that date.
	(5) The withdrawal of a remedial notice does not prevent the relevant authority issuing a further such notice in respect of the high hedge in question in connection with any subsequent complaint.
	(6) The Secretary of State may by regulations make provision with respect to-
	(a) the procedure to be followed in connection with-
	(i) applications under subsection (1), and
	(ii) decisions of relevant authorities on such applications; and
	(b) other matters consequential on or connected with such applications or decisions.
	(7) Regulations under subsection (6) may in particular-
	(a) in connection with matters falling within paragraph (a) of that subsection, make provision corresponding or similar to any provision made by section 4;
	(b) make provision with respect to the operation or effect of a remedial notice in any respect in a case where an application for the variation of the notice is made under subsection (1)(a) before the end of the compliance period;
	(c) make provision for any decision made on an application by a person or persons under subsection (1) to be binding on other persons falling within subsection (2).
	Appeals
Appeal against remedial notice or decision of relevant authority.	7. - (1) Where the relevant authority-
	(a) issue a remedial notice in accordance with section 4(5), or
	(b) under section 6 decide to vary or withdraw such a notice, or
	(c) under section 6 decide to refuse an application under subsection (1) of that section,
	any person falling within subsection (2) may appeal to the Secretary of State against the notice or decision.
	(2) The persons falling within this subsection are-
	(a) any person who is the complainant; and
	(b) any person who is the owner or occupier of the neighbouring land.
	(3) Where the relevant authority make a decision falling within section 4(6), the complainant may appeal to the Secretary of State against the decision.
	(4) An appeal under this section must be made before-
	(a) the end of the period of 28 days beginning with the relevant date, or
	(b) such later time as the Secretary of State may in writing allow.
	(5) In subsection (4) "the relevant date"-
	(a) in the case of an appeal made in pursuance of subsection (1)(a), means the date on which the notice in question was issued; and
	(b) in the case of any other appeal under this section, means the date of the notification given by the relevant authority under section 4 or 6 in respect of the decision in question.
	(6) Where an appeal is duly made in pursuance of subsection (1)(a) or (b), the notice or (as the case may be) the decision in question shall be of no effect pending the final determination or withdrawal of the appeal.
Appeals procedure.	8. - (1) The Secretary of State may by regulations make provision with respect to-
	(a) the procedure which is to be followed in connection with appeals under section 7, and
	(b) other matters consequential on or connected with such appeals.
	(2) Regulations under this section may, in particular, make provision-
	(a) specifying the grounds on which such appeals may be made;
	(b) prescribing the manner in which such appeals are to be made;
	(c) requiring persons making such appeals to send copies of such documents as may be prescribed to such persons as may be prescribed;
	(d) requiring authorities against whose decisions such appeals are made to send to the Secretary of State such documents as may be prescribed;
	(e) specifying, where an authority are required in pursuance of paragraph (d) to send the Secretary of State a statement indicating the submissions which they propose to put forward on the appeal, the matters to be included in such a statement;
	(f) prescribing the period within which any requirement imposed by the regulations is to be complied with, and enabling any such period to be extended by the Secretary of State;
	(g) dealing with cases where an application under section 6(1) and an appeal under section 7 are made in respect of the same remedial notice;
	(h) for any decision on an appeal made by a person falling within section 7(2) to be binding on other persons falling within that subsection;
	(i) for any incidental or ancillary matters, including the awarding of costs.
	(3) Where any appeal is made to him under section 7 the Secretary of State-
	(a) shall appoint a person to hear and determine the appeal on his behalf, and
	(b) may require such a person to exercise on his behalf any functions which-
	(i) are conferred on him in connection with such an appeal by section 7 or 9 or by regulations under this section, and
	(ii) are specified in that person's appointment;
	and references to the Secretary of State in section 7 or 9 or regulations under this section shall be construed accordingly.
	(4) The Secretary of State may, in the case of a person appointed under subsection (3), pay him such remuneration as the Secretary of State may determine.
	(5) Regulations under this section may provide for any provision of Schedule 20 to the Environment Act 1995 (delegation of appellate functions of Secretary of State) to apply in relation to a person appointed under subsection (3) with such modifications (if any) as may be prescribed.
Determination or withdrawal of appeals.	9. - (1) The Secretary of State may on an appeal under section 7 allow or dismiss the appeal in whole or in part.
	(2) Where the Secretary of State decides to allow such an appeal to any extent, he may-
	(a) quash any remedial notice or decision to which the appeal relates,
	(b) vary such a notice, or
	(c) where such a notice has not been issued by the relevant authority in respect of the complaint in question, issue any such notice in respect of it as could have been issued by that authority,
	as he considers appropriate.
	(3) For the purposes of this section-
	(a) subsection (4) of section 4 shall apply in connection with any decision by the Secretary of State as to either of the issues specified in subsection (3) of that section as it applies in connection with any decision of the relevant authority under that subsection; and
	(b) in section 5 references to the relevant authority shall (where the context permits) include a reference to the Secretary of State.
	(4) Once the Secretary of State has made his decision on an appeal under section 7, he must as soon as is reasonably practicable-
	(a) give a notification of the decision, and
	(b) if the decision is to issue a remedial notice or to vary such a notice, send copies of the notice as issued or varied by him,
	to every person falling within section 7(2) and to the relevant authority.
	(5) Where, in consequence of the Secretary of State's decision on an appeal, a remedial notice is upheld or varied, the operative date of the notice shall be-
	(a) the date of the Secretary of State's decision, or
	(b) such later date as he may specify in his decision.
	(6) Where the person making an appeal under section 7 against a remedial notice withdraws his appeal, the operative date of the notice shall be the date on which the appeal is withdrawn.
	(7) In any case falling within subsection (5) or (6), the compliance period for the notice shall accordingly run from the date which is its operative date by virtue of that subsection (and any period which may have started to run from a date preceding that on which the appeal was made shall accordingly be disregarded).
	Enforcement of remedial notices
Offences.	10. - (1) Where, at any time after the end of the compliance period, any action required by a remedial notice to be taken has not been taken, any person who is then the owner or occupier of the neighbouring land shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
	(2) In proceedings against a person for an offence under subsection (1) it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
	(3) Where a person charged with an offence under subsection (1) was not sent a copy of the remedial notice under any provision of this Act and either-
	(a) at the time of the offence he was the owner of the neighbouring land and the notice was not registered as a local land charge in pursuance of section 5(8), or
	(b) he was not then the owner of that land,
	it shall be a defence for him to show that he was not aware of the existence of the notice.
	In a case where paragraph (b) applies and the notice is so registered, the effect of section 198 of the Law of Property Act 1925 (constructive notice) shall be disregarded for the purposes of this subsection.
	(4) Where a person is convicted of an offence under subsection (1) and it appears to the court that-
	(a) the failure to comply with the remedial notice is continuing, and
	(b) it is in that person's power to comply with it,
	the court may, in addition to or instead of imposing any punishment, order him to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for complying with the notice.
	(5) Where a person fails without reasonable excuse to comply with an order under subsection (4)-
	(a) he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale; and
	(b) if the offence is continued after conviction, he shall be guilty of a further offence and so liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.
Remedial action by relevant authority etc.	11. - (1) Where, at any time after the end of the compliance period, any action required by a remedial notice to be taken has not been taken, the relevant authority-
	(a) may, after giving not less than 7 days' notice of their intention to do so, enter the neighbouring land and take the action so required; and
	(b) may recover any expenses reasonably incurred by them in doing so from any person who is the owner or occupier of the land.
	(2) Any such expenses shall be, until recovered, a local land charge and binding on successive owners or occupiers of the land.
	(3) Where any such expenses are recoverable from two or more persons, they shall be jointly and severally liable for those expenses.
	(4) Section 289 of the Public Health Act 1936 (power of court to require occupier to permit work to be done by owner) shall apply with any necessary modifications for the purpose of giving the owner of land to which a remedial notice relates the right, as against all other persons interested in the land, to comply with the notice.
	(5) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Offences committed by bodies corporate.	12. - (1) Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of-
	(a) any director, manager, secretary or other similar officer of the body corporate, or
	(b) any person who was purporting to act in any such capacity,
	he, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly.
	(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Prepared 27 February 2001