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Mr. Jim Cunningham: My hon. Friend will find the answer to that question in the explanatory notes, which show that the local authority could be liable.
Mr. Dismore: I am grateful to my hon. Friend for that intervention and I do not dispute that the local authority could be liable. My concern is that the local authority would be judge and jury in its own cause. That is potentially a breach of the Human Rights Act 1998, to which I hope to refer shortly.
Mr. Cunningham: Again, that point is taken care of in the explanatory notes. The Bill provides for an appeals procedure and an adjudication. My hon. Friend's point has already been answered.
Mr. Dismore: I am afraid that my hon. Friend has not convinced me that the point has been answered. By definition, an appeals process suggests that the decision should have been taken fairly in the first instance. An appeals process cannot correct in law a defect in the original procedure. That is trite law. There might be infringements of the Human Rights Act, and I shall expand on that point when I get to that part of my speech.
Mr. Cunningham: I shall describe to my hon. Friend a situation that often arises in local government. A planning authority may give a planning permission that is objected to by a member of the public. The case goes to a planning appeal and, if necessary, if someone want to take it to extremes, to a public inquiry. That parallels the position under this Bill.
Mr. Dismore: A judicial review is going through the courts at the moment. The whole process and, in particular, the involvement of the Secretary of State has been called into question under the human rights legislation. I shall refer to that point later, but I hope that the Bill would not add to the problem by giving a local
authority jurisdiction in its own cause. That point will have to be considered as the Bill progresses. It is not a hypothetical problem. As one of my constituency cases shows, it has arisen before. In that case, the land had been sold on but if it had been owned by the local authority at the time, budget pressures might have led the local authority to decide that it would not cut its trees. Where would that have left the people involved?Is the current provision for the complaints procedure fair? The Bill's phrasing suggests that, when a complaint is made and a local authority adjudicates on it, no provision will be made for a fair hearing for the owner of the trees in question. He can appeal and ask for a review, but that is not the same as being given a right of hearing before the decision is taken. Under clause 4, the authority will simply have to consider the complaint: it will not be required to consider any representations. Indeed, before the complaint is decided, it will not even be required to give notice of the complaint to the owners of the trees. That is a fundamental breach of natural justice, which I hope will be addressed if the Bill proceeds. I support the Bill, but certain problems may arise from it.
My hon. Friend the Member for Ealing, North (Mr. Pound) referred to the work done by the Building Research Establishment at the request of the Department of the Environment, Transport and the Regions. The BRE is working with the Tree Advice Trust to come up with an objective test for light. I have problems with the definitions because the phrase "unreasonable obstruction of light" is a subjective test, yet we are also asking for objective criteria to be set. Perhaps that, too, could be dealt with more effectively in a schedule to the 1990 Act. Including concepts of reasonableness in the Bill will only create a field day for the profession of which the hon. Member for Solihull and I are members.
On the issue of light, the height of the trees, how far they are from boundaries and the point of the compass at which they are situated in relation to the house are relevant considerations. The time of year should also be taken into account because shade varies according to the season.
Page 3 lists a series of matters that the local authority must take into account, but the Bill does not specify how it should do that. There is no requirement for a site visit by local authorities or for them to consider photographs. If they are to get involved, they cannot merely take the complainant's word, which seems to be what is provided for in the Bill as drafted. They should at least pay a site visit--preferably when the sun is shining--so that they can see whether the problem is genuine.
Whether the hedge is in an urban, countryside or suburban environment should also be considered. What is suitable in the countryside is not necessarily suitable in an urban environment, where avenues of cypress trees or yew hedges can cause problems.
There is a difficulty in defining "neighbouring land." What if the land is not neighbouring? I mentioned a case that was referred to me by half a dozen constituents. The trees were not just a problem for the immediate neighbours. The shadows that they cast were so large that four or five other properties were also affected. Does the definition cover people who are further down the street?
Local authorities should consider whether tree preservation orders are attached to the trees, because there may be a good reason for some of them to be allowed to survive. There is no reference to the responsibility of local authorities in that regard.
Mr. John M. Taylor: Clause 4(4)(c) states that the local authority is obliged to take into account
- "any legal obligation (whether imposed by or under any enactment or otherwise) relating to that hedge."
Mr. Dismore: I am grateful for that clarification. It is an important consideration, and I am happy with the definition if it covers it.
On wildlife, I know from research that I have conducted that the Royal Society for the Protection of Birds thinks that there is a problem with enforcement. It says that between October and April birds may well be nesting in the trees concerned. If we are going to issue orders for people to cut down trees or reduce their height, the Bill should ensure that the interests of wildlife are protected. What might be a valid order in the summer months may not be valid in the winter months if it has an impact on birds or other wildlife. I hope that we can incorporate some protection. I do not think that that would be a major change, but local authorities should bear that important consideration in mind.
We also have to consider the health of the trees. Although I am not an arboriculturist, I know that there are times of the year when it is not sensible to prune a tree because it is not good for its health. Another time of the year might be far better. I do not know whether the seasons when it is necessary to protect wildlife and the season when it is necessary to protect trees coincide. No doubt the hon. Member for Solihull has the answer.
Mr. Taylor: I do not have a pat answer, but as a long-standing parliamentary friend of the RSPB, I thoroughly accept the hon. Gentleman's point.
Mr. Dismore: I am grateful to the hon. Gentleman.
I turn now to the health of the trees. As I said, I am not an arboriculturist, so I am not sure whether the tree-cutting season coincides with the season when concerns about protecting birds are paramount. My point is that local authorities should take into account the protection of the health of trees and wildlife in deciding when their orders should take effect,
The Parliamentary Under-Secretary of State for the Environment, Transport and the Regions (Mr. Robert Ainsworth): It is my understanding that the important point raised by my hon. Friend is covered in the Bill. He will know that there is a minimum period for the enforcement of remediation, but no maximum period, and discretion is given to the local authority. It can therefore take into account issues such as the health of the trees and of wildlife when insisting on enforcement.
Mr. Dismore: I am grateful to my hon. Friend for that clarification. If the Bill becomes law, his comments can no doubt be taken into account in any proceedings under the Pepper v. Hart rule which may follow. It would be helpful if that protection were incorporated in the Bill.
We have all, from time to time, heard of officious local government officers who take the letter of the law to extremes, not necessarily because they have been told to do so by their political masters. Indeed, their actions are often entirely to the horror of their political masters, who do not know what is being done in their name.I turn now to the 28-day period before the operative date of a remedial notice. As my hon. Friend said, there is no maximum period--that is left open-ended. Perhaps there ought to be elasticity in the other direction as well, because if the nesting season were approaching or if pruning at a particular time would endanger the tree's health, the people involved in a case might have to wait six months or more before it could be cut back.
I am also concerned about the problem of the continuing maintenance of trees. I am not sure whether any order made under the Bill could be continuous or whether it would be a one-off. No doubt the hon. Member for Solihull can clarify the point. The local authority could order a tree to be trimmed to a height of 2 m once, but the problem might recur the following year and in the years after that.
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